Grohmann v. HCP Prairie Vill. KS OPCO LLC

516 F.Supp.3d 1267

Gordan GROHMANN, Jr., individually and as Special administrator of Estate of Gordon Grohman, Sr., Plaintiff,

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

Case No. 20-2304-DDC-JPO

United States District Court, D. Kansas.

Signed January 29, 2021

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

Barbara K. Christopher, Matthew Klose, Richard M. Acosta, Robert J. Givens, Horn, Aylward & Bandy, LLC, Kansas City, MO, Charlie C.H. Lee, Pro Hac Vice, Kristen A. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Harold Eric Hilton, Pro Hac Vice, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, Jeanne Sourgens, Joseph Hollander & Craft LLC, Lawrence, KS, Ross A. Hollander, Joseph, Hollander & Craft, LLC, Wichita, KS, Anne M. Kindling, Joseph, Hollander & Craft, LLC, Topeka, KS, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge This matter is before the court on plaintiff's Motion to Remand to State Court (Doc. 15). Plaintiff argues that his Kansas state law claims belong 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.

While plaintiff's remand motion was pending, several federal district courts, including our own, 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 remands the matter for lack of subject matter jurisdiction.

I. Background

Gordon Grohman, Sr.¹ lived in the northeast Kansas town of Prairie Village. Doc. 1-1 at 2 (Pet. ¶ 1). Around August 2018, he began to reside at Brighton Gardens of Prairie Village, an independent living facility. Id. at 2–3 (Pet. ¶¶ 1, 7). He was a paying resident there for the purpose of receiving protective care and oversight and all other necessary care for his existence because he was unable to care for himself. Id. at 7 (Pet. ¶ 23).

In early to mid-April 2020, Brighton Gardens confirmed its first positive cases of COVID-19 at its facility. Id. (Pet. ¶ 28). By April 24, 2020, 13 residents and seven staff members had tested positive for COVID-19. Id. (Pet. ¶ 29). While a resident at Brighton Gardens, Mr. Grohman was exposed to COVID-19. Id. at 2 (Pet. ¶ 2). By April 29, 2020, he was extremely confused and exhibited multiple symptoms of COVID-19. Id. at 8 (Pet. ¶ 35). His family insisted that Brighton Gardens arrange to transport him to the hospital on April 29, 2020. Id. (Pet. ¶ 36). On April 30, 2020, Mr. Grohman was diagnosed COVID-19 positive. Id. (Pet. ¶ 37). The next day, he died from the virus. Id. at 2, 8 (Pet. ¶¶ 1–2, 38).

On May 18, 2020, plaintiff filed this action in Johnson County, Kansas District Court individually and as Special Administrator of the Estate of Gordon Grohman, Sr. Id. at 2 (Pet.). Plaintiff has sued defendants for wrongful death, lost chance of survival, and negligence. He avers, among other things, that:

• Defendants "failed to timely intervene to obtain medical attention for" decedent. Doc. 1-1 at 8 (Pet. ¶ 36).

• "Defendants failed to ensure its workers were not working with symptoms consistent with COVID-19." Id. (Pet. ¶ 40).

• "Defendants failed to train, instruct, and/or monitor staff use of proper personal protective equipment to prevent spread of COVID-19." Id. at 8–9 (Pet. ¶ 41).

• "Defendants failed to effectively separate those with symptoms of COVID-19 from the remaining population of the facility." Id. at 9 (Pet. ¶ 42).

• "Defendants failed 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. ¶ 43).

• "Defendants otherwise failed to sufficiently control or manage the presence of COVID-19 in the facility." Id. (Pet. ¶ 44).

• "Defendants failed to timely implement a plan of improvement to address the COVID-19 outbreak at the facility." Id. (Pet. ¶ 45).

• "Defendants negligently failed to follow proper infection control protocols and prevent an outbreak of COVID-19." Id. at 8 (Pet. ¶ 39).

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. (Pet. ¶ 47(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. ¶ 47(b)).

• "failing to instruct, train, and/or monitor staff regarding the appropriate use of personal protective equipment and infection control protocols[.]" Id. (Pet. ¶ 47(c)).

• "failing to properly respond to the presence of COVID-19 in the defendant facility to prevent spread[.]" Id. (Pet. ¶ 47(d)).

• "failing to timely request additional staff, resources, and other assistance from the public health entities available to respond to COVID-19[.]" Id. (Pet. ¶ 47(e)).

• "failing to separate residents with signs and symptoms of COVID-19 from the remaining resident population[.]" Id. (Pet. ¶ 47(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. ¶ 47(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. ¶ 47(h)).

• "failing to timely, consistently, and properly assess, re-assess and document Gordon Grohman's physical condition[.]" Id. (Pet. ¶ 47(i)).

• "failing to properly supervise and train Defendants' agents and/or servants who were responsible for the care, treatment, and oversight of Gordon Grohman, Sr." Id. (Pet. ¶ 47(j)).

• "failing to carry out and follow standing orders, instructions, and protocol regarding the prevention of COVID-19[.]" Id. (Pet. ¶ 47(k)).

• "failing to provide adequate training to staff regarding prevention of COVID-19[.]" Id. (Pet. ¶ 47(l)).

• "failing to implement appropriate interventions and thereby allowing Gordon Grohman, Sr. to be exposed to COVID-19 in the defendant facility[.]" Id. (Pet. ¶ 47(m)).

• "failing to document changes in Gordon Grohman, Sr.’s condition[.]" Id. (Pet. ¶ 47(n)).

• "failing to adequately, accurately and timely monitor Gordon Grohman, Sr.’s changes in condition[.]" Id.

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 June 19, 2020, defendants filed a Notice of Removal with this court (Doc. 1). They followed up by filing a Motion to Dismiss for Failure to State a Claim (Doc. 8). Plaintiff then filed a Motion to Remand to State Court (Doc. 15). Defendants filed a Response and Request for Jurisdictional Hearing (Doc. 36). And plaintiff filed a Reply (Doc. 39).²

Defendants also filed a Counterclaim for declaratory relief (Doc. 35). Plaintiff filed a Motion to Dismiss the Counterclaim (Doc. 42) and a Memorandum in Support (Doc. 43). Defendant filed a Response and Request for Hearing (Doc. 52). And plaintiff filed a Reply (Doc. 53).

A. Defendants' Motion for Leave to File Surreply

On August 26, defendants filed a Motion for Leave to File Surreply (Doc. 41) to plaintiff's Reply supporting his Motion to Remand. Plaintiff responded (Doc. 45).

The court's local rules limit briefing on motions to the motion, a memorandum in support, a response, and a reply. D. Kan. Rule 7.1(a) & (c). "Surreplies are typically not allowed." Taylor v. Sebelius , 350 F. Supp. 2d 888, 900 (D. Kan. 2004), aff'd on other grounds , 189 F. App'x 752 (10th Cir. 2006). Instead, sur-replies are permitted only with leave of court under "rare circumstances." Humphries v. Williams Nat. Gas Co. , No. 96-4196-SAC, 1998 WL 982903, at *1 (D. Kan. Sept. 23, 1998) (citations omitted); see also In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig. , No. 17-MD-2785-DDC-TJJ, 2020 WL 1180550, at *5 (D. Kan. Mar. 10, 2020). For example, when a moving party raises new material for the first time in a reply, the district court has discretion to grant leave to file a sur-reply to afford the opposing party an opportunity to respond to the new material. Green v. New Mexico , 420 F.3d 1189, 1196 (10th Cir. 2005) ; Doebele v. Sprint/United Mgmt. Co. , 342 F.3d 1117, 1139 n.13 (10th Cir. 2003). The rules limiting sur-replies "are not only fair and reasonable, but they assist the court in defining when briefed matters are finally submitted and in minimizing the battles over which side should have the last word." Humphries , 1998 WL 982903, at *1.

Here, defendants assert that "decisions on motions for remand have been issued by federal courts ... after Defendants filed their Response" and only plaintiff "had an opportunity to address" them. Doc. 41 at 2. Plaintiff "recognizes that new legal authorities were cited in his Reply." Doc. 45 at 1 (¶ 3). But he asks the court to limit the sur-reply "to responding to those new authorities." Id. Specifically, plaintiff asks the court to prohibit defendant from addressing "a ‘new opinion letter’ purportedly authored by the Office of General Counsel, Secretary of the Department of Health and Human Services on August 14, 2020[.]" Doc. 45 at 1 (¶ 4). Defendants respond that the letter is "highly relevant" because plaintiff names senior living communities in this suit and makes express allegations which squarely invoke the statute the letter interprets. Doc. 51 at 2. But defendants cite no authority holding that the decision whether to grant a motion for leave to file a sur-reply containing new authorities turns on relevance.

Nevertheless, this case presents...