Martin v. Petersen Health Operations, LLC
| Decision Date | 22 September 2021 |
| Docket Number | 1:20-cv-1449 |
| Court | U.S. District Court — Central District of Illinois |
| Parties | ANITA MARTIN, as Independent Administrator of the Estate of Marlene Hill, deceased, Plaintiff, v. PETERSEN HEALTH OPERATIONS, LLC, an Illinois Limited Liability Corporation d/b/a Bloomington Rehabilitation & Health Care Center, Defendant. |
This matter is before the Court on Plaintiff's Motion to Remand. (Docs. 16, 21).[1] Defendant responded (doc. 19), and Plaintiff replied (doc. 25) with leave from the Court. This matter is ripe for review. For the following reasons Plaintiff's Motion to Remand (docs. 16, 21) is granted and this case is remanded to the Circuit Court of the Eleventh Judicial Circuit of Illinois in McLean County.
This case arose from the death of Plaintiff's mother, Marlene Hill, who died after contracting COVID-19 while living at Defendant's nursing home in Bloomington, Illinois. Plaintiff filed suit in state court against the nursing home asserting claims for gross negligence and willful misconduct under the Illinois Nursing Home Care Act. Defendant removed the case to this Court on the bases of federal question jurisdiction and entitlement to a federal forum as an agent acting under a federal officer. Plaintiff now moves for remand.
The Court finds Plaintiff's well-pleaded Complaint presents no federal question, and Defendant did not act under a federal officer. Thus, Defendant's removal of the case to federal court was inappropriate, and this case is remanded back to state court.
Case Background[2]
Plaintiff is the administrator of her mother's estate. (Complaint Doc. 1-1 ¶ 5). Plaintiff's mother, a resident of Illinois, resided at Bloomington Rehabilitation & Health Care Center (“Bloomington Rehab”), a long-term care facility. (Id. ¶ 7). While living at Bloomington Rehab, Plaintiff's mother contracted COVID-19, which substantially contributed to her death on May 15, 2020. (Id. ¶ 2).
On November 16, 2020, Plaintiff filed this case in the state circuit court in McLean County. (Doc. 1-1). Plaintiff alleges Defendant failed to take precautions to prevent the spread of COVID-19 among its residents, which substantially contributed to the death of Plaintiff's mother. In particular Plaintiff alleges Defendant had too few nurses (id. ¶¶ 85, 137, at 14, 20), made nurses care for too many patients each shift (id. ¶ 138, at 20), and provided insufficient personal protective equipment (“PPE”) to employees (id. ¶¶ 139-143, at 20-21). In addition, Plaintiff alleges Defendant failed to screen all residents for COVID-19 symptoms (id. ¶ 142.d, at 31), monitor her mother's condition (id. ¶¶ 123-125, at 18), or notify Plaintiff or a physician of changes in Plaintiff's mother's condition (id. ¶ 122, at 18). Plaintiff also appears to suggest Bloomington Rehab instructed one or more symptomatic employees to come in to work, but Plaintiff did not include any details supporting this allegation. (Id. ¶¶ 142.e, 156.e, at 31, 45). Plaintiff claims these acts and omissions constitute grossly negligent and willful violations of the Illinois Nursing Home Care Act, 210 ILCS 45/1-101 et seq. (Id. ¶¶ 147, 161, at 33, 48).
On December 29, 2020, Defendant removed the case to this Court. (Notice of Removal, Doc. 1 at 1). Defendant argued removal was proper pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because Defendant was being sued for acts undertaken at the direction of a federal officer. (Doc. 1 at 5, 30). Defendant also argued removal was appropriate under the general removal statute, 28 U.S.C. § 1441, on the basis of federal question jurisdiction, 28 U.S.C. § 1331. Plaintiff now moves for remand. (Docs. 16, 21).
The Court will first assess federal officer removal under § 1442. Second, it will assess general removal under § 1441. The latter is premised solely on federal question jurisdiction, for which Defendant has three arguments: (1) Plaintiff's claims were completely preempted by the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e; (2) Plaintiff's claims necessarily raise a substantial issue of federal law (i.e., an embedded federal question) and (3) Plaintiff artfully pleaded her claims to avoid stating a necessary federal claim.
Defendant alleges it “ ‘act[ed] under' a federal officer for purposes of jurisdiction under 28 U.S.C. § 1442(a)(1) because it was acting at the specific direction of federal authorities to prevent, treat and contain COVID-19 . . . .” (Memorandum in Opposition to Plaintiff's Motion to Remand, Doc. 19 at 9).
The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against him for an “act” made “under color of office” while “acting under” an “agency” or “officer” of “the United States.” 28 U.S.C. § 1442(a)(1).
Baker v. Atl. Richfield Co., 962 F.3d 937, 941 (7th Cir. 2020).
Element one is obviously satisfied here. A company is considered a person under § 1442(a). See Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) ( ).
The dispute here centers on element two: whether Defendant was “acting under” a federal officer or agency. “Acting under” a federal officer requires an effort to “lawfully assist” a federal officer “in the performance of his official duty, ” Davis v. South Carolina, 107 U.S. 597, 600 (1883), and the private party must be “authorized to act with or for [federal officers or agents] in affirmatively executing duties under . . . federal law, ” City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966). “The crux of the inquiry . . . is whether there was a special relationship between the defendant and the federal government, ” Baker, 962 F.3d at 941, “distinct from the usual regulator/regulated relationship.” Watson v. Philip Morris Cos., 551 U.S. 142, 157 (2007). Indicia of such a special relationship include any “delegation of legal authority[, ] . . . any contract, . . . any employer/employee relationship, or any principal/agent arrangement” between the government and a private party. Id. at 156.
Defendant asserts the following:
All actions taken by Bloomington Rehabilitation in preparation for, and response to, the COVID-19 pandemic, were taken ‘in an effort to assist, or help carry out, the duties or tasks' as ordered by the CDC and [Centers for Medicare and Medicaid Services], and [Illinois Department of Public Health] surveyors, and performed pursuant to the direct orders and comprehensive and detailed directives issued by these agencies. Bloomington Rehabilitation was acting at the direction of the federal government to prevent, treat and contain COVID-19 and in its care and treatment of Marlene Hill.
(Doc. 1 ¶¶ 60-61, at 25-26). Notably absent are any indicia of a special relationship with the government. There was no delegation of legal authority, contract, employer/employee relationship, or principal/agent arrangement. Rather, these assertions establish Defendant is merely a highly regulated private entity seeking to comply with federal laws and regulations. They do not demonstrate a special relationship. See Dupervil v. All. Health Operations, LLC, 516 F.Supp.3d 238, 260-61 (E.D.N.Y. 2021), appeal docketed, No. 21-505 (2d Cir. Mar. 3, 2021) (). Being highly regulated is insufficient to render a party an agent of the government, and for good reason:
Defendants' line of reasoning would have very far-reaching consequences. Consider, for example, that during this pandemic many private persons or entities have received federal funds under the CARES act and its Paycheck Protection Program (“PPP”), and may point to their dutiful compliance with CDC guidelines for limiting occupancy, face coverings, and health and sterilization measures. Small and large entities alike, including nonprofits, restaurants, vineyards, construction companies, and religious organizations, have accepted such funding, all while attempting to implement measures to curb the spread of COVID-19. Under Defendants' line of reasoning, all of these entities would be acting under a federal officer for purposes of § 1442(a)(1).
Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F.Supp.3d 518, 535 (D.N.J. 2020) (internal citation omitted).
Section 1442's purpose further illuminates why it excludes Defendant. Its basic purpose is “to protect federal officers from interference by hostile state courts.” See Watson, 551 U.S. at 147 (quoting Willingham v. Morgan, 395 U.S. 402, 405 (1969)). When a company like Defendant merely complies with federal law, there is no...
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