Gwilt v. Harvard Square Ret. & Assisted Living

• Decision Date: 07 May 2021
• Docket Number: Civil Action No. 21-cv-0472-PAB
• Citation: 537 F.Supp.3d 1231
• Parties: Jacqueline GWILT, individually and as the authorized representative of the Estate of Robert Quentin Sharpe, Plaintiff, v. HARVARD SQUARE RETIREMENT & ASSISTED LIVING, and Watermark Retirement Communities, Defendants.
• Court: U.S. District Court — District of Colorado

537 F.Supp.3d 1231

Jacqueline GWILT, individually and as the authorized representative of the Estate of Robert Quentin Sharpe, Plaintiff,

v.HARVARD SQUARE RETIREMENT & ASSISTED LIVING, and Watermark Retirement Communities, Defendants.

Civil Action No. 21-cv-0472-PAB

United States District Court, D. Colorado.

Signed May 7, 2021

Arron Burt Nesbitt, Miah Marie Brouhard, Whitcomb Selinsky PC, Nicole Kim Griffard, Hustead Law Firm PC, Denver, CO, for Plaintiff.

Elizabeth C. Moran, Rodrigo Lugo, Catherine O'Brien Crum, Nixon Shefrin Ogburn Drew, P.C., Greenwood Village, CO, for Defendants.

ORDER TO SHOW CAUSE

PHILIP A. BRIMMER, Chief United States District Judge

This matter is before the Court sua sponte on the Notice of Removal [Docket No. 1]. Defendants state that the Court has both federal-question and diversity jurisdiction pursuant to 280 U.S.C. §§ 1331, 1332. Docket No. 1 at 1.

In every case and at every stage of the proceeding, a federal court must satisfy itself as to its own jurisdiction, even if doing so requires sua sponte action. See Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver , 628 F.2d 1289, 1297 (10th Cir. 1980). Absent an assurance that jurisdiction exists, a court may not proceed in a case. See Cunningham v. BHP Petroleum Gr. Brit. PLC , 427 F.3d 1238, 1245 (10th Cir. 2005). Courts are well-advised to raise the issue of jurisdiction on their own, regardless of parties’ apparent acquiescence. First, it is the Court's duty to do so. Tuck v. United Servs. Auto. Ass'n , 859 F.2d 842, 844 (10th Cir. 1988). Second, regarding subject matter jurisdiction, "the consent of the parties is irrelevant, principles of estoppel do not apply, and a party does not waive the requirement by failing to challenge jurisdiction." Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (internal citations omitted). Finally, delay in addressing the issue only compounds the problem if, despite much time and expense having been dedicated to the case, a lack of jurisdiction causes it to be dismissed. See U.S. Fire Ins. Co. v. Pinkard Constr. Co. , No. 09-cv-00491-PAB-MJW, 2009 WL 2338116, at *3 (D. Colo. July 28, 2009).

"The party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter." Radil v. Sanborn W. Camps, Inc. , 384 F.3d 1220, 1224 (10th Cir. 2004). "Federal district courts must strictly construe their removal jurisdiction." Envtl. Remediation Holding Corp. v. Talisman Capital Opportunity Fund, L.P. , 106 F. Supp. 2d 1088, 1092 (D. Colo. 2000). "[A]ll doubts are to be resolved against removal." Fajen v. Found. Reserve Ins. Co., Inc. , 683 F.2d 331, 333 (10th Cir. 1982). Thus, the Court presumes that no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction. Lorentzen v. Lorentzen , No. 09-cv-00506-PAB, 2009 WL 641299, at *1 (D. Colo. Mar. 11, 2009). The Court first considers defendants’ arguments that the Court has federal-question jurisdiction before turning to defendants’ diversity jurisdiction arguments.

I. FEDERAL-QUESTION JURISDICTION

Defendants assert that the Court has federal-question jurisdiction to hear their case on removal pursuant to 28 U.S.C. § 1331. Docket No. 1 at 3, ¶ 7. Under § 1331, "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. "Under the longstanding well-pleaded complaint rule ... a suit ‘arises under’ federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law." Vaden v. Discover Bank , 556 U.S. 49, 60, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009) (quoting Louisville & Nashville R.R. Co. v. Mottley , 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908) ) (internal quotation marks and alteration marks omitted). In other words, "[a]s a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim." Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). For removal jurisdiction, "the required federal right or immunity must be an essential element of the plaintiff's cause of action, and ... the federal controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal." Fajen , 683 F.2d at 333 (internal quotation marks omitted); see also Gully v. First Nat'l Bank , 299 U.S. 109, 113, 57 S.Ct. 96, 81 L.Ed. 70 (1936). It "takes more than a federal element to open the ‘arising under’ door" of § 1331. Empire Healthchoice Assurance, Inc. v McVeigh , 547 U.S. 677, 701, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006).

Here, the initial pleading in state court was the complaint. Docket No. 1-15. Therefore, the Court must analyze the complaint to determine whether it is based on federal law. See, e.g. , King v. United Way of Central Carolinas, Inc. , 2009 WL 2432699, at *3 (W.D.N.C. June 16, 2019) ; Butts v. Hansen , 650 F. Supp. 996, 998 (D. Minn. 1987) ; Perimeter Lighting, Inc. v. Karlton , 456 F. Supp. 355, 358 (N.D. Ga. 1978).

According to the complaint, plaintiff's father was a resident of defendant Harvard Square Retirement & Assisted Living ("HSR") at the time of his death. Docket No. 1-15 at 2, ¶ 3. Plaintiff alleges that HSR "improperly re-used personal protective equipment and moved COVID-positive patients to a unit with residents who were COVID-negative." Id. at 5, ¶ 27. This led Mr. Sharpe to contract COVID-19 and, after he developed "respiratory distress," HSR took him to the Medical Center of Aurora, where he ultimately died. Id. , ¶¶ 28–29, 32. According to the complaint, the lawsuit

arises out of (1) Defendants’ gross negligence and reckless misconduct in failing to comply with Colorado Public Health Order 20-20 ("Order 20-20") and Federal Law CFR 483.68; and (3) [sic] Defendants’ breach of contract when they failed to inform [Jacqueline Gwilt], as Mr. Sharpe's daughter and legal representative, that Mr. Sharpe had been admitted to the Medical Center of Aurora, where he ultimately passed away, after contracting COVID-19 due to Defendants’ negligence.

Id. at 3, ¶ 13. Plaintiff pleads four state-law claims – wrongful death, survival action negligence, negligence per se, and breach of contract. Id. 6–10.

Defendants argue that plaintiff's claims are "completely pre[-]empted" by the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. § 247d-6d and "thus arise under federal law," giving the Court federal-question subject matter jurisdiction. Docket No. 1 at 5, ¶ 14. Defendants also state that "federal jurisdiction is appropriate as this action raises substantial federal issues and therefore ‘arises under’ federal law." Id. Defendants are mistaken. Because the PREP Act does not apply to this case, the doctrine of complete preemption, to the extent it even exists under the PREP Act, does not permit removal. Nor does resolution of plaintiff's claims raise substantial federal issues or a serious federal interest in the claims.

The doctrine of complete preemption is an exception to the well-pled complaint rule. See Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc. , 693 F.3d 1195, 1204 (10th Cir. 2012). "Complete preemption is a rare doctrine" that has only been recognized in a handful of areas. Id. at 1204–05 (quoting Cmty. State Bank v. Strong , 651 F.3d 1241, 1260 n.16 (11th Cir. 2011) ).¹ It is not to be lightly invoked. Id. at 1205 ; Connolly v. Union Pac. R.R. Co. , 453 F. Supp. 2d 1104, 1109 (E.D. Mo. 2006) ("Courts have cautioned against an expansive application of the exception."). Complete preemption is not a statement of the breadth of a statute's preemptive power, "but rather as a description of the specific situation in which a federal law not only preempts a state law to some degree but also substitutes a federal cause of action for the state cause of action, thereby manifesting Congress's intent to permit removal." Devon Energy Prod. , 693 F.3d at 1205 (quoting Schmeling v. NORDAM , 97 F.3d 1336, 1342 (10th Cir. 1996) ). Only complete preemption, not express preemption, which is an affirmative defense that a plaintiff's state-law claim has been preempted by a federal statute, supports removal. Felix v. Lucent Techs. , 387 F.3d 1146, 1153–1158 (10th Cir. 2004)

"[A] claim of complete preemption demands a two-part analysis: first, we ask whether the federal regulation at issue preempts the state law relied on by the plaintiff; and second, whether Congress intended to allow removal in such a case, as manifested by the provision of a federal cause of action to enforce the federal regulation." Devon Energy Prod. , 693 F.3d at 1205. "For reasons of comity and prudence," courts begin with the second prong of the test, as the "analysis under the complete preemption doctrine is jurisdictional and therefore preliminary to any consideration of the merits." Schmeling , 97 F.3d at 1343. Importantly, the claims at issue must fall within the scope of the relevant federal statute for complete preemption to apply. See Beneficial Nat'l Bank , 539 U.S. at 8, 123 S.Ct. 2058 ("When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.").

The PREP Act applies to the administration or use of "covered countermeasures" and is invoked when the Secretary of Health and Human Services (the "Secretary") determines that a disease or other health condition constitutes a public health emergency. See 42 U.S.C. § 247d-6d(b)(1). If the Secretary makes such a determination, he or she "may make a declaration, through publication in the Federal Register, recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered...