Estate of Jones v. Beverly W. Healthcare, LLC

ESTATE OF MELVIA JONES, et al., Plaintiffs, v. BEVERLY WEST HEALTHCARE, LLC, et al., Defendants.

No. 2:21-cv-05417-AB-AGR

United States District Court, C.D. California

September 14, 2021

ORDER GRANTING MOTION FOR REMAND AND DENYING WITHOUT PREJUDICE MOTION TO DISMISS

HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE

Before the Court is Plaintiff Estate of Melvia Jones, et al.'s (“Plaintiffs”) Motion for Remand (“Motion ” Dkt. No. 16). Defendant Beverly West Healthcare, LLC (“Defendant”) filed an opposition and Plaintiffs filed a reply. The Motion is GRANTED.

I. BACKGROUND

Plaintiffs filed this action in Los Angeles County Superior Court, alleging that Defendant, a 24-hour skilled nursing facility, is responsible for the death of decedent Melvia Jones, who lived there, due to COVID-19. See generally Compl. (Dkt. No. 1-1). The Complaint alleges that Ms. Jones received substandard care with respect to her nourishment and general treatment, that Defendant refused to send her to the hospital in the weeks prior to her death despite abnormal lab results and an x-ray that indicated pneumonia, and that appropriate measures were not taken to protect her from Covid-19 despite her vulnerability to it. Compl. ¶ 15. Defendant sent Ms. Jones to the hospital on May 26, 2020, and she died the next day apparently from Covid-19. Compl. ¶¶ 15, 19. Plaintiffs allege that Defendant failed to take certain steps to prevent the spread of Covid-19 within the facility, in the following ways: Defendant allowed nurses who tested positive for Covid-19 to work with patients including Ms. Jones; Defendant admitted a Covid-positive patient and failed to inform patients' families; Defendant failed to notify Ms. Jones or her family of Covid-19 cases in the facility in a timely manner so they could relocate her elsewhere; Defendant failed to test residents for Covid-19 until about May 20, 2020; and Defendant failed to provide sufficient personal protective equipment (“PPE”) for staff. See Compl. ¶ 17.

Based on these allegations, the Complaint asserts five causes of action under state law. The first and third claims assert elder abuse and neglect in violation of Cal. Welfare & Institutions Code §§ 15600, et seq., and violation of California's patients' bills of rights, Cal. Health & Safety Code § 1430(b), respectively. Plaintiffs' three remaining state-law claims allege negligence and/or negligence per se, wrongful death, and concealment.

Defendant removed the action asserting subject matter jurisdiction on three grounds: (1) the federal officer statute 28 U.S.C. § 1442(a)(1), given the CDC's ongoing directives to respond to and control the COVID-19 pandemic; (2) complete preemption pursuant to the PREP Act, 42 U.S.C. §§ 247d-6d, 247d-6e; and (3) the Grable doctrine. See Notice of Removal (“NOR, ” Dkt. No. 1). Plaintiffs move for remand, arguing that none of these bases of jurisdiction apply.

II. LEGAL STANDARD

A defendant may remove a civil action filed in state court to federal district court when the federal court has original jurisdiction over the action. 28 U.S.C. §1441(a). “The burden of establishing jurisdiction falls on the party invoking the removal statute, which is strictly construed against removal.” Sullivan v. First Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal jurisdiction must be rejected. Id. at 566-67; see also Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Id. at 566) (“[T]he court resolves all ambiguity in favor of remand to state court.”).

III. JUDICIAL NOTICE

The Court may take judicial notice of facts not subject to reasonable dispute that are either “generally known” in the community, or “capable of accurate and ready determination” by reference to sources whose accuracy cannot be reasonably questioned. Fed.R.Evid. 201(b).

Here, Defendants request that the Court take judicial notice of 34 documents that reflect official acts of the United States Health and Human Services Secretary (“HHS”) and his office, the official acts of federal state administrative agencies such as the Center for Disease Control (“CDC”), the Centers for Medicare and Medicaid Services (“CMS”), the California Department of Public Health (“CDPH”), and court filings from similar cases. See Def's Request for Judicial Notice (“RJN, ” Dkt. No. 21). “Under Rule 201, the court can take judicial notice of ‘public records and government documents available from reliable sources on the internet' such as websites run by government agencies.” U.S. ex rel. Modglin v. DJO Global Inc., 48 F.Supp.3d 1362, 1381 (C.D. Cal. 2014). Because these documents are matters of public record and available from reliable sources on the internet, the Court finds that they are not subject to reasonable dispute. Thus, Defendant's request is GRANTED.

IV. DISCUSSION

This Court and many others in the Central District of California have previously addressed these jurisdictional questions in the context of state law tort suits arising out of COVID-19 deaths in care facilities. All but one case in the Central District have determined that the federal courts lack jurisdiction under any of the three theories presented by Defendant, and therefore that removal is improper and remand is required. See Nava v. Parkwest Rehab. Ctr. LLC, No. 20-CV-07571-ODW-AFMX, 2021 WL 1253577, at *4 (C.D. Cal. Apr. 5, 2021) (Wright, J.); Padilla v. Brookfield Healthcare Ctr., No. CV 21-2062-DMG (ASX), 2021 WL 1549689, at *6 (C.D. Cal. Apr. 19, 2021) (Gee, J.); Lyons v. Cucumber Holdings, LLC, No. CV-20-10571-JFW-JPRX, 2021 WL 364640, at *6 (C.D. Cal. Feb. 3, 2021) (Walter, J.); Smith v. Colonial Care Ctr., Inc., No. 2:21-CV-00494-RGK-PD, 2021 WL 1087284, at *9 (C.D. Cal. Mar. 19, 2021) (Klausner, J.); Thomas v. Century Villa Inc., No. 2:21-CV-03013-MCS-KS, 2021 WL 2400970, at *7 (C.D. Cal. June 10, 2021) (Scarsi, J.); Golbad v. GHC of Canoga Park, No. 221CV01967ODWPDX, 2021 WL 1753624, at *3 (C.D. Cal. May 4, 2021) (Wright, J.); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB-PVC, 2021 WL 911951, at *6 (C.D. Cal. Mar. 1, 2021) (Blumenfeld, J.); Winn v. California Post Acute LLC, No. CV2102854PAMARX, 2021 WL 1292507, at *5 (C.D. Cal. Apr. 6, 2021) (Anderson, J.); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326-JFW(PVCX), 2021 WL 1163572, at *8 (C.D. Cal. Mar. 26, 2021) (Walter, J.); Jackie Saldana v. Glenhaven Healthcare LLC, No. CV-20-5631-FMO-MAAX, 2020 WL 6713995, at *3 (C.D. Cal. Oct. 14, 2020) (Olguin, J.); Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF (SKX), 2020 WL 5422949, at *3 (C.D. Cal. Sept. 10, 2020) (Fischer, J.); Romeo v. Canoga Healthcare, Inc., 2021 WL 3418730, at *3 (C.D. Cal. Aug. 5, 2021) (Birotte, J.); Estate of Joseph Benjamin Serrano, et al. v. San Antonio Acute LLC, et al., Case No. EDCV 21-1169JGB (SHKx) (C.D. Cal. July 21, 2021) (Bernal J.); but see Garcia v. Welltower OpCo Grp. LLC, No. SACV2002250JVSKESX, 2021 WL 492581, at *7 (C.D. Cal. Feb. 10, 2021) (Selna, J.) (deferring to OGC Advisory Opinion).

The overwhelming majority of district courts nationwide have likewise found that federal courts lack jurisdiction under these theories. See Mot. fn. 2 and Reply pp. 3-5 (citing cases throughout the country finding no jurisdiction);but see Rachal v. Natchitoches Nursing & Rehab Center LLC, Civil Docket No. 1:21-CV-00334 *11 (W.D. La. April 30, 2021) (deferring to OCG Advisory Opinion).

That so many courts have ruled the same way is compelling. The Court explains below why it declines to follow the reasoning of Garcia and Rachal. Once again, the Court finds the weight of opinion of its sister courts persuasive, and accordingly this Order relies on them.

A. The Federal Officer Removal Statute Does Not Establish Jurisdiction.

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). This is an exception to the well-pleaded complaint rule, which typically requires a federal question to be pleaded in the complaint in order for the court to have subject matter jurisdiction based on a federal question. See N.G. v. Downey Reg'l Med. Ctr., 140 F.Supp.3d 1036, 1039 (C.D. Cal. 2015).

There is no dispute that the removing parties are persons for purposes of the statute. The next inquiry is whether Defendants acted “pursuant to a federal officer's directions, ” whether there is a “causal nexus” between Defendant's actions and Plaintiffs' claims, and whether Defendants can assert a colorable federal defense. Defendants point to government regulations and public directives regarding the response to the COVID-19 pandemic. The court in Fidelitad noted that, “[f]or a private entity to be acting under a federal officer, the private entity must be involved in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Fidelitad, Inc., 904 F.3d at 1095. Further, 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...