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8 United States District Court 9 Central District of California

10

11 GRISELDA NAVA, individually and as Case № 2:20-cv-07571-ODW (AFMx) successor and heir of FLORENTINA 12 LOPEZ, deceased, ORDER GRANTING PLAINTIFF’S

13 Plaintiff, MOTION TO REMAND [12]; DENYING DEFENDANTS’ EX 14 v. PARTE APPLICATIONS [26, 28];

15 PARKWEST REHABILITATION and DENYING DEFENDANTS’ CENTER LLC, a California corporation, MOTION TO COMPEL 16 et al., ARBITRATION [20] 17 Defendants. 18 19 I. INTRODUCTION 20 Plaintiff Griselda Nava’s mother died of the COVID-19 virus while a resident 21 of a nursing home owned by Defendants Parkwest Rehabilitation Center, LLC, Renew 22 Health Group, LLC, and Crystal Solorzano. Nava filed this wrongful death action in 23 the Los Angeles Superior Court, and Defendants removed it here. Nava moves to 24 remand. (Mot. to Remand (“Motion” or “Mot.”), ECF No. 12.) As discussed below, 25 the Court finds subject matter jurisdiction lacking and therefore GRANTS Nava’s 26 Motion.1 27 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the 28 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Defendants’ request for a hearing is denied. (See Opp’n 24, ECF No. 17.) 1 II. BACKGROUND 2 Defendants own or operate the Parkwest Healthcare Center nursing home where 3 Nava’s mother, Florentina Lopez, lived for seven years until her death on or about 4 May 19, 2020. (Notice of Removal (“NOR”) Ex. A (“First Am. Compl.”) ¶¶ 3–9, 5 ECF No. 3-8.) Nava alleges that despite being aware of the serious risks COVID-19 6 posed, Defendants failed to maintain sufficient staffing levels, failed to implement any 7 safety measures including COVID-19 testing, and failed to provide their employees— 8 even employees they knew to be COVID-19-positive—with any personal protective 9 equipment (“PPE”) as late as May 2020. (See id. ¶¶ 17, 30–31.) Nava alleges these 10 failings caused her mother’s death. (Id. ¶¶ 29–31, 57.) She asserts state law causes of 11 action against Defendants for elder abuse, willful misconduct, custodial negligence, 12 and wrongful death. (Id. ¶¶ 32–57.) 13 III. LEGAL STANDARD 14 Federal courts have subject matter jurisdiction only as authorized by the 15 Constitution and Congress. U.S. Const. art. III, § 2, cl. 1; see also Kokkonen v. 16 Guardian Life Ins. Co. of Am.,

(1994). There is a strong 17 presumption against removal jurisdiction, and the removing party has the burden of 18 establishing the propriety of removal. Hunter v. Philip Morris USA,

, 19 1042 (9th Cir. 2009). The removal statute is strictly construed, and any doubt about 20 the right of removal is resolved in favor of remand. See Gaus v. Miles, Inc.,

(9th Cir. 1992); see also Duncan v. Stuetzle,

(9th Cir. 22 1996) (“Because of the Congressional purpose to restrict the jurisdiction of the federal 23 courts on removal, the statute is strictly construed, and federal jurisdiction must be 24 rejected if there is any doubt as to the right of removal in the first instance.” (citations 25 and internal quotation marks omitted)). 26 IV. DISCUSSION 27 Defendants removed the case to this Court pursuant to the federal officer 28 removal statute,

, and federal question jurisdiction,

. 1 (NOR ¶ 6; Opp’n 1–2.) Nava challenges both jurisdictional theories in moving for 2 remand. (See Mot.) 3 A. Federal Officer Jurisdiction 4 Federal officer removal is available to a defendant under

(a) if 5 “(a) [the removing party] is a person within the meaning of the statute; (b) there is a 6 causal nexus between its actions, taken pursuant to a federal officer’s directions, and 7 plaintiff’s claims; and (c) it can assert a colorable federal defense.” Stirling v. 8 Minasian,

(9th Cir. 2020) (emphasis added). Unlike the federal 9 question removal statute, § 1442(a)(1) is “liberally construed,” although “not 10 limitless.” Fidelitad, Inc. v. Insitu, Inc.,

(9th Cir. 2018). 11 Relevantly, “[a] private firm’s compliance (or noncompliance) with federal laws, 12 rules, and regulations does not by itself fall within the scope of the statutory phrase 13 ‘acting under’ a federal ‘official.’ And that is so even if the regulation is highly 14 detailed and even if the private firm’s activities are highly supervised and monitored.” 15 Watson v. Philip Morris Cos.,

(2007). 16 Here, Defendants fail to establish that their alleged conduct was “pursuant to a 17 federal officer’s directions.” See Stirling,

. Defendants point to only 18 general regulations and directives regarding the provision of medical services, and 19 argue that, as a skilled nursing facility, they are subject to a high degree of federal 20 regulation. (Opp’n 18–20 (describing directives and guidance issued by the Centers 21 for Disease Control, the Centers for Medicare and Medicaid Services, and HHS); 22 NOR ¶¶ 27–39 (same).) This is not enough to invoke federal officer removal. See 23 Watson,

. As this finding precludes federal officer jurisdiction, the 24 Court need not reach the other elements of the statute to conclude that removal is not 25 justified on this basis. Ebony Stone v. Long Beach Healthcare Ctr., LLC, No. CV 26 21-326-JFW (PVCx),

, at *8 n.6 (C.D. Cal. Mar. 26, 2021). 27 28 1 B. Federal Question Jurisdiction 2 Next, although Nava’s claims all arise under state law, Defendants nevertheless 3 contend removal is proper under federal question jurisdiction. (See Opp’n 4.) To 4 reach this conclusion, Defendants assert that (1) the Public Readiness and Emergency 5 Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e, completely 6 preempts Nava’s state law claims and (2) Nava’s allegations present a substantial 7 federal question under the Grable doctrine. (Id. at 4–17.) Neither theory supports 8 jurisdiction. 9 1. Complete Preemption 10 Complete preemption is an exception to the well-pleaded complaint rule; that 11 rule provides a civil action “arises under” federal law for purposes of § 1331 only 12 “when a federal question appears on the face of the complaint.” City of Oakland v. 13 BP PLC,

(9th Cir. 2020) (quoting Caterpillar Inc. v. Williams, 14

(1987)). Where no federal question appears on the face of a 15 complaint, a defendant may still remove when “federal law completely preempts a 16 plaintiff’s state law claim, meaning that the pre-emptive force of the statute is so 17 ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one 18 stating a federal claim.’” Id. at 905 (citations omitted). Complete preemption is very 19 rare. Id. at 905–06 (“The Supreme Court has identified only three statutes that meet 20 [its] criteria.”). 21 Defendants contend the Court has federal question jurisdiction because the 22 PREP Act completely preempts Nava’s state law claims. However, the Court need not 23 determine whether the PREP Act provides complete preemption because, “[e]ven if [it 24 does], Defendant[s] would have to show that it applies to the . . . claims asserted in 25 this case.” In re McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB (PVCx), 26

, at *5 (C.D. Cal. Mar. 1, 2021). This they cannot do. 27 The PREP Act provides liability immunity “with respect to all claims for loss 28 caused by, arising out of, relating to, or resulting from the administration to or the use 1 by an individual of a covered countermeasure. 42 U.S.C. § 247d-6d(a)(1).2 The HHS 2 Secretary recently issued an amendment clarifying that “administration to” an 3 individual can include “[p]rioritization or purposeful allocation” of a covered 4 countermeasure, such as when supplies are limited. See Fourth Am. Decl.,

Reg. at 79197. Here, however, Nava does not allege that Defendants are liable for 6 administering or using a covered countermeasure, even as a “purposeful allocation”; 7 rather, Nava alleges her mother’s death was the result of Defendants’ inaction or 8 failure to implement any countermeasures. (See First Am. Compl. ¶ 17; Mot. 19; 9 Reply 6–8, ECF No. 21.) 10 Courts in this District and beyond to have considered this precise question have 11 concluded overwhelmingly that the PREP Act does not apply to claims based on a 12 defendant’s plain inaction or failure to protect. See, e.g., Stone,

, 13 at *4 (collecting cases and concluding that such “inaction claims” do not fall within 14 the scope of the PREP Act); Evon Smith v. Colonial Care Ctr., Inc., No. 2:21-cv- 15 00494-RGK (PDx),

, at *4 (C.D. Cal. Mar. 19, 2021) (finding 16 allegations of failure to implement effective protective policies did not fall within the 17 PREP Act); Lyons v. Cucumber Holdings, LLC, No. CV 20-10571-JFW (JPRx), 18

, at *5 (C.D. Cal. Feb. 3, 2021) (finding PREP Act inapplicable 19 where alleged harm was not causally connected to the administration or use of any 20 covered countermeasure), appeal filed, No. 21-55185 (9th Cir. Mar. 3, 2021). Indeed, 21 “there is a growing consensus among courts across the country that state-law claims of 22 negligence and wrongful death brought against a nursing home for failure to protect 23 against the spread of COVID-19 . . . are not properly characterized as federal-law 24 2 On March 10, 2020, the Secretary of the Department of Health and Human Services (“HHS”) 25 issued an authorizing declaration identifying the COVID-19 pandemic as a public health emergency under the PREP Act (“March 10, 2020 Declaration”).

-01. Subsequent 26 amendments have clarified or modified the March 10, 2020 Declaration. See First Am. Decl.,

-02 (Apr. 15, 2020); Second Am. Decl.,

-01 (June 8, 2020); 27 Third Am. Decl.,

-01 (Aug. 24, 2020); Fourth Am. Decl.,

-01 28 (Dec. 9, 2020); Fifth Am. Decl.,

-02 (Feb. 2, 2021); Sixth Am. Decl.,

-01 (Feb. 16, 2021); Seventh Am. Decl.,

(Mar. 11, 2021). 1 claims under the PREP Act.” Dupervil v. All. Health Operations, LCC, No. 20-CV- 2 4042-PKC (PKx),

, at *12 (E.D.N.Y. Feb. 2, 2021) (collecting 3 cases), appeal filed, No. 21-505 (2d Cir. Mar. 3, 2021). 4 The Court agrees with this growing consensus and concludes that, as the 5 gravamen of Nava’s Complaint is that Defendants’ failure to act caused the harms 6 alleged, even if the PREP Act could confer federal jurisdiction via complete 7 preemption, it would not do so here. Therefore, removal is not justified based on 8 Defendants’ theory of complete preemption. 9 2. Substantial Federal Question 10 Nor is removal justified based on a “substantial, embedded question of federal 11 law.” (Opp’n 4.) For a state law claim to provide federal jurisdiction under this 12 theory, it must “necessarily raise a stated federal issue, actually disputed and 13 substantial, which a federal forum may entertain without disturbing any 14 congressionally approved balance of federal and state judicial responsibilities.” 15 Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.,

(2005). 16 “That is, federal jurisdiction over a state law claim will lie if a federal issue is: 17 (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of 18 resolution in federal court without disrupting the federal-state balance approved by 19 Congress.” Gunn v. Minton,

(2013). 20 This argument fails for the same reasons as above. Nava’s claims are not 21 premised on the PREP Act, nor do her allegations fall within its scope. Adjudicating 22 her state law claims does not require an interpretation, or challenge the constitutional 23 validity, of any federal statute. See City of Oakland, 969 F.3d at 906–07 (finding no 24 federal jurisdiction under the “slim category” articulated in Grable where the claim 25 “neither require[d] an interpretation of a federal statute nor challenge[d] a federal 26 statute’s constitutionality” (citation omitted)). Defendants’ reliance on federal law as 27 a shield to liability does not “necessarily raise” a federal issue. See Stone,

1163572, at *7 (finding PREP Act immunity was related to defendant’s defense and 1 “not necessarily raised”). Thus, Defendants have not demonstrated that federal 2 jurisdiction lies under Grable, and removal is not justified on this basis either. 3 C. Remaining Matters 4 Finally, the Court must resolve several housekeeping matters. First, the Court 5 denies Nava’s request for $10,000 in attorneys’ fees pursuant to

(c), 6 as the Court finds Defendants did not lack an “objectively reasonable basis for seeking 7 removal.” Martin v. Franklin Cap. Corp.,

(2005). Even Nava’s 8 counsel recognizes that the issues presented here are “novel,” and the law is still 9 developing. (See Decl. of Scott C. Glovsky ISO Mot. ¶ 11, ECF No. 12-1 (noting ten 10 hours spent researching “this novel issue”).) In light of the Court’s denial, 11 Defendants’ objections to the Glovsky Declaration are moot. (See Defs.’ Objs., ECF 12 No. 17-1.) 13 Next, the Court denies Defendants’ ex parte applications to submit 14 supplemental briefing regarding two HHS advisory opinions issued after motion 15 briefing was complete. (See Defs.’ Ex Parte Appl., ECF No. 26; Defs.’ Second Ex 16 Parte Appl., ECF No. 28.) Whether to permit or deny supplemental briefing is within 17 the Court’s discretion. See Fusion IV Pharms., Inc. v. California, No. CV 18-2561-PA 18 (FFMx),

, at *3 (C.D. Cal. Aug. 22, 2018). The Court is capable of 19 considering the relevant advisory opinions without additional briefing from the 20 parties, and Defendants’ assertions of prejudice absent further briefing on these issues 21 are conclusory and unsupported. 22 Finally, the Court denies Defendants’ request for jurisdictional discovery, as it 23 finds Nava’s allegations sufficient to determine that federal jurisdiction does not lie in 24 this Court. (Opp’n 24–25 (requesting a jurisdictional hearing “if the Court determines 25 there is insufficient clarity of facts” to determine the question of federal jurisdiction)); 26 see Boschetto v. Hansing,

(9th Cir. 2008) (discussing that a court 27 has discretion to permit or deny jurisdictional discovery). A “more satisfactory 28 showing of the facts” is not necessary. Boschetto,

. 1 Vv. CONCLUSION 2 Defendants have failed to carry their burden to show removal was proper. The 3 | Court therefore GRANTS Nava’s Motion to Remand and DENIES her request for 4|| fees and costs. (ECF No. 12.) The Court DENIES Defendants’ Ex Parte 5|| Applications. (ECF Nos. 26, 28.) In light of the Court’s conclusion that it lacks 6 || subject matter jurisdiction, Defendants’ pending motion to compel arbitration is not 7 || for this Court to decide, and is therefore DENIED without prejudice. (ECF No. 20.) 8 The Court REMANDS this action to the Superior Court of California, County of Los Angeles, 111 North Hill Street, Los Angeles California, 90012, Case 10 || No. 20STCV20624. All dates and deadlines are VACATED. The Clerk of the Court 11 || shall close this case. 12 13 IT IS SO ORDERED. 14 15 April 5, 2021 16 ‘Se? ee A

18 OTIS DSWRIGHT, I 9 UNITED STATES DISTRICT JUDGE

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