Eaton v. Big Blue Healthcare, Inc.

480 F.Supp.3d 1184

Brian EATON, Plaintiff,

v.BIG BLUE HEALTHCARE, INC., doing business as Riverbend Post-Acute Rehabilitation, et al., Defendants.

Case No. 2:20-cv-2291-HLT-JPO

United States District Court, D. Kansas.

Signed August 19, 2020

Rachel D. Stahle, Dollar, Burns & Becker, LC, Kansas City, MO, for Plaintiff.

Matthew Klose, Richard M. Acosta, Robert J. Givens, Barbara K. Christopher, Horn, Aylward & Bandy, LLC, Kansas City, MO, for Defendants Big Blue Healthcare, Inc., Ryan Leiker, Golden Oaks Healthcare, Inc.

Jordan A. Kane, Mathew L. Larsen, Michael J. Kleffner, Robert T. Adams, Shook, Hardy & Bacon LLP, Kansas City, MO, for Defendants Little Blue Health Holdings, LLC, The Ensign Group, Inc., Ensign Services, Inc.

MEMORANDUM AND ORDER ¹

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

Plaintiff Brian Eaton is the surviving son of Brenda Eaton, who was a resident at a care facility, where she contracted and died of COVID-19. Plaintiff filed this wrongful-death action against Defendants—the owners and operators of the care facility—alleging that they were negligent in failing to protect against COVID-19 infections. Defendants removed this case from state court where it was initially filed, arguing that the Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-6d ("PREP Act") provides for "complete preemption" and presents a federal question, which would give this Court jurisdiction. In turn, Plaintiff moves for remand, arguing that the allegations arise solely under state law and the PREP Act does not apply.

The Court agrees that the PREP Act's provisions regarding the administration or use of covered countermeasures are not applicable to the allegations in this case, which allege negligence stemming from a failure to follow certain policies, procedures, and guidelines regarding COVID-19. Accordingly, this Court lacks subject-matter jurisdiction and remands this case to state court.

I. BACKGROUND

Plaintiff, who is the surviving son of Brenda Eaton, filed this lawsuit in the Wyandotte County District Court in Wyandotte County, Kansas. The petition alleges that Eaton was a resident at Riverbend Post-Acute Rehabilitation, where she was exposed to and contracted COVID-19, and which caused her death. Plaintiff sues Defendants for wrongful death.

The petition alleges that Eaton was admitted to Riverbend in 2019 because she was incapable of caring for herself. By March 13, 2020, Plaintiff alleges Riverbend knew of the risks associated with COVID-19 and the importance of preventing its spread throughout the facility. However, in late March, a Riverbend staff member began showing symptoms of COVID-19 and was allowed to work while the staff member had a cough or fever, and without using personal protective equipment. The staff member was tested on March 29, and the results came back positive for COVID-19 on March 30. Despite this, Riverbend residents were still allowed to congregate in common areas after March 29.

By April 3, seventeen residents and two staff members at Riverbend had tested positive. Eaton was diagnosed as COVID-19 positive on April 9 and died from COVID-19 on April 28. Plaintiff claims that Defendants breached their duty of care and were negligent and careless by failing to:

• follow proper infection control protocols and guidelines;

• ensure workers were not working with COVID-19 symptoms;

• provide personal protective equipment to staff;

• separate those with symptoms from those without;

• adhere to social-distancing guidelines;

• respond to the presence of COVID-19 in the facility;

• timely request additional staff and assistance from public health entities; • protect, supervise, and provide 24-hour care to Eaton;

• properly supervise and train staff;

• follow standing orders, instructions, and protocol regarding COVID-19; and

• provide adequate interventions.

Plaintiff alleges that this negligence by Defendants caused Eaton's death.

Defendants removed the case to federal court. Removal is based on federal-question jurisdiction.² Defendants contend that, under the PREP Act, the claims in this case are completely preempted, which gives this Court subject-matter jurisdiction. Shortly after removal, Plaintiff filed a motion to remand this case back to state court.

II. STANDARD

Under 28 U.S.C. § 1447(c), a district court must remand a case "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Federal courts are courts of limited jurisdiction, so the presumption is one of no jurisdiction until an adequate showing of jurisdiction is made. Dutcher v. Matheson , 733 F.3d 980, 985 (10th Cir. 2013). When a party removes a case to federal court, the burden is on that party to establish that federal jurisdiction exists. Id. ; Christensen v. BNSF Ry. Co. , 242 F. Supp. 3d 1186, 1189 (D. Kan. 2017). "Doubtful cases must be resolved in favor of remand." Thurkill v. The Menninger Clinic, Inc. , 72 F. Supp. 2d 1232, 1234 (D. Kan. 1999).

III. ANALYSIS

A. Defendants’ motion for leave to file a surreply is granted.

After this matter was fully briefed, Defendants filed a motion for leave to file a surreply.³ Defendants contend that a surreply is necessary to respond to arguments raised for the first time in Plaintiff's reply. Plaintiff opposes Defendants’ motion.

Surreplies are not permitted without leave of court. See Patterson v. Lansing , 2001 WL 946181, at *2 (D. Kan. 2001). The Court notes that the parties’ briefing regarding the surreply was unnecessarily adversarial. And although the Court is somewhat dubious that Defendants have justified the filing of a surreply or directed their surreply exclusively at arguments they contend were "new" in Plaintiff's reply brief, the Court does note generally that Plaintiff's motion for remand was based solely on the well-pleaded-complaint rule and did not address the doctrine of complete preemption. Accordingly, given the issues at stake and the procedural posture of the case, the Court will permit Defendants’ proposed surreply. It has been considered in deciding the motion to remand.

B. For purposes of federal-question jurisdiction, the general rule is that a plaintiff's complaint dictates whether state or federal law is invoked.

As noted above, Defendants removed this case to federal court citing federal-question jurisdiction. In this case, it is generally undisputed that Plaintiff's complaint does not—on its face—assert a federal claim. Plaintiff alleges negligence under Kansas law. In the absence of diversity, federal courts have jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331. Whether a claim "arises under" federal law generally turns on the "well-pleaded" allegations of the complaint. Dutcher , 733 F.3d at 985 ; Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1202 (10th Cir. 2012). Federal-question jurisdiction exists only if the plaintiff's claims are based on federal law. Devon Energy Prod. , 693 F.3d at 1202. By omitting federal-law claims from a complaint, a plaintiff can effectively avoid removal. Id. Potential affirmative defenses are not considered, including defenses based on preemption. Id. ; Christensen , 242 F. Supp. 3d at 1190.

Here, Plaintiff has alleged negligence under state law. Under the well-pleaded complaint rule, then, there is no federal-question jurisdiction.

C. Remand is appropriate unless the doctrine of complete preemption justifies removal.

Defendants argue that an exception or corollary to the well-pleaded complaint rule applies: the doctrine of complete preemption. See Devon Energy Prod. , 693 F.3d at 1204. "Complete preemption is a rare doctrine" that has only been recognized in a handful of areas. Id. at 1204-05 (quoting Cmty. State Bank v. Strong , 651 F.3d 1241, 1260 n. 16 (11th Cir. 2011) ). It is not to be lightly invoked. Devon Energy Prod. , 693 F.3d at 1205 ; Connolly v. Union Pac. R.R. Co. , 453 F. Supp. 2d 1104, 1109 (E.D. Mo. 2006) ("Courts have cautioned against an expansive application of the exception ...."). Complete preemption is not so much a statement of the breadth of a statute's preemptive power, "but rather as a description of the specific situation in which a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress's intent to permit removal." Devon Energy Prod. , 693 F.3d at 1205 (quoting Schmeling v. NORDAM , 97 F.3d 1336, 1342 (10th Cir. 1996) ).

Importantly, "complete preemption" is not the same thing as "ordinary preemption." See Dutcher , 733 F.3d at 986. Complete preemption is a jurisdictional concept, while ordinary preemption is a defense to liability. See Devon Energy Prod. , 693 F.3d at 1203 n.4 ; Christensen , 242 F. Supp. 3d at 1190 ; see also Schmeling , 97 F.3d at 1342. Ordinary preemption, which can take the form of express, conflict, or field preemption, is generally an affirmative defense that state law has in some way been displaced by federal law. Devon Energy Prod. , 693 F.3d at 1203 n.4. But an ordinary-preemption defense does not make a complaint removable to federal court. See Hansen v. Harper Excavating, Inc. , 641 F.3d 1216, 1221 (10th Cir. 2011).

By contrast, complete preemption is said to make what is ostensibly "a state-law claim purely a creature of federal law, and thus removable from state to federal court from the outset." Id. (internal quotations and citations omitted). The distinction is important. "That is, a state cause of action may not be viable because it is preempted by a federal law—but only if federal law provides its own cause of action does the case raise a federal question that can be heard in federal court." Dutcher , 733 F.3d at 986 ; see also Caterpillar Inc. v. Williams , 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ; Harris v. Pacificare Life & Health Ins. Co. , 514 F. Supp. 2d 1280, 1290 (M.D. Ala. ...