Goldblatt v. HCP Prairie Vill. KS OPCO LLC

516 F.Supp.3d 1251

Nathan GOLDBLATT, Plaintiff,

v.HCP PRAIRIE VILLAGE KS OPCO LLC, et al., Defendants.

Case No. 20-2489-DDC-KGG

United States District Court, D. Kansas.

Signed January 29, 2021

Lucy McShane, Maureen M. Brady, McShane & Brady, LLC, Kansas City, MO, for Plaintiff.

Charlie C.H. Lee, Pro Hac Vice, Kristen A. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Matthew Klose, Richard M. Acosta, Robert J. Givens, Barbara K. Christopher, Horn, Aylward & Bandy, LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge This matter is before the court on plaintiff Nathan Goldblatt's Motion to Remand (Doc. 22). Plaintiff argues that his Kansas state law claims—which defendants removed to federal court—belong back in state court. Defendants argue that a federal law—the Public Readiness and Emergency Preparedness Act (PREP Act)—completely preempts plaintiff's claims, thus providing this court with subject matter jurisdiction over them.

Several federal district courts, including our own, have ruled on similar jurisdictional issues. The court ultimately finds those cases persuasive and concludes that the Secretary of Health and Human Services's December 3, 2020 Amendment to the Declaration reinforces the holdings in those cases. For reasons explained below, the court grant's plaintiff's motion and remands the matter for lack of subject matter jurisdiction.

I. Background

Nathan Goldblatt underwent neck surgery. Doc. 23-1 at 7 (Pet. ¶ 19). Before his release from the hospital, Mr. Goldblatt tested negative for COVID-19. Id. (Pet. ¶ 20). Then, on March 27, 2020, Mr. Goldblatt began residing at an independent living facility called Brighton Gardens of Prairie Village. Id. at 7 (Pet. ¶ 19). He lived there to receive post-surgery rehabilitation care. Id. When admitted to Brighton Gardens, Mr. Goldblatt "was placed in a room with another patient who was showing symptoms of COVID-19." Id. (Pet. ¶ 25).

In early April 2020, Brighton Gardens confirmed its first positive cases of COVID-19 at its facility. Id. (Pet. ¶ 26). By April 24, 2020, 13 residents and seven staff members had tested positive for the virus. Id. (Pet. ¶ 27). By mid-April 2020, Mr. Goldblatt was extremely nauseous, fatigued, and exhibiting COVID-19 symptoms. Id. at 8 (Pet. ¶ 34). Brighton Gardens refused to test Mr. Goldblatt with the concerning symptoms but instead, transferred him back to the hospital on April 18, 2020. Id. (Pet. ¶ 35). At the hospital, Mr. Goldblatt received a diagnosis confirming that he was COVID-19 positive. Id. (Pet. ¶ 36).

On August 24, 2020, Mr. Goldblatt filed a lawsuit in Johnson County, Kansas court bringing state law claims against defendants. Doc. 23-1 at 3 (Pet.). Plaintiff has sued defendants for negligence. He avers, among other things, that:

• "Defendants failed to warn incoming patients of the COVID-19 outbreak at the Brighton Gardens facility." Id. at 8 (Pet. ¶ 37).

• "Defendants failed to ensure its workers were not working with symptoms consistent with COVID-19." Id. at 9 (Pet. ¶ 39).

• "Defendants failed to train, instruct, and/or monitor staff use of proper personal protective equipment to prevent spread of COVID-19." Id. (Pet. ¶ 40).

• "Defendants failed to effectively separate those with symptoms of COVID-19 from the remaining population of the facility." Id. (Pet. ¶ 41).

• "Defendants failed to adhere to social distancing guidelines put in place in mid-March 2020 to keep its residents safe from being exposed to COVID-19." Id. (Pet. ¶ 42).

• "Defendants otherwise failed to sufficiently control or manage the presence of COVID-19 in the facility." Id. (Pet. ¶ 43).

• "Defendants failed to timely implement a plan of improvement to address the COVID-19 outbreak at the facility." Id. (Pet. ¶ 44).

He also alleges that defendants were negligent in:

• "Failing to follow proper guidelines in place for the prevention of COVID-19 outbreaks in long term care facilities[.]" Id. at 10 (Pet. ¶ 46(a)).

• "Failing to ensure its staff was not allowed to work at Brighton Gardens when they exhibited signs and symptoms consisted with COVID-19[.]" Id. (Pet. ¶ 46(b)).

• "Failing to instruct, train, and/or monitor staff regarding the appropriate use of personal protective equipment and infection control protocols[.]" Id. (Pet. ¶ 46(c)).

• "Failing to properly respond to the presence of COVID-19 in the defendant facility to prevent the spread[.]" Id. (Pet. ¶ 46(d)).

• "Failing to timely request additional staff, resources, and other assistance from the public health entities available to respond to COVID-19[.]" Id. (Pet. ¶ 46(e)).

• "Failing to separate the residents with signs and symptoms of COVID-[1]9 from the remaining resident population[.]" Id. (Pet. ¶ 46(f)).

• "Failing to prevent staff members from coming into contact with both COVID-19 positive and negative residents such that staff members spread the virus from person to person[.]" Id. (Pet. ¶ 46(g)).

• "Failing to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19[.]" Id. (Pet. ¶ 46(h)).

• "Failing to timely, consistently, and properly assess, re-assess and document Plaintiff's physical condition[.]" Id. (Pet. ¶ 46(i)).

• "Failing to properly supervise and train Defendants’ agents and/or servants who were responsible for the care, treatment, and oversight of Plaintiff[.]" Id. (Pet. ¶ 46(j)).

• "Failing to carry out and follow standing orders, instructions, and protocol regarding the prevention of COVID-19[.]" Id. (Pet. ¶ 46(k)).

• "Failing to provide adequate training to staff regarding prevention of COVID-19[.]" Id. at 11 (Pet. ¶ 46(l)).

• "Failing to implement appropriate interventions and thereby allowing Plaintiff to be exposed to COVID-19 in the defendant facility[.]" Id. (Pet. ¶ 46(m)).

• "Failing to warn Plaintiff of the COVID-19 outbreak at the Brighton Gardens facility prior to his transfer to the facility[.]" Id. (Pet. ¶ 46(n)).

• "Failing to document changes in Plaintiff's condition[.]" Id. (Pet. ¶ 46(o)).

The court next explains how this state law action made its way to federal court, and then determines whether it properly may remain here.

II. Procedural History

On October 2, 2020, defendants filed a Notice of Removal (Doc. 1). Plaintiff responded by filing a Motion to Remand (Doc. 22) and a Memorandum in Support of that motion (Doc. 23). Defendants filed a responsive Memorandum in Opposition and Request for Jurisdictional Hearing (Doc. 24).¹ Plaintiff has filed no Reply and the deadline to do so has passed.

Defendants also filed a Counterclaim seeking declaratory relief (Doc. 20), a Motion to Dismiss (Doc. 21), and a Memorandum in Support of the Motion to Dismiss (Doc. 23). Plaintiff filed a Response (Doc. 28) to defendants’ Motion to Dismiss. And defendants filed a Reply (Doc. 29).

With this factual and procedural history in mind, the court now reviews the legal standards governing the Motion to Remand.

III. Legal Standard

" ‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]’ " United States v. James , 728 F. App'x 818, 822 (10th Cir. 2018) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994) ). Congress has empowered federal courts to hear certain cases removed from state court. Defendants may remove any state-court, civil action to federal court if the federal court has original jurisdiction over at least one of the plaintiff's claims. 28 U.S.C. § 1441(a) ; 28 U.S.C. § 1367. But, the court must remand the case to state court if the federal court lacks subject matter jurisdiction over the action. 28 U.S.C. § 1447(c). And the "removing party has the burden to demonstrate the appropriateness of removal from state to federal court." Baby C v. Price , 138 F. App'x 81, 83 (10th Cir. 2005) (citation omitted).

IV. Discussion

This case, in a nutshell, requires the court to decide whether plaintiff's claims arise under federal law for purposes of statutory federal question jurisdiction. This question requires the court to consider the doctrine of "complete preemption" and thus determine whether plaintiff's state court allegations fall within the scope of a federal remedial right.

In this case, the relevant remedial right comes from the PREP Act, 42 U.S.C. §§ 247d —d-10. And the scope of that remedial right depends on a few words in the statute, i.e. ,: "injuries directly caused by the administration or use of a covered countermeasure[.]" 42 U.S.C. § 247d-6e(a). Plaintiff's Motion to Remand thus turns on whether this federal remedy envelops plaintiff's removed state law claims. But before diving into that deep well of arguments, the court reviews several general rules governing removal of state law claims to federal court.

A. Removal of Federal Question Cases to Federal Court

Congress has granted federal district courts authority to hear certain civil actions brought originally in state court. See 28 U.S.C. § 1441. "Under the removal statute, ‘any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant’ to federal court." Aetna Health Inc. v. Davila , 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (quoting 28 U.S.C. § 1441(a) ).

"One category of cases of which district courts have original jurisdiction is ‘[f]ederal question’ cases: cases ‘arising under the Constitution, laws, or treaties of the United States.’ " Id. (quoting 28 U.S.C. § 1331 ). "Ordinarily, determining whether a particular case arises under federal law turns on the ‘well-pleaded complaint’ rule." Id. (citation and internal quotation marks omitted). Under this rule, "a suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based on federal law." Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1202 (...