Khalek v. S. Denver Rehab., LLC

543 F.Supp.3d 1019

Bushra Abdul KHALEK, individually and as power of attorney for Mohammed Abdul Khalek, Plaintiff,

v.SOUTH DENVER REHABILITATION, LLC d/b/a Orchard Park Health Care Center, and Thomas Sylvain, Defendants.

Civil Action No. 1:20-cv-02240-RBJ

United States District Court, D. Colorado.

Signed June 11, 2021

Jordana Griff Gingrass, J. M. Reinan, P.C., Denver, CO, for Plaintiff.

Lori Diane Proctor, Wilson Elser Moskowitz Edelman & Dicker LLP, Houston, TX, for Defendants.

ORDER ON MOTION TO REMAND AND MOTION TO DISMISS

R. Brooke Jackson, United States District Judge

This case involves claims for negligence and breach of fiduciary duty based on alleged misconduct by defendants that resulted in Mohammed Abdul Khalek's dying from COVID-19. Before the Court are plaintiff's motion to remand to state court, ECF No. 29, and defendants’ motion to dismiss, ECF No. 27. For the reasons discussed below, plaintiff's motion to remand to state court is GRANTED, and defendants’ motion to dismiss is MOOT.

I. FACTUAL BACKGROUND

The following facts are alleged in plaintiff's amended complaint,¹ and the Court assumes them to be true for the purpose of the pending motions. Plaintiff Bushra Abdul Khalek is the surviving spouse and heir at law of Mohammed Abdul Khalek ("Mr. Khalek"). ECF No. 41-1 at ¶¶1–2. Defendant South Denver Rehabilitation LLC, which does business under the name Orchard Park Health Care Center ("Orchard Park"), is a licensed nursing home and rehabilitation center in Littleton, Colorado. Defendant Thomas Sylvain was the Executive Director and/or Administrator for Orchard Park at all relevant times. Id. at ¶¶3–4.

Mr. Khalek was a resident at Orchard Park due to a Parkinson's diagnosis. Plaintiff alleges that Orchard Park did not provide adequate rehabilitation services there, and as a result his stay at Orchard Park was significantly longer than he or his family had planned. Id. at ¶¶6–8. The COVID-19 pandemic hit while Mr. Khalek was at Orchard Park. The facility went into lockdown in mid-March 2020, and plaintiff and Mr. Khalek's family were unable to visit him or to check on his care. They requested that he be discharged, but defendants told them he would not be discharged until April 20, 2020. In late March 2020 Mr. Khalek was moved from his private room to a different nursing unit without the family's consent. Id. at ¶¶10–14.

Plaintiff and the family frequently called defendants to ask about the number of COVID-19 cases and to determine if they needed to bring Mr. Khalek home for his safety. Defendants repeatedly told plaintiff that there were no COVID-19 cases, and that the family need not worry. Then, on April 11, 2020 a social worker at Orchard Park told plaintiff that there was one confirmed case of COVID-19 in the facility. Plaintiff and her family decided to remove Mr. Khalek from Orchard Park that day, despite defendants’ saying the discharge would be against medical advice and would result in penalties, and despite Orchard Park's not having prepared for his discharge in any way. Id. at ¶¶16–22.

Shortly after returning home, Mr. Khalek showed signs of COVID-19 and tested positive. Plaintiff transferred him to a hospital where he underwent treatment for the disease, including a prolonged stay in the ICU on a ventilator. He ultimately died of COVID-19 on August 9, 2020. Id. at ¶¶23–28; ECF No. 36-1. Plaintiff subsequently learned that Orchard Park had between thirty and forty confirmed COVID-19 cases involving residents, twenty cases involving staff, and two deaths from COVID-19 while Mr. Khalek was at Orchard Park. ECF No. 41-1 at ¶30.

Plaintiff alleges that defendants repeatedly and intentionally lied to plaintiff and the family about the COVID-19 outbreak in order to avoid liability and to retain Mr. Khalek as a paying client. Further, Mr. Khalek's chart lacks any nursing assessment notes from March 10 through April 11, suggesting that he received inadequate or no assessments or care during that period. Id. at ¶¶32–35. Plaintiff alleges that as a result of defendants’ conduct, Mr. Khalek was infected with and died from COVID. Id. at ¶36.

Plaintiff brings two claims for relief: (1) negligence resulting in wrongful death, and (2) breach of fiduciary duty. Among the allegations supporting these claims are defendants’ failing to monitor Mr. Khalek; failing to plan his care or coordinate his discharge; failing to provide adequate and trained staff; failing to document his care; providing inaccurate information regarding Mr. Khalek's status and care; and intentionally deceiving plaintiff regarding the COVID-19 outbreak, Mr. Khalek's medical status and infection status, and defendants’ ability to keep him safe during the outbreak. Id. at ¶¶41, 47.

II. PROCEDURAL BACKGROUND

Plaintiff filed suit in state district court in Arapahoe County on June 30, 2020. ECF No. 1-2 at 1. Defendants removed the action to federal court on July 29, 2020. ECF No. 1. They then filed a motion to dismiss on September 1, 2020. ECF No. 27. Both the removal and the motion to dismiss were based on applicability of the Public Readiness and Emergency Preparedness ("PREP") Act. On September 22, 2020 plaintiff moved to remand the case to state court, arguing that removal was improper. ECF No. 29. Both motions are fully briefed and ripe for the Court's review. ECF Nos. 28, 30, and 33. The parties have also filed various supplemental authorities for the Court's consideration. ECF Nos. 34, 35, 38, 39, and 40.

III. STANDARD OF REVIEW

The primary question before the Court is whether defendants’ removal of this case to federal court was proper. A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A party's right to remove a civil action is "determined according to the plaintiff's pleading at the time of the petition for the removal." Pullman Co. v. Jenkins , 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). Under the "well-pleaded complaint" rule, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Thus, a plaintiff, as the "master of the claim," can avoid federal jurisdiction by relying solely on state law. Id. at 392, 107 S.Ct. 2425.

A removed action must be remanded "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447(c). "[S]tatutes conferring jurisdiction upon the federal courts, and particularly removal statutes, are to be narrowly construed in light of our constitutional role as limited tribunals." Pritchett v. Office Depot, Inc. , 420 F.3d 1090, 1094–95 (10th Cir. 2005) (citations omitted). The removing party bears the burden of establishing federal jurisdiction. Martin v. Franklin Cap. Corp. , 251 F.3d 1284, 1290 (10th Cir. 2001), abrogated on other grounds by Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014).

IV. ANALYSIS

Defendants advance the same three arguments for federal jurisdiction pursuant to the PREP Act that have been made by dozens of other defendants during the COVID-19 pandemic: (1) that the PREP Act completely preempts all state law claims; (2) that the PREP Act creates a substantial federal question embedded in plaintiff's claims; and (3) that jurisdiction is conferred by the federal officer removal statute. See ECF No. 33. I reject these arguments for the same reasons that nearly all other courts across the country have rejected them. I thus find that this Court lacks jurisdiction to hear plaintiff's claims, and I remand this case to state court.

A. The PREP Act

Congress passed the PREP Act in 2005. This statute authorizes the federal Secretary of Health and Human Services ("HHS") to issue a declaration that "a disease or other health condition or other threat to health constitutes a public health emergency." 42 U.S.C. § 247d-6d(b). If applicable, the PREP Act provides immunity to "covered persons" from liability under federal and state law for "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 under subsection (b) has been issued with respect to such countermeasure." Id. § 247d-6d(a)(1). The PREP ACT requires a causal relationship between the injury or loss and the countermeasure. Id. § 247d-6d(a)(2)(B). If immunity applies, the injured person may seek compensation from the Countermeasures Injury Compensation Program ("CICP"), a federal regulatory program that covers some losses associated with the use of covered countermeasures. Id. § 247d-6e.

The PREP Act provides one exception to immunity—when serious injury or death occurs through willful misconduct. In that situation the injured person or their survivors must file suit in the U.S. District Court for the District of Columbia and prove their injury by clear and convincing evidence. Id. § 247d-6d(c)(3), (e)(1). Furthermore, the PREP Act includes an express preemption clause that reads, "no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that ... is different from, or is in conflict with, any requirement applicable under this section." Id. § 247d-6d(b)(8).

In March 2020 the Secretary of HHS declared that COVID-19 was a public health emergency. Additionally, the Secretary declared that the PREP Act's protections would apply to covered persons using or administering covered countermeasures to combat the pandemic. 85 Fed. Reg. 15198. The Secretary has since amended the...