Maglioli v. Andover Subacute Rehab. Ctr. I
| Decision Date | 12 August 2020 |
| Docket Number | Civ. No. 20-6985 (KM)(ESK),Civ. No. 20-6605 (KM)(ESK) |
| Citation | 478 F.Supp.3d 518 |
| Parties | ESTATE OF Joseph MAGLIOLI, Bernard Maglioli, Dante Maglioli, and Estate of Dale and Petry Christopher Petry, Plaintiffs, v. ANDOVER SUBACUTE REHABILITATION CENTER I; Andover Subacute Rehabilitation Center II; Altitude Health Services Inc.; Altitude Investments, Ltd.; Alliance Healthcare; Chaim "Mutty" Scheinbaum; Louis Schwartz; John and Jane Does 1-10; and ABC and XYZ Corporations 1-10, Defendants. Estate of Wanda Kaegi and Victor Kaegi, Estate of Stephen Blaine and Sharon Farrell, Plaintiffs, v. Andover Subacute Rehabilitation Center I; Andover Subacute Rehabilitation Center II; Altitude Health Services Inc.; Altitude Investments, Ltd.; Alliance Healthcare; Chaim "Mutty" Scheinbaum; Louis Schwartz; John and Jane Does 1-10; and ABC and XYZ Corporations 1-10, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Daniel Gerard Petoia Marchese, The Marchese Law Firm, LLC, Newton, NJ, for Plaintiffs.
Salvatore Christopher Martino, Lewis, Brisbois, Bisgaard & Smith, LLP, Newark, NJ, for Defendants.
This case, irrespective of fault, is a sad one. These related actions assert state-law claims of negligence, wrongful death, and medical malpractice on behalf of residents and patients at Defendants’ nursing care facilities. Plaintiffs filed these actions in New Jersey state court. Defendants then removed the actions under 28 U.S.C. §§ 1441 and 1442, primarily asserting that Plaintiffs’ claims were preempted by the Public Readiness and Emergency Preparedness ("PREP") Act, and secondarily asserting that Defendants were entitled to a federal forum as "federal officers" or the equivalent. Plaintiffs have now moved to remand. (6605 Action, DE 6, DE 7; 6985 Action, DE 5, DE 6)
For the reasons explained in this opinion, I will grant Plaintiffs’ motions to remand the case to their chosen state forum.
The facts alleged in this recently-filed complaints are assumed to be true for present purposes. They have not, of course, been tested by any fact finder.
The allegations of the complaints arise from the treatment of residents at two nursing facilities in Andover, New Jersey. "Defendant Andover Subacute Rehabilitation Center I is located at: 1 Obrien Lane, Lafayette Township, NJ 07848." (6605 2AC ¶ 3) "Defendant Andover Subacute Rehabilitation Center II is located at: 99 Mulford Road, Lafayette Township, New Jersey 07848." (Id. ¶ 4) "Defendant Alliance Healthcare is a New Jersey domiciled company, with a business address at:1382 Lanes Mill Road, Lakewood, New Jersey 08701, USA, and is owned and/or operated by Defendant Chaim ‘Mutty’ Scheinbaum and Defendant Louis Schwartz." (Id. ¶ 6)
Plaintiffs were all residents or patients at Defendants’ facilities and died while in their care, allegedly as a result of Defendants’ failure to exercise due care with respect to coronavirus infections. (Id. ¶ 2)
Beginning in 2019, the virus now known as COVID-19 began spreading throughout the world. In January 2020, Defendants learned of the virus. (Id. ¶ 9) In February 2020, news reports reflected that residents at a healthcare facility in Washington State became infected with the virus and several residents died. (Id. ¶ 11)
By now, the virus, the resulting pandemic, and the tragic consequences, particularly for persons in close quarters like nursing homes, are familiar to all. COVID-19 is an acute respiratory disease caused by the SARS-CoV-2 betacoronavirus or a virus mutating therefrom. The COVID-19 virus can be transmitted even by persons who display no symptoms. It spreads "mainly through close contact [within about six feet] from person-to-person in respiratory droplets" and from contact with contaminated surfaces. See Ctrs. for Disease Control and Prevention, How to Protect Yourself & Others, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited July 20, 2020). To thwart the spread of the illness, the Centers for Disease Control and Prevention ("CDC") recommend social distancing (staying at least six feet away from others), wearing cloth face coverings when around others, regular disinfection of "frequently touched surfaces," and washing hands often with soap and water, among other practices. Id. Obviously, however, the "the best way to prevent illness is to avoid being exposed to this virus." Id. There are treatments, but currently there is no vaccine or cure. Persons with certain chronic underlying medical conditions are at a greater risk of being affected by COVID-19. (6605 2AC ¶ 10)
On March 26, 2020, the Andover Centers fell victim to a COVID-19 outbreak. (Id. ¶ 12) Nevertheless, Plaintiffs allege, "Defendants failed to take the proper steps to protect the residents and/or patients at their facilities from the Covid-19 virus." (Id. ¶ 13) Management, say Plaintiffs, at first provided only a limited number of masks to employees of the facilities, restricting them to the registered nurses. (Id. ¶ 14) Meanwhile, others who interacted with residents and patients, such as housekeepers, therapists, and nursing assistants, were not provided masks. (Id. )
Plaintiffs more generally allege, however, that Defendants are liable for failing to observe a wide range of appropriate safety precautions, specifically:
failing to monitor outside visitors to the facilities, failing to monitor food preparation and distribution, failing to monitor employees, and failing to monitor other residents, etc., when the same were dealing with the residents and/or patients at the facilities in order to prevent the spread of the Covid-19 virus therein; furthermore, said Defendants breached their duty to Wanda Kaegi, Stephen Blaine and the residents and/or patients at the Andover Subacute Rehabilitation Centers I and II by failing to have (or implement) proper protocols and procedures, and/or failing to have or provide personal protective equipment, in place for the prevention of the spread of the Covid-19 virus, and/or by failing to properly execute existing protocols and procedures set in place to prevent the spread of the Covid-19 virus.
(See, e.g. , 6985 AC ¶¶ 28, 32, 36; see also 6605 2AC ¶¶ 28, 32, 36)
Joseph Maglioli died on April 9, 2020, and Dale Petry died on April 15, 2020, both from COVID-19 infections. (Id. ¶ 15) Wanda Kaegi died on May 2, 2020 and Stephen Blaine died on April 11, 2020, both from COVID-19 infections. (6985 AC ¶ 15) The complaints allege that at least 50 other patients were infected at the Andover facilities and died as a result of COVID-19. (6605 2AC ¶ 16; 6985 AC ¶ 16) Plaintiffs attribute all of these deaths to the Andover facilities’ failure to take proper protective measures. (Id. ¶ 17)
The complaints assert the following claims:
On May 19, 2020, Plaintiffs filed their complaints in the Superior Court of New Jersey, Law Division, Sussex County. A week later, on May 26, 2020, Plaintiffs filed amended complaints in both actions.2
On May 29, 2020, Defendants filed a notice of removal of the 6605 Action and on June 9, 2019, Defendants filed a notice of removal of the 6985 Action. Both notices of removal recited that the complaints alleged medical negligence for failure to protect plaintiffs from COVID-19 because Defendants did not properly administer and utilize personal protective equipment. The complaints do not in so many words set forth a federal-law cause of action. Nevertheless, say Defendants, this Court has original jurisdiction pursuant to 28 U.S.C. § 1331 because this action is preempted by a federal statute, namely the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e(2006) as modified by the Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 (Mar. 17, 2020) (). (6605 Action, DE 1 at 3-4) Defendants removed the actions on the basis that the PREP Act "provides liability protections for pandemic and epidemic products and security countermeasures," including "respiratory protective devices." Defendants state that they are "covered persons" under the PREP Act and that such (Id. at 4-5)
Defendants also removed the actions under 28 U.S.C. § 1442(a)(1) because " ‘(1) Defendants are ‘persons’ within the meaning of the statute; (2) the Plaintiffs’ claims are based upon Defendants’ conduct ‘acting under’ the United States, its agencies, or its officers; (3) the Plaintiffs’ claims are ‘for, or relating to’ an act under color of federal office; and (4) Defendants raise a colorable federal defense to the Plaintiff's claims.’ " (DE 1 at 7 (citing Papp v. Fore-Kast Sales Co. , 842 F.3d 805, 811 (3d Cir. 2016) ))
On June 12, 2010, Plaintiffs filed motions to remand these matters to state court. (6605 Action, DE 6, DE 7; 6985 Action, DE 5, DE 6) Defendants oppose the motions. (6605 Action, DE 8; 6985 Action, DE 7)
On July 23, 2020, Plaintiffs filed a stipulation of dismissal as to the Altitude Defendants, which I so-ordered. (6605, DE 10, DE 12; 6985, DE 9, DE 10)
A defendant may remove "any civil action brought in a State court of which the district courts of the United...
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