Maltbia v. Big Blue Healthcare, Inc.
| Decision Date | 30 March 2021 |
| Docket Number | Case No. 20-2607-DDC-KGG |
| Parties | ROSEMARY MALTBIA, individually and as Special Administrator of the Estate of IDA ROSE DOCKERY, Plaintiff, v. BIG BLUE HEALTHCARE, INC, d/b/a RIVERBEND POST-ACUTE REHABILITATION and RYAN LEIKER, Defendants. |
| Court | U.S. District Court — District of Kansas |
This matter is before the court on plaintiff's Motion to Remand (Doc. 12). Plaintiff argues that her state law claims relying on Kansas law belong in state court. Defendants argue that a federal law—the Public Readiness and Emergency Preparedness Act (PREP Act)—completely preempts plaintiff's claims, and thus provides this court with federal question jurisdiction over them. For reasons explained below, the court rejects defendants' argument and concludes it lacks subject matter jurisdiction over the action. It thus remands the case to state court.
Ida Rose Dockery lived in Riverbend Post-Acute Rehabilitation ("Riverbend"), a skilled nursing facility, in Wyandotte County, Kansas. Doc. 1-1 at 2 (Pet. ¶¶ 1-2, 6). Ms. Dockery lived at Riverbend because she was in a "defenseless and dependent condition" and relied on defendants "for her safety, care and protection." Id. at 3 (Pet. ¶ 15).
Plaintiff alleges that "Riverbend knew, or should have known, the importance of ensuring COVID-19 did not enter or spread in its facility and should have monitored residents, employees and visitors of the facility for fever, cough and other known symptoms of COVID-19 and practiced social distancing." Id. at 2 (Pet. ¶ 8). She asserts that "a Riverbend staff member began exhibiting signs and symptoms of COVID-19 infection" between March 24, 2020 and March 27, 2020. Id. at 3 (Pet. ¶ 9). She also asserts that this symptomatic staff member "who had a cough and/or fever, was allowed to enter Riverbend without appropriate screening and was allowed to work in the facility without utilizing appropriate infection control measures[.]" Id. at 3 (Pet. ¶ 10). The staff member tested positive for COVID-19 on March 30, 2020. Id. (Pet. ¶ 11). Riverbend reported its first positive COVID-19 case on April 1, 2020. Id. (Pet. ¶ 12). By April 3, 2020, at least seventeen residents and two staff members tested positive for COVID-19. Id. (Pet. ¶ 13). On April 18, 2020, Ms. Dockery died from COVID-19 complications. Id. (Pet. ¶ 14).
On October 30, 2020, Rosemary Maltbia—daughter of Ms. Dockery—filed suit in the District Court of Wyandotte County, Kansas bringing state law claims against Big Blue Healthcare, Inc and Ryan Leiker. Doc. 1-1 at 1; see also id. at 2 (Pet. ¶¶ 1-3). Plaintiff sued defendants for (1) negligence/survival and (2) wrongful death. Id. at 4-5. She alleges defendants breached their duty to Ms. Dockery by:
Id. at 3-4 (Pet. ¶ 17(a)-(o)).
On December 4, 2020, defendant Big Blue Healthcare, Inc. filed a Notice of Removal (Doc. 1).1 Plaintiff filed a Motion to Remand (Doc. 12) and a corresponding Memorandum in Support (Doc. 13). Defendants filed a joint Response (Doc. 17)2 and plaintiff filed a Reply(Doc. 18). Defendants also submitted three additional filings identifying supplemental authority. Docs. 19, 20, 21. The court has reviewed all filings. See D. Kan. Rule 7.1(f).
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Congress has empowered federal courts to hear certain cases removed from state court. Defendants may remove any state-court, civil action to federal court if the federal court has original jurisdiction over at least one of the plaintiff's claims. 28 U.S.C. § 1441(a); 28 U.S.C. § 1367. But, the court must remand the case to state court if the federal court lacks subject matter jurisdiction over the action. 28 U.S.C. § 1447(c). The "removing party has the burden to demonstrate the appropriateness of removal from state to federal court." Baby C v. Price, 138 F. App'x 81, 83 (10th Cir. 2005). "Thus, doubtful cases must be resolved in favor of remand." Id.
This case, in a nutshell, requires the court to decide whether plaintiff's claims arise under federal law for purposes of federal question jurisdiction. This question requires the court to consider the doctrine of "complete preemeption" and thus determine whether plaintiff's state court allegations fall within the scope of a federal remedial right.
In this case, the relevant remedial right comes from the PREP Act, 42 U.S.C. §§ 247d—d-10. And the scope of that remedial right depends on a few words in the statute, i.e.: "injuries directly caused by the administration or use of a covered countermeasure[.]" 42 U.S.C. § 247d-6e(a). Plaintiff's Motion to Remand thus turns on whether this federal remedy envelops plaintiff's removed state law claims. But before it turns to that question, the court reviews several general rules governing removal of state law claims to federal court.
Congress has granted federal district courts authority to hear certain civil actions brought originally in state court. See 28 U.S.C. § 1441. "Under the removal statute, 'any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant' to federal court." Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004) (quoting 28 U.S.C. § 1441(a)).
"One category of cases of which district courts have original jurisdiction is '[f]ederal question' cases: cases 'arising under the Constitution, laws, or treaties of the United States.'" Id. (quoting 28 U.S.C. § 1331). "Ordinarily, determining whether a particular case arises under federal law turns on the 'well-pleaded complaint' rule." Id. (citation and internal quotation marks omitted). Under this rule, "a suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based on federal law." Devon Energy Prod. Co., L.P. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1202 (10th Cir. 2012) (citations and internal quotation marks omitted).
Typically, a federal defense cannot supply the federal question required by the well-pleaded complaint rule, and thus cannot provide the basis for statutory federal question jurisdiction. Id.; see also Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). So as "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 (2003).
Davila, 542 U.S. at 207 (quoting Anderson, 539 U.S. at 8); see also Christensen v. BNSF Ry. Co., 242 F. Supp. 3d 1186, 1190 (D. Kan. 2017).
The court next explores the "complete preemption" doctrine and considers whether this exception to the well-pleaded complaint rule applies here.
"In Anderson, the Supreme Court held that a state claim may be removed to federal court in only two circumstances: (1) 'when Congress expressly so provides'; or (2) 'when a federal statute wholly displaces the state-law cause of action through complete pre-emption.'" Devon Energy, 693 F.3d at 1205 n.7 (quoting Anderson, 539 U.S. at 8).
Courts often point out that the preemption required to invoke the "complete preemption" doctrine is not merely the "ordinary preemption" that defendants sometimes invoke as a defense to a claim. See Devon Energy, 693 F.3d at 1203 n.4 (citations omitted); see also Christensen, 242 F. Supp. 3d at 1190. In contrast, "'complete preemption' refers to the replacement of a state cause of action with a federal one." Schmeling v. NORDAM, 97 F.3d 1336, 1342 (10th Cir. 1996). It is "quite rare." Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013) (citation and internal quotation marks omitted); see also Devon Energy, 693 F.3d at 1205 ().
"'When the federal statute completely pre-empts ...
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