Thomas v. Watson Woods Healthcare Incorporated

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Alycia Thomas, No. CV-21-08087-PCT-SMB 10 Plaintiff, ORDER v. Watson Woods Healthcare Incorporated, et al., Defendants.

15 Pending before the Court is Defendants’ Notice of removal of this case from the Yavapai County Superior Court. (Doc. 1.) Defendants assert the “case is removable under 28 U.S.C.A. § 1441(a) on the basis of “original jurisdiction” because Plaintiffs’ Complaint asserts a claim “arising under” federal law within the meaning of § 1331. (Id. at 4.)

19 Defendants admit that Plaintiffs do not assert any federal cause of action in the complaint, but argue that removal is allowed due to their defense asserted based on the PREP Act’s immunity provisions. Defendant’s largely base this argument on an interpretation of the PREP act promulgated in a recent advisory opinion issued by the Department of Health and Human Services (“AO-21”).

24 Noting that AO-21, and thus Defendants’ jurisdictional theory has been rejected by nearly every single court that has considered the argument, this Court issued an order requiring Defendants to show cause why the case ought not be remanded. (Doc. 13.)

27 Defendants submitted additional briefing on the subject, (Doc. 14), and Plaintiff filed a response. (Doc. 17.) After having considered the additional briefing and the present body || of caselaw, the Court has determined to remand the case to the Yavapai County Superior 2|| Court. Defendant’s additional briefing essentially rises and falls based on the deference || owed by this Court to the opinions and interpretations of administrative agencies. (Doc.

4|| 14.) Defendants have not shown AO-21 is entitled to Chevron deference. United States v. || Mead Corp., 533 U.S. 218, 228 (2001); Christensen v. Harris County, 529 U.S. 576, 587 || (2000). Neither does this Court find the opinion to merit any persuasive deference, as its legal reasoning and support has been repeatedly and almost unanimously rejected by the || courts. See e.g. Winn v. Cal. Post Acute LLC, No. CV 21-02854 PA (MARx), 2021 U.S. Dist. LEXIS 67760, (C.D. Cal. Apr. 6, 2021); Estate of Judith Joy Jones v. St. Jude Operating Co., No. 3:20-cv-01088-SB, 2021 U.S. Dist. LEXIS 43876 (D. Or. Feb. 16, || 2021); Dupervil v. All. Health Operations, LLC, No. 20-CV-4042 (PKC) (PK), 2021 U.S. Dist. LEXIS 20257 (E.D.N.Y. Feb. 2, 2021).

13 Accordingly, 14 IT IS ORDERED that Defendants’ Notice of Removal, (Doc. 1), is denied.

15 IT IS FURTHER ORDERED that this case be remanded back to the Yavapai || County Superior Court.

17 Dated this 27th day of May, 2021.

19 Se . ~P 20 SO 21 Gnted States District lodge _2-