Moore v. Covenant Living W.

• Decision Date: 21 February 2023
• Docket Number: 1:21-cv-01393 JLT SKO
• Parties: JOHN MOORE, Plaintiff, v. COVENANT LIVING WEST dba Brandel Manor, Defendant.
• Court: U.S. District Court — Eastern District of California

JOHN MOORE, Plaintiff, v. COVENANT LIVING WEST dba Brandel Manor, Defendant.

No. 1:21-cv-01393 JLT SKO

United States District Court, E.D. California

February 21, 2023

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

(DOC. 7)

John Moore alleges Covenant Living West dba Brandel Manor, a nursing home, neglected and deliberately disregarded the health and safety of his father, Brandel resident and decedent Richard Moore. (See generally Doc. 1-1.) Individually and as heir and successor-in-interest to Mr Moore, Plaintiff filed state law claims for elder abuse negligence, and wrongful death against Defendant. (See id.) Defendant removed the case to this U.S. District Court, asserting the Court has subject matter jurisdiction under federal question jurisdiction, 28 U.S.C. § 1331 and federal officer removal jurisdiction, 28 U.S.C. § 1442(a)(1). (Doc. 1.) Defendant specifically contends that Plaintiff's cause of action is preempted by the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d and 247d-6e (2006). (Id.) Before the Court is Plaintiff's motion to remand the action to state court for lack of subject matter jurisdiction. (Doc. 7.) The Court finds the matter suitable for decision without oral argument pursuant to Local Rule 230(g) and General Order 618. For the reasons set forth below, Plaintiff's motion is GRANTED.

I. Background and Procedural History

Decedent Richard Moore was a full-time resident of Brandel Manor, a skilled nursing facility in Turlock, California, who passed away due to health complications after being diagnosed with the COVID-19 virus. (See Doc. 1-1 at ¶¶ 19, 24, 28.) According to Plaintiff, Mr. Moore was an 87-year-old male with medical comorbidities including muscle weakness, insomnia, anemia, heart disease, cellulitis, hyperlipidemia, osteoarthritis, unsteadiness, exhaustion, and a history of other diseases of the circulatory system. (Id. at ¶ 23.) Mr. Moore's condition limited his mobility, put him at a higher risk for contracting communicable diseases, and made him fully dependent on Defendant for activities of daily living. (Id.) Plaintiff alleges Defendant knew of Mr. Moore's “compromised physical state” and resulting dependency. (Id. at ¶ 22.) On or about July 21, 2020, Mr. Moore's family was informed he had tested positive for COVID-19 but was asymptomatic. (Id. at ¶ 24.) Two weeks later, Mr. Moore “began to have trouble breathing, was not eating or drinking, and was eventually found unresponsive.” (Id. at ¶ 25.) He was transferred to Emanuel Medical Center for further evaluation and treatment. (Id.) Unfortunately, Mr. Moore's condition continued to decline, and he passed away on August 21, 2020. (Id. at ¶ 26.)

In knowing violation of state and federal regulations, Plaintiff alleges Defendant failed to (1) implement effective infection control policies; (2) adequately train its staff with relation to infection control; and (3) provide for Mr. Moore's safety and care, all of which caused “catastrophic damage.” (See Doc. 1-1 at ¶¶ 29, 31-32, 34-35.) Based upon these allegations, Plaintiff filed three causes of action against Defendant in Stanislaus County Superior Court: (1) neglect under California's Elder Abuse and Dependent Adult Civil Protection Act, Cal. Welf. & Inst. Code §§ 15600 et seq.; (2) negligence; and (3) wrongful death. (Id. at ¶¶ 38-59.) On September 16, 2021, Defendant removed the action to this Court, asserting, inter alia, that all state law causes of action are preempted by the PREP Act. (See Doc. 1.) Plaintiff filed a motion to remand on September 27, 2021, asserting the Court lacks subject matter jurisdiction. (Doc. 7.) Defendant opposes the motion. (Doc. 11.)

As early as November 2021, the Court informed the parties of a pending Ninth Circuit case, Saldana v. Glenhaven Healthcare LLC, No. 20-56194, the resolution of which could impact their respective positions as to the pending motion to remand. (See Docs. 14, 15, 19, 22, 25.) Specifically, on December 15, 2021, the Court stayed the matter pending resolution of Saldana, and ordered the parties, within fourteen days following the entry of the mandate by the Ninth Circuit, to file either a stipulation regarding the lifting of the stay and setting forth appropriate deadlines or a joint status report indicating their positions on further proceedings. (Doc. 15.) The mandate issued in Saldana on April 26, 2022, but the parties failed to abide by the Court's deadline. Accordingly, the Court entered a minute order ordering the parties to show cause why the case should not be remanded in light of Saldana. (Doc. 19.) A subsequent set of filings indicated Defendant's preference to continue the stay during the Saldana petition process with the United States Supreme Court. (See Docs. 20, 24.) The Court found it appropriate to stay the matter until the Supreme Court denied the petition for writ of certiorari or ruled on the merits of the case. (Doc. 25.) Notwithstanding the Supreme Court's subsequent denial, Defendant maintained its position that removal was proper. (See Doc. 27.)^[1] On January 24, 2023, the Court informed the parties that the pending motions were no longer to be held in abeyance and would be taken under submission on the papers. (Doc. 28.)

II. Motions to Remand

Section 1441(a) of Title 28 provides that a defendant may remove from state court any action “of which the district courts of the United States have original jurisdiction.” The vast majority of lawsuits “arise under the law that creates the cause of action.” Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (Holmes, J.); Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808 (1986). Federal courts “shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. However, “a case may [also] arise under federal law ‘where the vindication of a right under state law necessarily turn[s] on some construction of federal law,'” Merrell Dow, 478 U.S. at 808 (quoting Franchise Tax Bd. v. Const. Laborers Vac. Trust, 463 U.S. 1, 9 (1983) (emphasis added)), but “only [if] ... the plaintiff's right to relief necessarily depends on a substantial question of federal law,” Franchise Tax Bd., 463 U.S. at 28 (emphases added).

“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009); Marin General Hosp. v. Modesto Empire Traction Co., 581 F.3d 941, 944 (9th Cir. 2009); Hall v. N. Am. Van Lines, Inc, 476 F.3d 683, 687 (9th Cir. 2007). The well-pleaded complaint rule makes plaintiff the “master of the claim.” Caterpillar, 482 U.S. at 392. Thus, where a plaintiff can state claims under both federal and state law, he can prevent removal by ignoring the federal claim and alleging only state law claims. Rains v. Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996); c.f. Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (“the district court had subject matter jurisdiction if at least one of [the plaintiff's] claims was completely preempted by the [federal statute]”). As the “proper procedure for challenging removal,” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009), a motion to remand must be granted if a complaint asserts only state-law claims and presents no federal question on its face. See 28 U.S.C. § 1447(c); Caterpillar, 482 U.S. at 392. The removal statute is strictly construed against removal and the defendant bears the burden of establishing grounds for removal. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32 (2002); Nevada v. Bank of America Corp., 672 F.3d 661, 667 (9th Cir. 2012); Fossen v. Blue Cross & Blue Shield of Montana, Inc., 660 F.3d 1102, 1107 (9th Cir. 2011); Hunter, 582 F.3d at 1042 (citations omitted).

III. Discussion and Analysis

Defendant contends removal to federal court was proper for three reasons: (1) the PREP Act completely preempts Plaintiff's state law claims; (2) the claims present a “substantial” and “embedded” question of federal law; and (3) federal officer removal jurisdiction applies. (See Docs. 1, 7.) Since the filing of Defendant's motion to remand, however, the Ninth Circuit expressly rejected each of these grounds for removal. Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir.), cert. denied, 143 S.Ct. 444 (2022). Numerous post-Saldana district courts within this Circuit have further reinforced the binding effect of its holdings. See, e.g., Martin v. Filart, 2022 WL 576012 (9th Cir. Feb. 25, 2022); Stenson v. Lodi Skilled Nursing Servs. Inc., 2022 WL 1625072 (E.D. Cal. May 23, 2022); Constantine v. Trestles LLC, 2022 WL 5249280 (E.D. Cal. Oct. 6, 2022); Shumlai v. Glad Invs., Inc., 2022 WL 17632616 (E.D. Cal. Dec. 13, 2022); Martinez v. Novato Healthcare Ctr., LLC, 2022 WL 2981825, at *1 (N.D. Cal. July 28, 2022); Est. of Acebes v. Residences at Royal Bellingham Inc., 2022 WL 16855564, at *2 (C.D. Cal. Nov. 9, 2022) (collecting cases); Branch v. Lilac Holdings, LLC, 2022 WL 1184358 (S.D. Cal. Apr. 21, 2022); Uzzanti v. Kelsar Inc., 2022 WL 1521306, at *4 (D. Ariz. Apr. 11, 2022), appeal dismissed, 2022 WL 16844710 (9th Cir. Sept. 20, 2022).

In Saldana, the heirs and successors of a nursing home decedent who succumbed to the effects of COVID-19 filed state law claims for elder abuse, willful misconduct, custodial negligence, and wrongful death against the nursing home. 27 F.4th at 683. The case was removed to federal court and...