Boyle v. Meyer

MEMORANDUM OPINION

CHRISTY CRISWELL WIEGAND UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs' Motion to Remand Case to State Court ("Motion to Remand"), ECF No. 7. For the reasons that follow, Plaintiffs' motion is hereby GRANTED.

I. Background

On April 20, 2021, Plaintiffs John Boyle and Cheryl McKinney filed a Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, against Defendants Orthopedic & Sports Physical Therapy Associates, Inc. ("Defendant OSPTA")^[1] and Judith Meyer, P.T. ("Defendant Meyer"). ECF No. 1-1. Defendant Meyer, who was employed by Defendant OSPTA, went to Plaintiff Boyle's home to provide at-home physical therapy following Plaintiff Boyle's open-heart surgery. Id. ¶¶ 13-17. Plaintiffs allege that on November 8, 2020 Defendant Meyer arrived at Plaintiff Boyle's house and "was not wearing gloves, a face shield, or an appropriate

2

face mask; ... [she] only had a thin, disposable surgical mask." Id. ¶¶ 16. The Complaint alleges that Defendant Meyer immediately shook Plaintiff Boyle's hand on arrival, did not wash her hands upon arrival or before physical therapy, and touched numerous surfaces. Id. ¶¶ 18-21. On November 14, 2020, Defendant Meyer informed Plaintiffs that she had tested positive for COVID-19. Id. ¶ 24. Shortly thereafter, both Plaintiffs developed COVID-19 related symptoms, were admitted to the hospital for approximately 10 days, and were put on oxygen. Id. ¶¶ 25-28. Plaintiffs allege that they did not have any outside contact with any individual other than Judith Meyers and that they continue to suffer adverse effects of COVID-19. Id. ¶ 29-30.

Plaintiffs assert two state law causes of action: one count of negligence against Defendant Meyer (Count I) and one count of negligence under a respondeat superior theory against Defendant OSPTA (Count II). Id. ¶¶ 31-46. With respect to Count I, Plaintiffs allege that Defendant Meyer had and breached a "duty to wear PPE and ensure that they would not be exposed to unreasonable risk of harm that [Defendant Meyers] should have known about." Id. ¶¶ 32-34. With respect to Count II, Plaintiffs allege that Defendant OSPTA is liable for the negligent acts of Defendant Meyer and that Defendant OSPTA failed to create and enforce effective COVID-19 policies, properly and consistently train, retrain, and guide Defendant Meyer, failed to provide adequate supervision of Defendant Meyer regarding the appropriate standards of care in the context of COVID-19, and failed to provide adequate safeguards and screening of its employees so as to prevent the spread of COVID-19. Id. ¶¶ 42-44.

Plaintiffs' Complaint was served on Defendants on April 23, 2021, ECF No. 1-1 at 14, and Defendants timely removed the action pursuant to 28 U.S.C. §§ 1331, 1441, and 1446 to the Western District of Pennsylvania on May 24, 2021. ECF No. 1.

3

Plaintiffs moved to remand the case to state court on June 4, 2021. ECF No. 7. Defendants filed a motion to dismiss on June 22, 2021. ECF No. 10. The parties' briefing on the motion to dismiss includes information that is relevant to the Court's threshold decision on whether the case must be remanded to state court for lack of subject matter jurisdiction. As such, the Court has considered the parties' briefing on both motions to the extent the arguments therein relate to the issue of removal jurisdiction. See ECF Nos. 8, 11, 12, 15, 16.

II. Legal Standard

A district court has original jurisdiction over claims "arising under the Constitution, treaties or laws of the United States." 28 U.S.C. § 1331. To determine whether a claim "arises under" federal law, and thus is removable from state court by a defendant, the Court applies the "well-pleaded complaint rule." See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L.Ed.2d 55, 107 S.Ct. 1542 (1987); see also Allstate Ins. Co. v. 65 Security Plan, 879 F.2d 90, 92-93 (3d Cir. 1989). Under the well-pleaded complaint rule, removal is proper only if a federal question is presented on the face of the plaintiffs properly pleaded complaint. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12 (1983). Thus, a federal defense to a plaintiffs state law cause of action, including a defense based on preemption, is typically insufficient to warrant removal to federal court. Dukes v. U.S. Healthcare, 57 F.3d 350, 353-54 (3d Cir. 1995).

Although "a federal court may look beyond the face of the complaint to determine whether a plaintiff has artfully pleaded his suit so as to couch a federal claim in terms of state law," Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393, 400 (3d Cir. 2004) (quoting Pryzbowski v. US. Healthcare, Inc., 245 F.3d 266, 274 (3d Cir. 2001)), the burden of establishing removal jurisdiction rests with Defendants. Dukes, 57 F.32 at 359. Any doubts as

4

to jurisdiction upon removal "should be resolved in favor of remand." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)).

III. Analysis

Defendants assert that removal is proper for several reasons: (1) because the PREP Act completely preempts Plaintiffs' claims; (2) under the Federal-Officer-Removal Statute (28 U.S.C. § 1442(a)(1)); and (3) the Complaint necessarily raises a substantial, disputed federal question under the Grable^[2] doctrine. See ECF No. 11 at 4-6; ECF No. 12 at 5 19; ECF No. 16 at 2-5. Plaintiff opposes all these grounds for removal. See ECF No. 8 at 6-15; ECF No. 15 at 5-12. The Court will discuss each ground in turn in the context of the recent Third Circuit case Estate of Maglioli v. All. HC Holdings LLC, Nos. 20-2833, 20-2834, 2021 U.S. App. LEXIS 31526 (3d Cir. Oct. 20, 2021) which addressed many of these issues.

A. The PREP Act Does Not Completely Preempt Plaintiffs' Negligence Claims and Thus Does Not Provide Removal Jurisdiction for Defendants

The Supreme Court has recognized an exception to the well-pleaded complaint rule known as "complete preemption," which applies when Congress has "so completely pre-empt[ed] a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Dukes, 57 F.32 at 354 (citing Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)). In Estate of Maglioli v. All. HC Holdings LLC, the Third Circuit ruled that the PREP Act^[3]completely preempted a cause of action for willful misconduct, but did not preempt a state law

5

negligence claim. Nos. 20-2833, 20-2834, 2021 U.S. App. LEXIS 31526, at *24-31 (3d Cir. Oct. 20, 2021); ECF No. 17 ¶ 2 (noting that PREP Act "does not completely preempt a negligence state law claim"). Because the Maglioli plaintiffs' state law claims of negligence and wrongful death did not fall into the "narrow cause of action for willful misconduct," the Third Circuit found that district court did not have removal jurisdiction and remand was proper. Maglioli, 2021 U.S. App. LEXIS 31526, at *31.

Here, the Complaint sets forth two counts of negligence, ECF No. 1-1 ¶11 31-46, which, like the causes of action in Maglioli, do not fall within the narrow cause of action for willful misconduct. Maglioli, 2021 U.S. App. LEXIS 31526, at *26 (noting that the "PREP Act's cause of action for willful misconduct 'establishes] a standard for liability that is more stringent than a standard of negligence in any form or recklessness.'" (citing 42 U.S.C. § 247d-6d(c)(1)(B)).

Thus, Plaintiffs' claims are not completely preempted by the PREP Act, and Defendants may not remove this action on the ground of complete preemption.

B. The Federal-Officer-Removal Statute (28 U.S.C. § 1442(a)(1)) Does Not Provide Removal Jurisdiction for Defendants.

Under the federal-officer-removal statute, certain officers of the United States may remove actions to federal court. 28 U.S.C. § 1442(a)(1). To do so, a defendant must meet four requirements:

(1) the defendant must be a "person" within the meaning of the statute; (2) the plaintiffs claims must be based upon the defendant "acting under" the United States, its agencies, or its officers; (3) the plaintiffs claims against the defendant must be "for or relating to" an act under color of federal office; and (4) the defendant must raise a colorable federal defense to the plaintiffs claims

Maglioli, 2021 U.S. App. LEXIS 31526, at *12 (internal citations omitted). All four prongs must be met for the Court to exercise jurisdiction under 28 U.S.C. § 1442(a)(1). See Id. (finding that

6

the failure second prong dispositive). Here, the parties appear to dispute whether Defendants have satisfied the second, third, and fourth prongs. ECF No. 8 at 10-15; ECF No. 12 at 16-19.

With respect to the second prong under the federal-officer-removal statute, a private party must show that it was "acting under" federal officers. See Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007). Although recognizing that the phrase "acting under" must be liberally construed, when applying the second prong to actions by nursing homes during the COVID-19 pandemic, the Third Circuit found that "[m]erely complying with federal laws and regulations is not 'acting under' a federal officer for purposes of federal-officer removal," and private parties, such as nursing homes, must show that their "actions 'involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.'" Maglioli, 2021 U.S. App. LEXIS 31526, at *12-13 (citing Watson, 551 U.S. at 147, 152) (emphasis original). The Third Circuit continued by noting that even if a private party is subject to specific and close...