Estate of Lindsay v. Gulf Shore Facility, Inc.

Decision Date16 December 2021
Docket Number8:21-cv-1238-WFJ-JSS
PartiesESTATE OF MELISSA LINDSAY, Plaintiff, v. GULF SHORE FACILITY, INC., Defendant.
CourtU.S. District Court — Middle District of Florida
REPORT AND RECOMMENDATION
JULIE S. SNEED, UNTIED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff's Motion to Remand to State Court (“Motion”). (Dkt. 5.) For the reasons that follow, the Court recommends that the Motion be granted.

BACKGROUND

Plaintiff the Estate of Melissa Lindsay (Plaintiff) initially commenced this action against Defendant Gulf Shore Facility, Inc. (Defendant) in the Sixth Judicial Circuit for Pinellas County asserting two causes of action for negligence and wrongful death under Florida law. (Dkt. 1.) According to Plaintiff, Melissa Lindsay (“Ms Lindsay”) was admitted as a resident to Gulf Shore Care Center, a long-term care facility owned and operated by Defendant (the Facility), on April 29, 2020. (Id. at 24.) Plaintiff alleges that Defendant negligently failed to protect against the spread of COVID-19 within the Facility, resulting in the death of Ms. Lindsay. (Id. at 25-30.)

Defendant removed this action pursuant to 28 U.S.C. § 1441(a) based on the assertion that Plaintiff's claims are completely preempted by the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e (“PREP Act) and thus arise under federal law.” (Dkt. 1 at 2.) Plaintiff disagrees and moves the Court to remand the action back to state court. (Dkt. 5.)

The Prep Act

Congress enacted the PREP Act in 2005 and authorized the Secretary of Health and Human Services (the “Secretary”) to “make[] a determination that a disease or other health condition or other threat to health constitutes a public health emergency, or that there is a credible risk that the disease, condition, or threat may in the future constitute such an emergency.” 42 U.S.C. § 247d-6d(b)(1). If the Secretary makes such a determination, the Secretary is further empowered to make a declaration “recommending, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures.” Id. After the Secretary issues a declaration under the PREP Act, a covered person, as defined by the statute, is “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.” Id. at § 247d-6d(a)(1). The Secretary must specify the duration of the liability immunity for each covered countermeasure in the declaration. Id. § 247d-6d(b)(2)(B). Finally, the Secretary may amend the declaration through publication in the Federal Register, but any amendment shall not apply retroactively to limit immunity from suit. Id. § 247d-6d(b)(4).

Additionally, the PREP Act sets forth a single exception to the immunity from suit and liability for “death or serious physical injury proximately caused by willful misconduct” by a covered person. Id. at § 247d-6d(d)(1). The Act provides for exclusive federal jurisdiction over a cause of action under this subsection and further requires that any such action be filed in the United States District Court for the District of Columbia, after exhaustion of administrative remedies. Id. at § 247d-6d(d), (e).

In March 2020, the Secretary issued a PREP Act declaration relating to the COVID-19 pandemic. See Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.Reg. 15, 198 (Mar. 17, 2020). The Secretary subsequently amended the declaration multiple times. See, e.g., Fourth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed.Reg. 79, 190 (Dec. 9, 2020); Ninth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 86 Fed.Reg. 51, 160 (Sept. 14, 2021).

APPLICABLE STANDARDS

The “inferior federal courts are courts of limited jurisdiction. They are empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution, and which have been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999). Federal district courts have original jurisdiction over actions where diversity of citizenship exists (28 U.S.C. § 1332(a)) and actions arising under federal law (28 U.S.C. § 1331). See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 7-12 (1983).

A defendant may remove an action filed in state court that is within the federal court's original jurisdiction, meaning the action could have been filed in federal court in the first instance. 28 U.S.C. § 1441(a); see Conn. State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009); Premier Inpatient Partners LLC v. Aetna Health & Life Ins. Co., 371 F.Supp.3d 1056, 1064 (M.D. Fla. 2019); cf. City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997) (“The propriety of removal thus depends on whether the case originally could have been filed in federal court.”); Caterpillar Inc., 482 U.S. at 392. The removing party “bears the burden of establishing jurisdiction” on a motion to remand. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). “Any doubts about the propriety of federal jurisdiction should be resolved in favor of remand to state court.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008) (citing Diaz, 85 F.3d at 1505). If a court determines that a case was not properly removed “because it was not within the original jurisdiction of the United States district courts, the district court must remand it to the state court from which it was removed.” Franchise Tax Bd., 463 U.S. at 8.

ANALYSIS
A. Complete Preemption

In its Notice of Removal, Defendant contends that removal is proper because Plaintiff's claims are completely preempted by the PREP Act and arise under federal law. (Dkt. 1.) In the Motion, Plaintiff contends that the doctrine of complete preemption does not apply, and that Plaintiff's claims for negligence and wrongful death arise under state law, thereby warranting remand. (Dkt. 5.) Neither party contends that diversity jurisdiction would supply an alternative basis for removal. (Dkts. 5, 7.)

When considering whether a claim arises under federal law, the court examines only the ‘well-pleaded' allegations of the complaint and ignore[s] potential defenses.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003); see Caterpillar Inc., 482 U.S. at 392 (“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.”); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987) (“It is long settled law that a cause of action arises under federal law only when the plaintiff's well-pleaded complaint raises issues of federal law.”). Indeed, a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc., 482 U.S. at 393.

To the extent Defendant raises the PREP Act as an affirmative defense to Plaintiff's claims, this is insufficient to establish federal jurisdiction. Defendant contends that even though Plaintiff pleaded exclusively state law claims, the allegations “sound in federal law” and thus create federal question jurisdiction. (Dkt. 7 at 17.) [A] federal defense does not make the case removable, even if the defense is preemption and even if the validity of the preemption defense is the only issue to be resolved in the case.” Blab T.V. of Mobile, Inc. v. Comcast Cable Commc'ns, Inc., 182 F.3d 851, 854 (11th Cir. 1999) (citing Caterpillar Inc., 482 U.S. at 393); see Maglioli v. All. HC Holdings LLC, 16 F.4th 393, 407 (3d Cir. 2021) (“Ordinarily, a defense of federal preemption does not provide a basis for removal because it does not appear on the face of the well-pleaded complaint.”). Plaintiff is the “master of the claim” and may avoid federal jurisdiction by exclusively pleading state law claims. Caterpillar Inc., 482 U.S. at 392.

Notwithstanding Defendant also argues that federal jurisdiction exists here pursuant to a narrow exception to the “well-pleaded complaint” rule: the doctrine of complete preemption. Complete preemption “exists where the preemptive force of a federal statute is so extraordinary that it converts an ordinary state law claim into a statutory federal claim, ” thereby providing federal jurisdiction. Conn. State Dental Ass'n, 591 F.3d at 1343; see Metro. Life Ins. Co., 481 U.S. at 63-64 (“One corollary of the well-pleaded complaint rule developed in the case law, however, is that Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character.”). “Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Caterpillar Inc., 482 U.S. at 393. Complete preemption exists only where Congress has clearly manifested an intent to make causes of...

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