Corbett v. Longwood Plantation-FHE, LLC

674 F.Supp.3d 245

Ann T. CORBETT, individually and as the Personal Representativeof the Estate of Patrick Corbett, deceased, Plaintiff, v. LONGWOOD PLANTATION-FHE, LLC,doing business as Longwood Planation and Magnolia Place;and J. Clay Fowler, individually and as an owner and memberof Longwood Plantation-FHE, LLC, and as an owner and memberof Longwood Plantation Home Care-FHE, LLC;and Paula Fowler, individually and as an ownerand member of Longwood Plantation-FHE, LLC and as an ownerand Member of Longwood Plantation Home Care-FHE, LLC, Defendants.

C/A No. 1:23-cv-0635-JFA

United States District Court, D. South Carolina, Orangeburg Division

Filed May 25, 2023

Signed May 24, 2023

Glenn Walters, Orangeburg, SC, for Plaintiff.

Ashley Sumner Heslop, Daniel Richard Fuerst, Jennie Marie Smith, Hall Booth Smith, Mt. Pleasant, SC, for Defendants.

ORDER

Joseph F. Anderson, Jr., United States District Judge

This matter is currently before the Court on the Defendants Longwood Plantation-FHE, LLC ("Longwood Plantation"); Longwood Home Care-FHE, LLC ("Longwood Home Care"); J. Clay Fowler ("Clay Fowler"); and Paula Fowler ("Paula Fowler") (collectively "Defendants") Motion to Dismiss pursuant to Rule 12(b)(6), 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure. (ECF No. 9). Having been fully briefed, this matter is ripe for review.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from the death of Patrick Corbett ("decedent") after his residency at Defendant Longwood Plantation-FHE, LLC's ("Longwood Plantation" or "Magnolia Place") memory care unit of its South Carolina assisted living facility. Accepting as true the facts alleged in the Complaint, the decedent became a resident of Defendant's assisted living facility on June 12, 2019. During his residency, Plaintiff alleges numerous acts of negligence of Defendants and its employees related to decedent's nutrition, risk of falls, proper administration of medication, and COVID-19 exposure. On August 7, 2020, decedent tested positive for COVID-19 and on August 14, 2020, he was admitted to the hospital for atrial fibrillation, acute kidney failure, dehydration, acidosis, multi-system organ failure, and acute respiratory failure. Subsequently, on August 17, 2020, decedent passed away.

On November 14, 2022, Plaintiff, Ann T. Corbett, as the personal representative of decedent's estate ("Plaintiff") filed the instant suit in the Court of Common Pleas for the County of Orangeburg. (ECF No. 1-1). Plaintiff asserts the following cause of action in her Complaint: (1) gross negligence—medical malpractice, a survival action against all defendants; (2) gross negligence—medical malpractice, a wrongful death action against all defendants; (3) negligent hiring, training, and retention against all defendants, and (4) breach of contract against defendants Longwood Plantation and Longwood Home Care. Id.

On February 14, 2023, Defendants removed this suit to District Court for the District of South Carolina on the grounds of: (1) express exclusive federal jurisdiction; (2) federal question jurisdiction based on complete preemption; (3) embedded federal question jurisdiction pursuant to Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005); and (4) the federal officer removal statute, 28 U.S.C. § 1442(a)(1).

II. LEGAL STANDARD

12(b)(1)

When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) on the grounds that the complaint fails to state facts upon which jurisdiction can be founded, "all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The plaintiff has the burden of proving jurisdiction, and the court may go beyond the face of the complaint and consider evidence without converting the motion into one for summary judgment. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

A complaint should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure if the court lacks jurisdiction over the subject matter. See Fed.R.Civ.P. 12(b)(1). Subject matter jurisdiction in the federal courts is limited to the adjudication of actual "cases" and "controversies" under Article III of the United States Constitution. See U.S. Const. art. III, § 2; Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988) ("Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants."); Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991). If a dispute is not ripe for judicial review, then it does not meet the case or controversy requirement. See Bryant, 924 F.2d at 529 ("Doctrines like standing, mootness, and ripeness are simply subsets of Article III's command that the courts resolve disputes, rather than emit random advice."). This doctrine exists " 'to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.' " Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)).

12(b)(3)

Rule 12(b)(3) provides that a party may raise the defense of "improper venue" by motion seeking dismissal of claims for relief before filing a responsive pleading. Fed. R. Civ. P. 12(b)(3). "Whether venue is 'wrong' or 'improper' depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws[.]" Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). "When a defendant objects to venue under Rule 12(b)(3), the plaintiff bears the burden of establishing that venue is proper." Ameristone Tile, LLC v. Ceramic Consulting Corp., Inc., 966 F. Supp. 2d 604, 616 (D.S.C. 2013) (citation and internal quotation marks omitted). However, the plaintiff is required "to make only a prima facie showing of proper venue in order to survive a motion to dismiss." Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 366 (4th Cir. 2012) (citing Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004)). "In assessing whether there has been a prima facie venue showing, [the court] view[s] the facts in the light most favorable to the plaintiff." Id. Moreover, "[o]n a motion to dismiss under Rule 12(b)(3), the court is permitted to consider evidence outside the pleadings." Id. at 365-66. To grant a motion under Rule 12(b)(3), the court must find that venue is improper. See Fed. R. Civ. P. 12(b)(3).

12(b)(6)

A complaint may be dismissed if it fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Under Rule 8 of the FRCP, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face to survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 580, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In reviewing the adequacy of a complaint, a court "should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at 555, 127 S.Ct. 1955. According to the U.S. Court of Appeals for the Fourth Circuit, "a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., 7 F.3d at 1134.

III. DISCUSSION

Defendants argue this Court should dismiss Plaintiff's claims for the following reasons: (1) Defendants are immune from suit and liability under the Public Readiness and Emergency Preparedness act ("PREP Act"), 42 U.S.C. §§ 247d-6d, 247d-6e; (2) Defendants are immune from liability under the South Carolina COVID-19 Liability Immunity Act (the "S.C. Immunity Act"), S.C. Laws Act 99 (S.147) (2021); (3) the PREP Act defensively preempts any purported state law claims; and (4) to the extent the Court finds Defendants subject to suit under the PREP Act, Plaintiff failed to commence suit in the proper venue and failed to exhaust her administrative remedies.

To begin, this Court will provide some background on the applicable law. As another court in this district has previously stated, "[t]he PREP Act is not new." See Dozier v. Carlyle Senior Care of Kingstree, LLC, 2021 WL 10433374, at *3 (D.S.C. Nov. 30, 2021). "It was enacted in 2005 but lies dormant until the Secretary of the Department of Health and Human Services ("HHS") declares a public health emergency. See 42 U.S.C. § 247-d-6d(b). Once active, it immunizes certain parties from certain lawsuits during public health emergencies." Id. Generally, the PREP Act provides that:

A covered person shall be immune from suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure if a declaration [by the Secretary of Health and Human Services] has been issued with respect to such countermeasure.

42 U.S.C. § 247-d-6d(a)(1). On March 17, 2020, the Secretary of HHS issued a declaration under the PREP Act, declaring that COVID-19 was a public health emergency. Declaration Under the Public Readiness and...