Emma Martin et al v. Serrano Post Acute, LLC, et al

Filing 34

ORDER by Judge Dale S. Fischer GRANTING Motion to Remand (Dkt. No. 13 ). The case is REMANDED to the Superior Court of California, County of Los Angeles. (MD JS-6. Case Terminated.) See Order for specifics. (jp)

JS-6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

EMMA MARTIN, et al.,
Plaintiffs,

CV 20-5937 DSF (SKx)
Order GRANTING Motion to
Remand (Dkt. No. 13)

v.
SERRANO POST ACUTE LLC, et
al.,
Defendants.

Plaintiffs are family members of a man who died of COVID-19 while
a resident of a nursing home owned or operated by the various
Defendants. Defendants removed this case on the basis of federal
officer jurisdiction and federal question jurisdiction. The Court deems
this matter appropriate for decision without oral argument. See Fed.
R. Civ. P. 78; Local Rule 7-15. The hearing set for September 14, 2020
is removed from the Court’s calendar.
I. Background
In short, Plaintiffs argue that Defendants failed to staff the nursing
facility they owned and operated adequately, failed to take proper
precautions to prevent the spread of COVID-19 in the facility, and
failed to react properly to the infections that became present in the
facility. These failings are alleged to have caused the death of the
decedent. The removal in this case is premised around various federal
government directives regarding COVID-19. Defendants claim these
directives are direct and specific enough to allow them to remove this
case as “federal officers.” They further argue that removal is allowed
due to the federal Public Readiness and Emergency Preparedness Act

(PREP Act), 42 U.S.C. §§ 247d-6d, 247d-6e. Generally, the PREP Act
authorizes the Secretary of Health and Human Services to provide
limited immunity to “covered persons” against claims for losses due to
the administration or use of a covered countermeasure as declared by
the Secretary. As most relevant to this case, the Secretary has issued
declarations under the PREP Act to extend PREP Act protections to
COVID-19 testing kits and certain personal protective equipment
(PPE), including certain respiratory protective devices, i.e., masks.
II. Analysis
A.

Federal Officer Removal

Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a)
[the removing party] is a ‘person’ within the meaning of the statute; (b)
there is a causal nexus between its actions, taken pursuant to a federal
officer’s directions, and plaintiff’s claims; and (c) it can assert a
‘colorable federal defense.’” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d
1095, 1099 (9th Cir. 2018).
There is no dispute that the removing parties are persons for the
purposes of the statute, and the Court will assume for the purposes of
this discussion that they have a “colorable federal defense.” The
question then becomes whether Defendants acted “pursuant to a
federal officer’s directions” and there is a “causal nexus” between
Defendants’ actions and Plaintiffs’ claims.
The directions Defendants point to are general regulations and
public directives regarding the provision of medical services. But “[a]
private firm’s compliance (or noncompliance) with federal laws, rules,
and regulations does not by itself fall within the scope of the statutory
phrase ‘acting under’ a federal ‘official.’ And that is so even if the
regulation is highly detailed and even if the private firm’s activities are
highly supervised and monitored.” Watson v. Philip Morris Companies,
Inc., 551 U.S. 142, 153 (2007). Therefore, removal is not justified by
federal officer jurisdiction.

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B.

Complete Preemption

Despite the pleading of only state law claims on the face of the
complaint, Defendants also argue that removal is appropriate under
federal question jurisdiction because of complete preemption. A claim
that is, on its face, a state law claim can be considered to arise under
federal law if “Congress intended the scope of federal law to be so broad
as to entirely replace any state-law claim.” Retail Prop. Tr. v. United
Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014)
(quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)).
This complete preemption that confers federal question jurisdiction
is very rare. See City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir.
2020) (“The Supreme Court has identified only three statutes that meet
this criteria [for complete preemption].”). Despite this, other than
stating the standard for finding complete preemption, Defendants
provide no support for their claim. Defendants make a lengthy
argument in favor of their immunity under the PREP Act, but mere
immunity against state law or preemption of state law is not the
equivalent of complete preemption and does not provide removal
jurisdiction. “[I]t is now settled law that a case may not be removed to
federal court on the basis of a federal defense, including the defense of
pre-emption, even if the defense is anticipated in the plaintiff’s
complaint, and even if both parties concede that the federal defense is
the only question truly at issue.” Caterpillar Inc. v. Williams, 482 U.S.
386, 393 (1987).
It is largely irrelevant that federal courts have exclusive jurisdiction
under the PREP Act because none of the claims in the complaint, on its
face, are brought under that Act. If Defendants believe that some or all
of Plaintiffs’ state law claims are barred by the PREP Act, the
appropriate response is to file a demurrer in state court. If the state
court dismisses the state law claims, Plaintiffs could then decide if they
wish to file claims under the PREP Act in the District of the District of
Columbia, the court with exclusive jurisdiction over such claims. See
42 U.S.C. § 247d-6d(e)(1). Otherwise, the Court declines to find that
Congress has completely occupied the field of actions or inactions
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related to COVID-19 spread and treatment to such a degree that all
state law claims related to that topic are subject to removal.
C.

Imbedded Question of Federal Law

Nor have Defendants established federal jurisdiction due to a
“substantial, imbedded question of federal law.” In order for a state
law claim to provide federal question jurisdiction under this theory, the
“state law claim [must] necessarily raise a stated federal issue, actually
disputed and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state
judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue
Eng’g & Mfg., 545 U.S. 308, 314 (2005). “That is, federal jurisdiction
over a state law claim will lie if a federal issue is: (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable of resolution in
federal court without disrupting the federal-state balance approved by
Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not
enough that the federal issue be significant to the particular parties in
the immediate suit; that will always be true when the state claim
‘necessarily raise[s]’ a disputed federal issue, as Grable separately
requires. The substantiality inquiry under Grable looks instead to the
importance of the issue to the federal system as a whole.” Gunn, 568
U.S. at 260. “[T]he mere use of a federal statute as a predicate for a
state law cause of action does not necessarily transform that cause of
action into a federal claim . . . .” Nevada v. Bank of America Corp., 672
F.3d 661, 675 (9th Cir. 2012). Nor does “the question whether a
particular claim arises under federal law depend[] on the novelty of the
federal issue.” Id. (quoting Merrell Dow Pharms., Inc. v. Thompson,
478 U.S. 804, 817 (1986)).
Defendants argue that they meet this standard for basically the
same reasons that they think there is complete preemption. But the
raised federal issue is Defendants’ defense, not the actual claims made
by Plaintiffs. Defendants also make no attempt to show that this
particular case raises substantial questions important to “the federal
system as a whole,” and it is clear that it does not.

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III. Conclusion
The motion to remand is GRANTED. The case is REMANDED to
the Superior Court of California, County of Los Angeles.
IT IS SO ORDERED.

Date: September 10, 2020

___________________________
Dale S. Fischer
United States District Judge

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