In re Nursing Facility COVID-Related Damages Actions Removed Under the PREP Act

• Decision Date: 24 January 2023
• Docket Number: Civil Action 22-CV-7528(GRB)(SIL),22-CV-7618(GRB)(JMW),22-CV-7719 (GRB)(ARL),22-CV-7817(GRB)(ST)
• Parties: In re: Nursing Facility COVID-Related Damages Actions Removed Under the PREP Act
• Court: U.S. District Court — Eastern District of New York

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In re: Nursing Facility COVID-Related Damages Actions Removed Under the PREP Act

Civil Action Nos. 22-CV-7528(GRB)(SIL), 22-CV-7618(GRB)(JMW), 22-CV-7719 (GRB)(ARL), 22-CV-7817(GRB)(ST)

United States District Court, E.D. New York

January 24, 2023

Brett R. Leitner Leitner Varughese Warywoda PLLC Attorneys for Plaintiff

Joseph Ciaccio Napoli Shkolnik, PLLC Attorneys for Plaintiff

Dylan C. Braverman Vigorito, Barker, Patterson, Nichols &amp Porter, LLP Attorneys for Defendants

MEMORANDUM OF DECISION & ORDER

Gary R. Brown, United States District Judge

Presently pending before the Court are several medical malpractice actions removed from the Supreme Court of New York, Suffolk County against defendants operating a nursing facility allegedly because these actions are covered by the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e, which, defendants argue, preempts plaintiffs' state law claims.^[1] Each case features a medical malpractice complaint which defendants have removed to this Court using cookie-cutter filings. In recent months, defendants' counsel have removed several nearly-identical actions based on the same theory and using indistinguishable filings, which cases have been remanded by the undersigned. In these cases defendants, once again, raise a litany of arguments that have previously been roundly rejected by this Court and others.

Defendants have moved to stay these four actions, pending purportedly related appeals before the Second Circuit. Plaintiffs have sought remand. For the reasons set forth herein, defendants have failed to meet their burden to establish that removal was proper, the motion to stay is DENIED, and these matters are hereby REMANDED.

Background

The complaints in these actions, premised solely on state law causes of action, seek damages based on allegations that plaintiffs (and/or their decedents) suffered serious if not fatal injury after contracting COVID-19 while residing at defendants' nursing home facility. Specifically, the complaints set forth causes of action for: (1) violation of New York Public Health Law § 2801-d and § 2803-c; (2) negligence prior to the outbreak of the pandemic; (3) negligence during the pandemic; (4) negligence per se; (5) conscious pain and suffering; (6) wrongful death; (7) gross negligence; (8) nursing home malpractice and professional negligence resulting in wrongful death; and (9) nursing home malpractice resulting in conscious pain and suffering. See 22-7618, Compl., DE 2-1. Defendants argue that “[p]laintiff's Complaint also pleads the exclusive federal cause of action for serious physical injury resulting from willful misconduct,” but a review of the complaint reveals that no such claim has been pled. See, e.g., CV No.22-7618, Notice of Removal, DE 2 at ¶ 16.

Defendants moved to stay these actions pending resolution of several cases before the Second Circuit Court of Appeals. See, e.g., id., DE 8 (citing Leroy v. Hume, CV Nos. 21-2158, 21-2159; Rivera-Zayas v. Our Lady of Consolation Geriatric Care Center, CV No. 21-2164, and Solomon v. St. Joseph Hospital, CV No. 21-2729). In the four actions pending before this Court, defendants simultaneously moved to dismiss the complaint based upon (1) “Plaintiff's lack of capacity as a ‘Proposed Administrator' of the decedent estate” and (2) claimed immunities afforded plaintiff under the PREP Act. CV No. 22-7618, DE 8.

Discussion

1. Defendants' Motion to Stay

As to defendants' motions to stay, Judge Ross set forth the standard in a similar case as follows:

“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). However, a “stay is not a matter of right, even if irreparable injury might otherwise result.” Virginian Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926). Instead, it is a discretionary determination dependent on the specifics of the matter before the court. Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion,” and the court is to apply the traditional four-factor standard to determine the stay's propriety: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Id. (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)); see also Uniformed Fire Officers Ass'n v. de Blasio, 973 F.3d 41, 48 (2d Cir. 2020).

While the first two factors are the most important, “[t]he degree to which a factor must be present varies with the strength of the others; ‘more of one [factor] excuses less of the other.'” U.S. S.E.C. v. Daspin, 557 Fed.Appx. 46, 48 (2d Cir. 2014) (quotations omitted) (alterations in original). In turn, “[t]he probability of success [on the merits] that must be demonstrated is inversely proportional to the amount of irreparable injury plaintiff[ ] will suffer absent the stay. Simply stated, more of one excuses less of the other.” Paulsen v. All Am. Sch. Bus Corp., No. 13-CV-3762 (KAM), 2013 WL 5744483, at *2 (E.D.N.Y. Oct. 23, 2013) (quoting Mohammed v. Reno, 309 F.3d 95, 101 (2d Cir. 2002)).

Leroy v. Hume, 563 F.Supp.3d 22, 25-26 (E.D.N.Y. 2021) (denying motion for stay).

In considering these factors, the first, and most important, turns on whether defendants have demonstrated a likelihood of success regarding the pending appeals, two of which involve lower court determinations from different district court judges, finding defendants' arguments without merit and remanding those actions. Rivera-Zayas v. Our Lady of Consolation Geriatric Care Ctr., 2021 WL 3549878, at *2, n.4 (E.D.N.Y. Aug. 11, 2021) (“this case is remanded for lack of subject matter jurisdiction”); Leroy v. Hume, 554 F.Supp.3d 470, 482 (E.D.N.Y. 2021) (“given that none of defendants' arguments for removal jurisdiction prevails, I grant plaintiffs' motion for remand”). In the third, a district judge denied defendants' motion to dismiss a removed case, rejecting the assertion that PREP Act immunity bars the suit in question. Solomon v. St. Joseph Hospital, No. 20-cv-3213, DE 31, (E.D.N.Y. Sept. 29, 2021). In evaluating defendants' chances on appeal, the Court must recognize the steady drumfire of decisions by district judges^[2] and the undersigned^[3] roundly rejecting the arguments proffered here. “[T]here is near unanimity among district courts nationwide-and unequivocal agreement among district courts in the Second Circuit-that there is no federal subject matter jurisdiction, based on either complete preemption under the PREP Act or federal officer jurisdiction, in cases like the instant one.” Leroy, 563 F.Supp.3d at 28.

Furthermore, defendants' counsel face significant appellate hurdles. Under Section 1447 of Title 28, United States Code, “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” though removals under Section 1442 are expressly excepted, and caselaw has limited the statute to orders “based on lack of subject matter jurisdiction or defects in removal procedure.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996). Two removal orders subject to appeal here were based upon a lack of subject matter jurisdiction. Thus, in those appeals, the only issue that appears subject to appellate review is defendants' highly-dubious “federal officer” removal under 28 U.S.C. § 1442, discussed further herein. The third appeal, Solomon, constitutes an interlocutory appeal of defendants' motion to dismiss for lack of subject matter jurisdiction which, as counsel acknowledges, must fall into the “‘small class' of decisions that are immediately appealable under 28 U.S.C. § 1291 even though the decision has not terminated the proceedings in the district court.” Solomon v. St. Joseph Hospital, Appellate Brief for Defendants, No. 21-2729-cv, 2022 WL 444814 at *30 (2d Cir. Feb. 9, 2022) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988)). These procedural obstacles render defendants' chances of success even more attenuated.

Defendants make no effort to establish irreparable harm in absence of a stay, nor do they address the effect of a stay on the plaintiffs or the public. CV No.22-7618, DE 8. Presumably assertions of irreparable harm predicated upon having to litigate in the state courts of New York would fail, as those courts are required to consider federal claims. Haywood v. Drown, 556 U.S. 729, 740 (2009) (“having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy”); Garcia v. New York City Health & Hosps. Corp., No. 20 Civ. 9970 (CM), 2021 WL 1317178, at *1 (S.D.N.Y. Apr. 8, 2021) (“While defendant may be able to raise the defense of PREP Act immunity, there is no compelling reason why such defense cannot be made in a state court proceeding.”); cf. Huffman v. Pursue, Ltd., 420 U.S. 592, 606 (1975) (declining to consider assertion that “every litigant who asserts a federal claim is entitled to have it decided on the merits by a federal, rather than a state, court”). Defendants have thus failed to satisfy the remaining elements warranting a...