Marshall v. Largo Medical Center, Inc.

Filing 9

ORDER: This action is REMANDED to the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, for lack of subject-matter jurisdiction. Once remand is effected, the Clerk is directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 4/19/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES CLIFFORD MARSHALL,
Plaintiff,
v.

Case No. 8:17-cv-873-T-33TBM

LARGO MEDICIAL CENTER, INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court sua sponte. For the
reasons below, this action is remanded.
Discussion
On March 3, 2017, Plaintiff James Clifford Marshall
filed a complaint against Defendant Largo Medical Center,
Inc. in state court for “Fraudulent and Sham Peer Review” and
defamation. (Doc. # 2). Largo Medical removed the action to
this Court on April 12, 2017, and premised removal on 28
U.S.C. § 1442(a)(1) and Grable & Sons Metal Products, Inc. v.
Darue Engineering and Manufacturing, 545 U.S. 308 (2005).
(Doc. # 1).
Because this Court is a court of limited jurisdiction,
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1260-61 (11th
Cir. 2000), it is under a continual obligation to ensure

jurisdiction exists, Fitzgerald v. Seaboard Sys. R.R., Inc.,
760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam). Section
1442 reads, in part:
(a) A civil action or criminal prosecution that is
commenced in a State court and that is against or
directed to any of the following may be removed by
them to the district court of the United States for
the district and division embracing the place
wherein it is pending:
(1) The United States or any agency thereof or
any officer (or any person acting under that
officer) of the United States or of any agency
thereof,
in
an
official
or
individual
capacity, for or relating to any act under
color of such office or on account of any
right, title or authority claimed under any
Act of Congress for the apprehension or
punishment of criminals or the collection of
the revenue.
28 U.S.C. § 1442(a)(1). When the removing defendant is not a
federal officer, it must satisfy a three-pronged test in order
to remove under § 1442. The defendant “must show [(1)] that
it is a person within the meaning of the statute who acted
under a federal officer”; (2) “that it performed the actions
for which it is being sued under color of federal office,”
i.e., that there is “‘a causal connection between what the
officer has done under asserted official authority and the
action

against

him’”;

and

(3)

that

it

has

“raise[d]

a

colorable federal defense.” Caver v. Cent. Ala. Elec. Coop.,
845 F.3d 1135, 1142 (11th Cir. 2017). “[T]he removal statute’s

2 

‘basic’ purpose is to protect the Federal Government from .
. . interference with its ‘operations’ . . . .” Watson v.
Philip Morris Cos., Inc., 551 U.S. 142, 150 (2007).
Largo Medical asserts it was acting under the direction
of the Secretary of the Department of Health and Human
Services

because

it

reported

information

required

to

be

reported by federal regulation. (Doc. # 1 at 3-6). As the
Supreme Court noted, however:
a highly regulated firm cannot find a statutory
basis for removal in the fact of federal regulation
alone.
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, 551 U.S. at 153. Although Largo Medical must supply
certain information to the Department of Health and Human
Services via the National Practitioner Data Bank, 45 C.F.R.
§

60.2,

the

furnishing

of

such

information

is

merely

compliance with federal regulations. Largo Medical is not,
for example, serving in a capacity similar to that of the
National Practitioner Data Bank, which is the entity that
collects and discloses the relevant information, 45 C.F.R. §
60.1, and thereby aids the Department of Health and Human

3 

Services fulfill its duty under the Health Care Quality
Improvement Act. 42 U.S.C. 11101, et seq.
Furthermore, Largo Medical’s assertion that removal is
proper under Grable also fails to convince the Court. In
Grable, the Internal Revenue Service seized real property
owned by Grable & Sons Metal Products, Inc. 545 U.S. at 310.
The IRS provided notice of the seizure as required under 26
U.S.C. § 6335 via certified mail. Id. Thereafter, the IRS
sold the property to Darue Engineering & Manufacturing. Id.
Five years later, Grable sought to quiet title in the property
by filing suit against Darue in state court, arguing that
Darue’s title was invalid because the IRS had not provided
service in the exact manner required by § 6335. Id. at 311.
Darue removed the action to federal court on the basis of
federal-question jurisdiction. Id.
Grable moved to remand, but the district court denied
the motion. Id. After judgment was entered in favor of Darue,
Grable appealed to the Sixth Circuit Court of Appeals, which
affirmed the district court. Id. Grable then sought review in
the

Supreme

Court,

which,

like

the

Sixth

Circuit,

held

federal-question jurisdiction existed. Id. at 311-12. The
Supreme Court held as much because the meaning of § 6335 was

4 

central to Grable’s claim and the meaning of § 6335 was in
dispute. Id. at 314-315.
In contrast, the Complaint in this action challenges the
peer reviews conducted by Largo Medical on the basis that
they

were

“kangaroo

courts”

designed

to

“destroy

the

reputation and career of [Marshall], and had nothing to do
with the quality of care he rendered to patients at LMC.”
(Doc. # 2 at ¶¶ 21-22). Largo Medical’s alleged machinations
were supposedly motived “solely and exclusively . . . upon
economic considerations.” (Id. at ¶ 23). The Complaint also
alleges the statements made by Largo Medical in its report to
the National Practitioner Data Bank constituted defamation.
(Id. at ¶¶ 26-32). Conspicuously missing from the Complaint
is any challenge to the constitutionality of the National
Practitioner Data Bank or the meaning of any federal statute
or regulation.
Instead, the only federal question apparent from the
record is a possible defense under the Health Care Quality
Improvement Act and its implementing regulations. 42 U.S.C.
§ 11111; 45 C.F.R. § 60.22. Although this colorable federal
defense satisfies Caver’s third prong, it does not affect the
analysis in this case for two reasons. First, as discussed
above, Largo Medical failed to show it was a person who acted

5 

under a federal officer. Second, generally “[i]n determining
whether federal jurisdiction exits, [a court] appl[ies] the
well-pleaded complaint rule, which requires that [it] look to
the face of the complaint rather than to defenses . . . .”
Jones v. LMR Int’l, Inc., 457 F.3d 1174, 1178 (11th Cir. 2006)
(citation omitted).

Thus, the possible federal defense does

not in-and-of-itself support removal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

This action is REMANDED to the Circuit Court of the Sixth
Judicial Circuit, in and for Pinellas County, Florida,
for lack of subject-matter jurisdiction.

(2)

Once remand is effected, the Clerk is directed to CLOSE
THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of April, 2017.

6