Jones v. St. Jude Operating Co., Case No. 3:20-cv-1088-SB

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtBECKERMAN, U.S. Magistrate Judge.
Citation524 F.Supp.3d 1101
Parties ESTATE OF Judith Joy JONES, THROUGH its Personal Representative Angela BROWN, The Estate of Christina Broadbent, through its Personal Representative Matthew Broadbent, The Estate of Gloria Clark, through its Personal Representative Leigh Ann Byrne, The Estate of Lorraine Conley, through its Personal Representative Cliff Conley, The Estate of Kevin Fortune, through its Personal Representative Greg Fortune, and The Estate of Alan Kuzens, through its Personal Representative Zach Kuzens, Plaintiffs, v. ST. JUDE OPERATING COMPANY, LLC, d/b/a Healthcare at Foster Creek, and Benicia Senior Living, LLC, Defendants.
Docket NumberCase No. 3:20-cv-1088-SB
Decision Date08 March 2021

524 F.Supp.3d 1101

ESTATE OF Judith Joy JONES, THROUGH its Personal Representative Angela BROWN, The Estate of Christina Broadbent, through its Personal Representative Matthew Broadbent, The Estate of Gloria Clark, through its Personal Representative Leigh Ann Byrne, The Estate of Lorraine Conley, through its Personal Representative Cliff Conley, The Estate of Kevin Fortune, through its Personal Representative Greg Fortune, and The Estate of Alan Kuzens, through its Personal Representative Zach Kuzens, Plaintiffs,
v.
ST. JUDE OPERATING COMPANY, LLC, d/b/a Healthcare at Foster Creek, and Benicia Senior Living, LLC, Defendants.

Case No. 3:20-cv-1088-SB

United States District Court, D. Oregon.

Signed March 8, 2021


524 F.Supp.3d 1102

Bonnie Richardson, Joseph L. Franco, Richardson Wright LLP, Portland, OR, for Plaintiffs.

Jay W. Beattie, Kelly A. Giampa, Melissa J. Bushnick, Michael J. Estok, Lindsay Hart LLP, Portland, OR, for Defendants.

ORDER

IMMERGUT, District Judge.

On October 14, 2020, Magistrate Judge Stacie F. Beckerman issued her original

524 F.Supp.3d 1103

Findings & Recommendation ("F&R") in this case, ECF 15, recommending that this Court grant Plaintiffs’ Motion to Remand to State Court, ECF 6. Defendants filed Objections to the F&R and notices of supplemental authority, raising new arguments before this Court not previously considered by the Magistrate Judge. See ECF 20; ECF 24. Plaintiffs also filed responses to Defendants’ new arguments. See ECF 22; ECF 28. After reviewing the briefs, this Court recommitted the matter to Judge Beckerman for further consideration in light of the parties’ new arguments and supplemental briefing. ECF 31.

On February 16, 2021, Judge Beckerman issued an Amended F&R, ECF 36, withdrawing and replacing the original F&R. The Amended F&R recommends granting Plaintiffs’ Motion to Remand to State Court, ECF 6, and denying as moot Defendants’ Motion to Dismiss, ECF 5. No party filed objections.

DISCUSSION

12 Under the Federal Magistrates Act ("Act"), as amended, the court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge's F&R, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. But the court is not required to review, de novo or under any other standard, the factual or legal conclusions of the F&R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149–50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Nevertheless, the Act "does not preclude further review by the district judge, sua sponte" whether de novo or under another standard. Thomas, 474 U.S. at 154, 106 S.Ct. 466.

No party having filed objections, this Court has reviewed the Amended F&R and accepts Judge Beckerman's conclusions. The Amended F&R, ECF 36, is adopted in full. Plaintiffs’ Motion to Remand to State Court, ECF 6, is GRANTED, and Defendants’ Motion to Dismiss, ECF 5, is DENIED AS MOOT.

IT IS SO ORDERED.

AMENDED FINDINGS AND RECOMMENDATION

BECKERMAN, U.S. Magistrate Judge.

This matter comes before the Court again on Plaintiffs’ motion to remand to state court.1 Plaintiffs’ motion presents the question of whether the Public Readiness and Emergency Preparedness Act (the "PREP Act") completely preempts any of Plaintiffs’ state law claims and confers original jurisdiction upon this Court.

The Court issued its original Findings and Recommendation ("F&R") on October 14, 2020, recommending that the district judge grant Plaintiffs’ motion to remand. (ECF No. 15.) Defendants St. Jude Operating Company, LLC ("St. Jude") and Benicia Senior Living, LLC ("Benicia") (together with St. Jude, "Defendants") objected to the F&R, and filed notices of supplemental authority, causing the district judge to recommit this matter to the undersigned "for further consideration in light of the parties’ new arguments and

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supplemental briefing." (Order at 3, ECF No. 31.) Accordingly, the Court withdraws and replaces its original F&R (ECF No. 15), in light of subsequent authority.

For the reasons explained below, the Court finds that the PREP Act does not completely preempt any of Plaintiffs’ claims, and therefore recommends that the district judge grant Plaintiffs’ motion to remand.

BACKGROUND2

I. THE PARTIES

Defendant St. Jude owns a nursing home facility in Portland, Oregon, named Healthcare at Foster Creek ("Foster Creek"). (FAC ¶¶ 1, 15.) Defendant Benicia manages Foster Creek's operations. (FAC ¶¶ 1, 16-17.) Plaintiffs lived at Foster Creek "when they contracted the COVID-19 virus that ultimately caused their deaths." (FAC ¶ 8.)

II. THE STATE INVESTIGATION

The State of Oregon (the "State") linked Foster Creek to numerous COVID-19 cases and deaths. (See FAC ¶¶ 1, 29, 36-41, 47, 53, 56.) The State launched an initial investigation into Foster Creek's infection control practices in April 2020. (FAC ¶ 29.) The State's April 15, 2020 report revealed that Foster Creek " ‘failed to implement adequate infection control practices to prevent the spread of COVID-19[.]’ " (FAC ¶ 29.) The State identified many deficient practices at Foster Creek, including failing to train staff regarding COVID-19 infection control, failing to follow Centers for Disease Control and Prevention's guidance, failing correctly to wear or use personal protective equipment ("PPE"), wash hands, and change PPE between residents, failing to provide staff with adequate PPE, working across multiple resident units and rooms, failing to socially distance, failing to maintain adequate or accurate medical records, and failing to provide adequate staffing levels. (FAC ¶ 29.) Based on these findings, the State cited Foster Creek for violating several Oregon Administrative Rules, determined that Foster Creek " ‘failed to ensure appropriate measures [were] in place to prevent the spread of COVID-19,’ " and "mandate[d] an immediate infection control training to facility staff in an effort to correct Foster Creek's many deficiencies." (FAC ¶¶ 30-32.)

After the State issued its report, the Oregon Department of Human Services ("DHS") provided PPE and technical assistance to Foster Creek, and DHS and the Oregon Health Authority continued to investigate and monitor Foster Creek's infection control practices. (FAC ¶ 42.) DHS discovered that Foster Creek continued to engage in inadequate infection control practices, "including staff cohorting residents, staff working across units, improper training, and not meeting required staffing levels." (FAC ¶ 42.) Meanwhile, "COVID-19 continued to spread at Foster Creek," and the resident "death toll [continued to] mount[ ]." (FAC ¶ 47.)

As a result, on May 4, 2020, DHS issued an Order of Emergency Suspension and shut down Foster Creek's nursing facility, citing several failures. (FAC ¶¶ 48, 57.)

III. PLAINTIFFS’ DEATHS

Each of the decedent plaintiffs was a residents of Foster Creek when they contracted the COVID-19 virus that ultimately caused their deaths. (FAC ¶ 8.) At the

524 F.Supp.3d 1105

time of their deaths, Judith Joy Jones was a 75-year-old female; Christina Broadbent was a 70-year-old female; Gloria Clark was a 92-year-old female; Lorraine Conley was a 92-year-old female; Kevin Fortune was a 59-year-old male; and Alan Kuzens was a 74-year-old male. (FAC ¶¶ 9-14.)

IV. PROCEDURAL HISTORY

Plaintiffs filed this action against Defendants in Multnomah County Circuit Court, alleging wrongful death claims based on negligence, negligence per se , and elder abuse. (Notice of Removal ¶ 5; FAC at 31, 33, 35.) Defendants timely removed Plaintiffs’ case to federal court. (Notice of Removal ¶ 6.) In their notice of removal, Defendants asserted that this Court has "original jurisdiction over this action under 28 U.S.C. § 1331 because Plaintiffs’ claims are completely preempted by the [PREP Act], and thus arise under federal law." (Notice of Removal ¶ 7.) Plaintiffs’ motion to remand followed.

DISCUSSION

I. COMPLETE PREEMPTION

A. Legal Standards

A defendant may "remove an action filed in state court to federal court if the federal court would have original subject matter jurisdiction over the action." Moore-Thomas v. Alaska Airlines, Inc. , 553 F.3d 1241, 1243 (9th...

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4 practice notes
  • Maglioli v. Alliance HC Holdings LLC, s. 20-2833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 20, 2021
    ...Ctrs. of Am., Inc. , No. 20-0958, 2021 WL 1121034 (D.N.M. Mar. 24, 2021) ; Est. of Jones ex rel. Brown v. St. Jude Operating Co., LLC , 524 F.Supp.3d 1101 (D. Or. 2021) ; Saunders v. Big Blue Healthcare, Inc. , 522 F.Supp.3d 946 (D. Kan. 2021) ; Dupervil v. All. Health Operations, LCC , 516......
  • Creel v. Loy, CV 20-79-M-DWM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • March 10, 2021
    ...Reasonable minds could therefore reach but one conclusion: Creel's injuries were not foreseeably and substantially caused by Loy's 524 F.Supp.3d 1101 alleged negligence. Thus, summary judgment is also appropriate on these grounds. CONCLUSION Accordingly, IT IS ORDERED that Defendants’ motio......
  • Estate of Lindsay v. Gulf Shore Facility, Inc., 8:21-cv-1238-WFJ-JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 16, 2021
    ...No. 6:21-cv-381-JA-GJK, 2021 WL 1687173, at *2 (M.D. Fla. Apr. 29, 2021); Est. of Jones ex rel. Brown v. St. Jude Operating Co., LLC, 524 F.Supp.3d 1101, 1108-12 (D. Or. 2021); Dupervil v. All. Health Operations, LCC, 516 F.Supp.3d 238, 252-57 (E.D.N.Y. 2021); Est. of Smith, 2021 WL 100376,......
  • Lilly v. SSC Hous. Sw. Operating Co., Civil Action 4:20-cv-03478
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • January 4, 2022
    ...ruling has been harshly criticized by district courts from sea to shining sea. See Brown ex rel. Jones v. St. Jude Operating Co., LLC, 524 F.Supp.3d 1101, 1111 (D. Or. 2021); Dupervil v. All. Health Operations, LCC, 516 F.Supp.3d 238, 253 n.2 (E.D.N.Y. 2021). I join in the chorus of courts ......
4 cases
  • Maglioli v. Alliance HC Holdings LLC, s. 20-2833
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 20, 2021
    ...Ctrs. of Am., Inc. , No. 20-0958, 2021 WL 1121034 (D.N.M. Mar. 24, 2021) ; Est. of Jones ex rel. Brown v. St. Jude Operating Co., LLC , 524 F.Supp.3d 1101 (D. Or. 2021) ; Saunders v. Big Blue Healthcare, Inc. , 522 F.Supp.3d 946 (D. Kan. 2021) ; Dupervil v. All. Health Operations, LCC , 516......
  • Creel v. Loy, CV 20-79-M-DWM
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • March 10, 2021
    ...Reasonable minds could therefore reach but one conclusion: Creel's injuries were not foreseeably and substantially caused by Loy's 524 F.Supp.3d 1101 alleged negligence. Thus, summary judgment is also appropriate on these grounds. CONCLUSION Accordingly, IT IS ORDERED that Defendants’ motio......
  • Estate of Lindsay v. Gulf Shore Facility, Inc., 8:21-cv-1238-WFJ-JSS
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 16, 2021
    ...No. 6:21-cv-381-JA-GJK, 2021 WL 1687173, at *2 (M.D. Fla. Apr. 29, 2021); Est. of Jones ex rel. Brown v. St. Jude Operating Co., LLC, 524 F.Supp.3d 1101, 1108-12 (D. Or. 2021); Dupervil v. All. Health Operations, LCC, 516 F.Supp.3d 238, 252-57 (E.D.N.Y. 2021); Est. of Smith, 2021 WL 100376,......
  • Lilly v. SSC Hous. Sw. Operating Co., Civil Action 4:20-cv-03478
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • January 4, 2022
    ...ruling has been harshly criticized by district courts from sea to shining sea. See Brown ex rel. Jones v. St. Jude Operating Co., LLC, 524 F.Supp.3d 1101, 1111 (D. Or. 2021); Dupervil v. All. Health Operations, LCC, 516 F.Supp.3d 238, 253 n.2 (E.D.N.Y. 2021). I join in the chorus of courts ......

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