Mackey v. Tower Hill Rehab.

HOWARD MACKEY, an independent executor of the estate of REGINA POMIAN, deceased, Plaintiff, v. TOWER HILL REHABILITATION, LLC, an Illinois limited liability company d/b/a TOWER HILL HEALTHCARE CENTER, Defendant.

No. 21 C 2608

United States District Court, N.D. Illinois, Eastern Division

November 1, 2021

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United States District Judge.

Regina Pomian, a 95-year-old resident of a nursing home, died of COVID-19 on May 4, 2020. In a lawsuit filed in state court Howard Mackey (“Plaintiff”), as executor of her estate, alleges that Pomian's death was a result of the nursing home's gross negligence. The nursing home operator, Tower Hill Rehabilitation, LLC, an Illinois limited liability company doing business as Tower Hill Healthcare Center (“Defendant” or “Tower Hill”) removed the case to federal court. See 28 U.S.C §§ 1441(a), 1446(a). As its basis for removal, Tower Hill invoked the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e (the “PREP Act”), which Defendant argues completely preempts Plaintiff's state-law claims and provides federal question jurisdiction. See 28 U.S.C. § 1331. Alternatively, Defendant invokes the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). Plaintiff now moves to remand [13] for lack of subject-matter jurisdiction. See 28 U.S.C. § 1447(c). As explained here, the motion is granted.

BACKGROUND

At this stage of the proceedings, the court accepts the allegations in Plaintiff's Complaint as true. Regina Pomian resided in a long-term care facility known as Tower Hill Healthcare Center, located in South Elgin, Illinois, from approximately May 2016 through May 2020. (Compl., Ex. A to Notice of Removal [1-1] ¶ 6.) According to Mackey, Tower Hill failed to respond adequately to the COVID-19 pandemic, resulting in Pomian's untimely death on May 4, 2020. (Id. ¶ 102.) Among other things, Tower Hill allegedly failed to follow guidance from the Centers for Medicare and Medicaid Services (“CMS”) and the Centers for Disease Control (“CDC”) to mitigate the spread of COVID-19, failed to provide its staff with essential personal protective equipment (“PPE”), failed to test Pomian for COVID-19 despite knowing that she was ill, and failed to isolate her or provide her with PPE. (See id. ¶¶ 94-107.) Mackey alleges that Defendant consciously disregarded the health and safety of its residents in violation of the Illinois Nursing Home Care Act (“INHCA”), 210 ILCS 45/1-101 et seq. (Id. at 1-2.)

Plaintiff filed a complaint in state court on April 5, 2021, bringing various state-law claims against Tower Hill. See Mackey v. Tower Hill Rehab., LLC, No. 21 L 169. Count I alleges negligence under the INHCA; Count II alleges a willful and wanton violation of the INHCA; Count III alleges common law negligence; Count IV alleges negligence under the Illinois Wrongful Death Act (“IWDA”), 740 ILCS 180/1 et seq.; Count V alleges willful and wanton common law negligence; and Count VI alleges willful and wanton violation of the IWDA. (Compl. at 17-74.) Defendant timely removed the case on May 14, 2021, which was within thirty days of being served on or about April 15, 2021. (Notice of Removal [1] ¶ 2 (citing 28 U.S.C. § 1446(b).) Plaintiff subsequently filed a motion to remand the case to the Sixteenth Judicial Circuit in Kane County, Illinois for lack of subject-matter jurisdiction. (Mot. to Remand [13] ¶ 1.)

LEGAL STANDARD

A defendant may remove any civil action filed in state court that could have been properly brought in federal court under federal question jurisdiction, see 28 U.S.C. § 1441(a), diversity jurisdiction (subject to certain limitations), see id. § 1441(b), or another statutory grant of jurisdiction, see, e.g., id. § 1442(a)(1). “The party seeking removal has the burden of establishing federal jurisdiction[.]” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). The Seventh Circuit has cautioned that “federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court.” Id. A plaintiff opposing removal may move to remand the case to state court. See 28 U.S.C. § 1447(c). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id. (emphasis added); see GE Betz, Inc. v. Zee Co., 718 F.3d 615, 625-26 (7th Cir. 2013).

DISCUSSION

Defendant makes two arguments in support of removal. First, Defendant seeks removal under § 1441(a), contending that the PREP Act supplies federal question jurisdiction, either through the complete preemption doctrine or because Plaintiff's state-law claims necessarily raise a substantial federal issue. See 28 U.S.C. § 1331; Grable &amp Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). Second, Defendant argues that it qualifies for removal under the federal officer removal statute. See 28 U.S.C. § 1442(a)(1). The court rejects both arguments.

I. Removal Based on Federal Question Jurisdiction

A. Complete Preemption Under the PREP Act

Under the well-pleaded complaint rule, federal question “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 (1987). Plaintiffs “may avoid federal jurisdiction by exclusive reliance on state law.” Id. It is well settled that “a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption.” Id. at 393. Thus, when a federal statute supersedes state law, ordinary preemption operates as an affirmative defense- not as an independent basis for federal jurisdiction. See, e.g., Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n, 707 F.3d 883, 890 (7th Cir. 2013), as amended (Apr. 29, 2013); see also Dolin v. GlaxoSmithKline LLC, 901 F.3d 803, 811 (7th Cir. 2018) (explaining the difference between express preemption, implied preemption, and conflict preemption).

The complete-preemption doctrine, however, provides a “narrow exception” to the well-pleaded complaint rule. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 5 (2003). “When [a] federal statute completely pre-empts [a] state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Id. at 8. Federal law completely preempts state law claims only where there is “congressional intent . . . not just to provide a federal defense to a state created cause of action but to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transforming the state cause of action into a federal cause of action.” Rogers v. Tyson Foods, Inc., 308 F.3d 785, 788 (7th Cir. 2002) (citation omitted). In other words, “complete preemption can only exist where, inter alia, the federal statute provides a private right of action.” Id. at 790. To date, the Supreme Court has recognized only three federal statutes as completely preemptive: § 301 of the Labor Management Relations Act, § 502(a) of the Employee Retirement Income Security Act (“ERISA”), and §§ 85 and 86 of the National Bank Act. In re Repository Techs., Inc., 601 F.3d 710, 723 (7th Cir. 2010) (citing Beneficial Nat' Bank, 539 U.S. at 7-11).^[1]“[A]ny further expansion of the doctrine . . . requires a clear showing of Congressional intent to eliminate state law entirely.” Ne. Rural Elec. Membership Corp., 707 F.3d at 894.

The PREP Act, enacted in 2005, immunizes providers of “covered countermeasures” from liability during a public health emergency. Examples of a “covered countermeasure” include a drug, biological product, “respiratory protective device, ” “qualified pandemic or epidemic product, ” or “security countermeasure.” 42 U.S.C. § 247d-6d(i)(1). The Act states that “a covered person shall be immune from suit and liability under Federal and State law with respect to 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 [by the Secretary of the Department of Health and Human Services (“HHS”)] has been issued with respect to such countermeasure.” 42 U.S.C. § 247d-6d(a)(1) (emphasis added).

On its face, the Act seems to be relevant here. There appears to be no dispute that PPE constitutes a “covered countermeasure” under the PREP Act. Nor does Plaintiff dispute Defendant's contention that it is a “covered person, ” defined for purposes of the PREP Act as “a person or entity that is (i) a manufacturer of such countermeasure; (ii) a distributor of such countermeasure; (iii) a program planner of such countermeasure; (iv) a qualified person who prescribed, administered, or dispensed such countermeasure; or (v) an official, agent, or employee of a person or entity described in clause (i), (ii), (iii), or (iv).” 42 U.S.C. § 247d-6d(i)(2)(B). And the Secretary of HHS issued the required declaration on March 10, 2020 in response to the COVID-19 pandemic.^[2]

PREP Act immunity “applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” Id. § 247d-6d(a)(2)(B) (emphasis added). The Act provides an exception to immunity when a plaintiff alleges that death or serious physical injury was proximately caused by “willful misconduct” on the part of a covered person. Id. § 247d-6d(d)(1); see also § 247d-6d(c) (defining willful misconduct). The U.S. District Court for the District of Columbia has exclusive federal jurisdiction of these willful misconduct suits, and plaintiff must exhaust...