Rosen v. Montefiore

582 F.Supp.3d 553

Randy ROSEN, as Administrator of the Estate of Rita Rosen (Deceased), Plaintiff,

v.MONTEFIORE, et al., Defendants.

Ruby Conner, as Administrator of the Estate of Frank S. Conner (Deceased), Plaintiff,

v.Montefiore, et al., Defendants.

CASE NO. 1:21-cv-02104, 1:21-cv-02142

CASE NO. 1:21-cv-02108

United States District Court, N.D. Ohio.

Signed January 31, 2022

David A. Kulwicki, Howard D. Mishkind, Mishkind Kulwicki Law, Cleveland, OH, for Plaintiff in 1:21-cv-02104, 1:21-cv-02142.

Michael D. Shroge, Plevin & Gallucci, Louis E. Grube, Paul W. Flowers, Law Office of Paul W. Flowers, Cleveland, OH, for Plaintiff in 1:21-cv-02108.

Aric D. Martin, Joseph F. Petros, III, Rolf Goffman Martin Lang, Pepper Pike, OH, for Defendants Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation.

Matthew D. Gurbach, Bricker & Eckler, Cleveland, OH, Sommer L. Sheely, Bricker & Eckler, Columbus, OH, for Defendant Ariel Hyman.

Richard H. Blake, McDonald Hopkins, Cleveland, OH, for Defendants Tina King, Marie Gelle.

OPINION & ORDER

JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:

With this motion, the Court must decide whether federal question or federal officer-based jurisdiction exists over Plaintiffs’ claims.

Plaintiffs bring wrongful death and survivorship claims under Ohio law against a nursing home and its employees.¹ Plaintiffs’ say that Defendants negligently, recklessly, and willfully did not protect nursing home residents against the spread of Covid-19.

Plaintiffs filed suit in the Cuyahoga County Court of Common Pleas.² Defendants removed to federal court based on federal question jurisdiction and federal officer removal.³

Plaintiffs now move to remand the cases to state court.⁴ Extensive briefing followed.⁵

For the following reasons, this Court GRANTS Plaintiffs’ motions to remand and DENIES Plaintiff Conner's request for attorney's fees and expenses.

I. Background

Plaintiff Randy Rosen ("Plaintiff Rosen") administers the Estate of Rita Rosen.⁶ Plaintiff Ruby Conner ("Plaintiff Conner") administers the Estate of Frank S. Conner.⁷ Rita Rosen and Frank S. Conner died after contracting Covid-19 at the Montefiore nursing home.

Plaintiffs Rosen and Conner sued the nursing home and associated legal entities (collectively, "the Facility Defendants"), and nursing home employees (Ariel Hyman, Tina King, and Marie Gelle) for damages in state court. With their complaints, Plaintiffs Rosen and Conner say Defendants failed to properly implement and follow critical prevention and testing protocols and that these failures led to a deadly Covid-19 outbreak at the nursing home.

Defendants removed the cases to federal court under 28 U.S.C. § 1441(a) primarily on the basis that Plaintiffs’ assert claims "arising under" and governed by federal law.⁸ In support of their removals, Defendants say the PREP Act completely preempts Plaintiffs’ claims.⁹ Defendants request this case be transferred to the District Court for the District of Columbia which has exclusive subject-matter jurisdiction over willful misconduct claims under the PREP Act.¹⁰ Defendants further argue the case is removable under the federal officer removal statute.¹¹

Plaintiffs seek to remand the cases to state court.¹² Plaintiff Conner also seeks attorney's fees and expenses under 28 U.S.C. § 1447(c).¹³

II. Discussion

A defendant may remove any civil action brought in state court "of which the district courts of the United States have original jurisdiction."¹⁴ If a federal court determines that it lacks subject matter jurisdiction, however, the court must remand the case.¹⁵ The party removing a case bears the burden of establishing federal jurisdiction.¹⁶ Because removal jurisdiction implicates federalism concerns, removal statutes are strictly construed and "all doubts should be resolved against removal."¹⁷

A. Federal Question Jurisdiction

Defendants primarily remove based on federal question jurisdiction.¹⁸ Defendants argue the PREP Act completely preempts this case and subsumes the well-pleaded-complaint rule. This Court finds that Plaintiffs’ claims do not make claims under the PREP Act. The Court, therefore, does not consider the complete preemption issue.

A district court has federal question jurisdiction when the action, "aris[es] under the Constitution, laws, or treatises of the United States."¹⁹ To determine whether a complaint asserts a federal cause of action, federal courts employ the well-pleaded complaint rule.²⁰ Under this rule, federal jurisdiction exists only when the plaintiff's properly pleaded complaint presents a federal question on its face.²¹ Defendants may not remove a case to federal court "on the basis of a federal defense ... even if the defense is anticipated in the plaintiff's complaint."²²

There are, however, exceptions to the well-pleaded complaint rule.²³ One such relevant exception is the complete preemption doctrine.²⁴ Under this doctrine, removal is proper "when the complaint, on its face, alleges only state law claims but ... those claims would also state a cause of action under a federal statute that ‘completely preempts’ an area of state law."²⁵

i. Plaintiffs’ Claims Do Not Fall Within the Scope of the PREP Act.

The PREP Act goes into effect when the Department of Health and Human Services Secretary declares a public health emergency.²⁶ The Act provides that covered persons "shall be immune from suit and liability under Federal and State law" for "all claims for loss caused by, arising out of, relating to, or resulting from" the "administration" or "use" of a "covered countermeasure."²⁷ The only exception to this immunity is claims "for death or serious physical injury proximately caused by willful misconduct."²⁸ To fall under the PREP Act, even willful misconduct claims must involve the "administration" or "use" of a "covered countermeasure."²⁹

In March 2020, the HHS Secretary declared the Covid-19 pandemic a public health emergency under the PREP Act and recommended medical countermeasures to prevent or mitigate the spread of the disease.³⁰ This public health emergency designation remains in effect.

The Secretary's declaration identifies the specific covered countermeasures that trigger the PREP Act's liability immunity for that emergency.³¹ The March 2020 declaration identified the covered countermeasures as, "any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19."³² Covered countermeasures must be "qualified pandemic or epidemic products," "security countermeasures," or drugs, biological products, or devices authorized for investigational or emergency use, as those terms are defined in the PREP Act, the Food, Drug, and Cosmetic Act, and the Public Health Service Act.³³

Plaintiffs say Defendants’ negligence, recklessness, and "willful or wanton misconduct" caused Decedents to contract Covid-19, ultimately leading to their deaths.³⁴ Specifically, Plaintiffs say Defendants’: (1) failed to adhere to infection prevention procedures such as handwashing and mask wearing; (2) failed to use a "Point of Care" testing machine; and (3) falsified Covid-19 tests.³⁵

None of Plaintiffs’ claims fall under the PREP Act because Plaintiffs’ do not assert that Decedents’ deaths were "caused by, arose out of, related to, or resulted from" the "administration" or "use" of the identified "covered countermeasures."³⁶

First, handwashing and masks are not covered countermeasures. Handwashing is not a drug, biologic, diagnostic, or device. Defendants further make no showing that masks are a device as defined by the relevant Acts.³⁷

Second, Plaintiffs’ claims are based on Defendants’ inaction and are therefore not within the scope of the PREP Act. The Secretary defined the "administration" of a covered countermeasure as the "physical provision of the countermeasures to recipients."³⁸ Plaintiffs’ claims, however, are based on Defendants’ failure to administer or use handwashing, masks, and testing devices—not Defendants’ provision of such measures—and therefore do not fall within the scope of the Act.³⁹

Finally, falsifying Covid-19 test results is not the "administration" or "use" of a covered countermeasure. Plaintiffs’ do not say that Defendants improperly administered Covid-19 tests. Instead, Plaintiffs’ claim Defendants falsified results after diagnostic tests had been administered to hide the number of nursing home residents that had tested positive for the virus. This is not conduct contemplated within the scope of the Act.

Because Plaintiffs’ claims do not fall within the scope of the PREP Act, this Court need not address whether the PREP Act is a completely preemptive statute.

B. Federal Officer Removal

In their oppositions to Plaintiffs’ motions to remand, Defendants argue these cases are also removable under the Federal Officer Removal Statute.⁴⁰

Under 28 U.S.C. § 1442(a), certain officers of the United States may remove actions to federal court.⁴¹ To do so, the officer defendant must: (1) be a person within the meaning of the statute who acted under the United States, its agencies, or its officers; (2) be sued "for or relating to" an act under color of federal office; and (3) raise a colorable federal defense to the claims.⁴² Private parties may invoke the federal officer removal statute if they can show that they satisfy these requirements.⁴³ The disputed element in this case is the first "acting under" requirement.

The phrase "acting under" in § 1442(a)(1) is broad and receives liberal construction, but it is not limitless.⁴⁴ Merely complying with federal laws and regulations does not amount to "acting under" a federal officer, even for a private party whose "activities are highly supervised and monitored" under detailed regulations.⁴⁵ To avail themselves of the removal statute, private parties must show that their actions "involve an effort to assist, or to help carry out, the duties or...