Anson v. HCP Prairie Vill. KS Opco LLC

• Decision Date: 29 January 2021
• Docket Number: Case No. 20-2346-DDC-JPO
• Citation: 523 F.Supp.3d 1288
• Court: U.S. District Court — District of Kansas
• Parties: Roberta ANSON, individually and as Special Administrator of the Estate of Barbara Bell, Plaintiff, v. HCP PRAIRIE VILLAGE KS OPCO LLC, et al., Defendants.

523 F.Supp.3d 1288

Roberta ANSON, individually and as Special Administrator of the Estate of Barbara Bell, Plaintiff,

v.HCP PRAIRIE VILLAGE KS OPCO LLC, et al., Defendants.

Case No. 20-2346-DDC-JPO

United States District Court, D. Kansas.

Signed January 29, 2021

Rachel D. Stahle, Dollar Burns Becker & Hershewe, LC, Kansas City, MO, for Plaintiff.

Barbara K. Christopher, Matthew Klose, Richard M. Acosta, Robert J. Givens, Horn, Aylward & Bandy, LLC, Kansas City, MO, Charlie C.H. Lee, Pro Hac Vice, Kristen A. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Harold Eric Hilton, Pro Hac Vice, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, Jeanne Sourgens, Joseph Hollander & Craft LLC, Lawrence, KS, Anne M. Kindling, Joseph, Hollander & Craft, LLC, Topeka, KS, for Defendants HCP Prairie Village KS OPCO LLC, Sunrise Senior Living Management, Inc., Lisa Barnes, Healthpeak Properties, Inc., HCP S-H OPCO TRS, LLC, HCP Senior Housing Properties LLC, HCP MA 4 Kansas City, KS, LLC.

Barbara K. Christopher, Horn, Aylward & Bandy, LLC, Kansas City, MO, Charlie C.H. Lee, Pro Hac Vice, Kristen A. Bennett, Pro Hac Vice, Matthew Cameron Long, Pro Hac Vice, Moore & Lee, LLP, McLean, VA, Harold Eric Hilton, Pro Hac Vice, John E. Hall, Jr., Pro Hac Vice, Laura Hall Cartner, Pro Hac Vice, Hall Booth Smith, PC, Atlanta, GA, Jeanne Sourgens, Joseph Hollander & Craft LLC, Lawrence, KS, Anne M. Kindling, Joseph, Hollander & Craft, LLC, Topeka, KS, for Defendant Brighton Gardens of Prairie Village.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

This matter is before the court on plaintiff's Motion to Remand to State Court (Doc. 31). Plaintiff argues that her Kansas state law claims belong in state court. Defendants argue that a federal law—the Public Readiness and Emergency Preparedness Act (PREP Act)—completely preempts plaintiff's claims, thus providing this court with subject matter jurisdiction over them.

While plaintiff's remand motion was pending, several federal district courts, including our own, ruled on similar jurisdictional issues. The court ultimately finds those cases persuasive and concludes that the Secretary of Health and Human Services's December 3, 2020 Amendment to the Declaration reinforces the holdings in those cases. For reasons explained below, the court remands the matter for lack of subject matter jurisdiction.

I. Background

Barbara Bell lived in the northeast Kansas community of Prairie Village. Doc. 1-1 at 3 (Pet. ¶ 1). In 2018, she began residing at an assisted living facility called Brighton Gardens of Prairie Village. Id. at 3, 8 (Pet. ¶¶ 1, 23). Ms. Bell lived there for the purpose of receiving protective care and oversight and all other necessary care for her existence because she could not care for herself. Id. at 8 (Pet ¶ 23). In April 2020, Brighton Gardens confirmed its first positive cases of COVID-19 at its facility. Id. at 8–9 (Pet. ¶ 28). By April 24, 2020, 13 residents and seven staff members had tested positive for the virus. Id. at 9 (Pet. ¶ 29). On May 1, 2020, Ms. Bell received a positive COVID-19 diagnosis. Id. (Pet. ¶ 35). On May 20, 2020, she died from the virus. Id. (Pet. ¶ 37).

On June 8, 2020, the surviving adult daughter of Barbara Bell—Roberta Anson—filed a lawsuit in Johnson County, Kansas court bringing state law claims against defendants. Doc. 1-1 at 1–4 (Pet.). Plaintiff has sued defendants for (1) wrongful death, (2) lost chance of survival, and (3) negligence. Id. at 8–14 (Pet.). She avers, among other things, that:

• "Defendants negligently failed to follow proper infection control protocols and prevent an outbreak of COVID-19." Id. at 9 (Pet. ¶ 38).

• "Defendants failed to ensure its workers were not working with symptoms consistent with COVID-19." Id. at 10 (Pet. ¶ 39).

• "Defendants failed to train, instruct, and/or monitor staff use of proper personal protective equipment to prevent spread of COVID-19." Id. (Pet. ¶ 40).

• "Defendants failed to effectively separate those with symptoms of COVID-19 from the remaining population of the facility." Id. (Pet. ¶ 41).

• "Defendants failed to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19." Id. (Pet. ¶ 42).

• "Defendants otherwise failed to sufficiently control or manage the presence of COVID-19 in the facility." Id. (Pet. ¶ 43).

• "Defendants failed to timely implement a plan of improvement to address the COVID-19 outbreak at the facility." Id. (Pet. ¶ 44).

She also alleges that defendants were negligent in:

• "[F]ailing to follow proper guidelines in place for the prevention of COVID-19 outbreaks in long term care facilities[.]" Id. (Pet. ¶ 46(a)).

• "[F]ailing to ensure its staff was not allowed to work at Brighton Gardens when they exhibited signs and symptoms consisted with COVID-19[.]" Id. at 10–11 (Pet. ¶ 46(b)).

• "[F]ailing to be transparent with Barbara Bell's family about the COVID-19 situation at the facility so they could remove her from the facility before she became infected[.]" Id. at 11 (Pet. ¶ 46(c)).

• "[F]ailing to instruct, train, and/or monitor staff regarding the appropriate use of personal protective equipment and infection control protocols[.]" Id. (Pet. ¶ 46(d)).

• "[F]ailing to properly respond to the presence of COVID-19 in the defendant facility to prevent spread[.]" Id. (Pet. ¶ 46(e)).

• "[F]ailing to timely request additional staff, resources, and other assistance from the public health entities available to respond to COVID-19[.]" Id. (Pet. ¶ 46(f)).

• "[F]ailing to separate residents with signs and symptoms of COVID-19 from the remaining resident population[.]" Id. (Pet. ¶ 46(g)).

• "[F]ailing to prevent staff members from coming into contact with both COVID-19 positive and negative residents such that staff members spread the virus from person to person[.]" Id. (Pet. ¶ 46(h)).

• "[F]ailing to adhere to social distancing guidelines put in place in March 2020 to keep its residents safe from being exposed to COVID-19[.]" Id. (Pet. ¶ 46(i)).

• "[F]ailing to timely, consistently, and properly assess, re-assess and document Barbara Bell's physical condition[.]" Id. (Pet. ¶ 46(j)).

• "[F]ailing to properly supervise and train Defendants' agents and/or servants who were responsible for the care, treatment, and oversight of Barbara Bell[.]" Id. (Pet. ¶ 46(k)).

• "[F]ailing to carry out and follow standing orders, instructions, and protocol regarding the prevention of COVID-19[.]" Id. at 11–12 (Pet. ¶ 46(l)).

• "[F]ailing to provide adequate training to staff regarding prevention of COVID-19[.]" Id. at 12 (Pet. ¶ 46(m)).

• "[F]ailing to implement appropriate interventions and thereby allowing Barbara Bell to be exposed to COVID-19 in the defendant facility[.]" Id. (Pet. ¶ 46(n)).

• "[F]ailing to document changes in Barbara Bell's condition[.]" Id. (Pet. ¶ 46(o)).

• "[F]ailing to adequately assess Barbara Bell's risk for falling[.]" Id. (Pet. ¶ 46(p)).

• "[F]ailing to implement effective interventions to keep Barbara Bell from falling[.]" Id. (Pet. ¶ 46(q)).

• "[F]ailing to adequately, accurately and timely monitor Barbara Bell's changes in condition[.]" Id. (Pet. ¶ 46(r)).

• "[F]ailing to timely respond to Barbara Bell's change in condition[.]" Id. (Pet. ¶ 46(s)).

• "[F]ailing to timely advise Barbara Bell's family and doctor of her change in condition[.]" Id. (Pet. ¶ 46(t)).

• "[F]ailing to use that degree of care, skill, and diligence used by assisted living facilities in the same or similar communities and circumstances[.]" Id. (Pet. ¶ 46(u)).

The court next explains how this state law action made its way to federal court, and then determines whether it properly may remain here.

II. Procedural History

On July 10, 2020, defendants filed a Notice of Removal (Doc. 1). Defendants then filed a Motion to Dismiss (Doc. 15). Plaintiff volleyed back with a Motion to Remand (Doc. 31) and a Memorandum in Support of that motion (Doc. 32). Defendants filed a Response (Doc. 41) and later supplemented it (Doc. 55). The Response requests a hearing.¹ Doc. 41 at 29–30. Plaintiff filed a Reply (Doc. 46).

Defendants also bring a Counterclaim against plaintiff (Doc. 40) seeking a declaratory judgment. Plaintiff filed a Motion to Dismiss the Counterclaim (Doc. 43). Defendants filed a Reply (Doc. 54). Both parties submitted filings that identify and discuss supplemental authorities. See Doc. 57; Doc. 58; Doc. 59; Doc. 60; Doc. 61. The court has reviewed all of these pleadings and supplemental authorities in deciding the motions. See D. Kan. Rule 7.1(f).

With this factual and procedural history in mind, the court now reviews the legal standards governing the Motion to Remand.

III. Legal Standard

" ‘Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]’ " United States v. James , 728 F. App'x 818, 822 (10th Cir. 2018) (quoting Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). Congress has empowered federal courts to hear certain cases removed from state court. Defendants may remove any state-court, civil action to federal court if the federal court has original jurisdiction over at least one of the plaintiff's claims. 28 U.S.C. § 1441(a) ; 28 U.S.C. § 1367. But, the court must remand the case to state court if the federal court lacks subject matter jurisdiction over the action. 28 U.S.C. § 1447(c). And the "removing party has the burden to demonstrate the appropriateness of removal from state to federal court." Baby C v. Price , 138 F. App'x 81, 83 (10th Cir. 2005) (citation omitted).

IV. Discussion

This case, in a nutshell, requires the court to decide whether plaintiff's claims arise under federal law for purposes of statutory federal question jurisdiction. This question requires the court to consider the doctrine of "complete preemption" and thus determine...