Nemeth v. Montefiore

• Decision Date: 03 October 2022
• Docket Number: 1:21-cv-02064,1:21-cv-02066
• Parties: THOMAS NEMETH, Plaintiff, v. MONTEFIORE, et al., Defendants. THOMAS NEMETH, Plaintiff, v. MONTEFIORE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

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THOMAS NEMETH, Plaintiff, v. MONTEFIORE, et al., Defendants.

THOMAS NEMETH, Plaintiff, v. MONTEFIORE, et al., Defendants.

Nos. 1:21-cv-02064; 1:21-cv-02066

United States District Court, N.D. Ohio, Eastern Division

October 3, 2022

JUDGE JOHN ADAMS

AMENDED MEMORANDUM OPINION AND ORDER^[1]

CHARLES E. FLEMING U.S. DISTRICT COURT JUDGE

Before the Court is Plaintiff's Motion for Leave to file Motion to Remand Instanter and Motion for Remand (ECF No 16)^[2] and Defendants Montefiore, the Montefiore Foundation, The Montefiore Home, The Montefiore Housing Corporation, and The Menorah Park Foundation's (the “Facility Defendants”) Motion for Leave to File a Sur-Reply Instanter (ECF No. 21). The Facility Defendants and Defendant Ariel Hyman oppose remand, arguing that federal question and/or federal officer-based jurisdiction exists over Plaintiff's claims, and that this matter was properly removed to federal court (ECF Nos. 18 & 19).^[3] For the reasons discussed below, the Court GRANTS Plaintiff's Motion to Remand for lack of jurisdiction. The Court also GRANTS Plaintiff's Motion for Leave to File Motion to Remand Instanter and Defendants' Motion for Leave to File Sur-Reply Instanter.

I. FACTUAL BACKGROUND

On September 24, 2021, Plaintiff Thomas Nemeth, in his capacity as Executor of the Estate of Anthony Berardinelli (“Plaintiff”), filed a Complaint for medical malpractice, nursing home neglect, and wrongful death against Defendants in the Cuyahoga County Court of Common Pleas.^[4](ECF No. 1-1, Complaint). The Complaint alleges that Defendants negligently, recklessly, and/or willfully and wantonly failed to adopt and/or utilize responsible testing, reporting, quarantine, and containment procedures in response to the global COVID-19 pandemic, resulting in Anthony Berardinelli's (“Decedent”) untimely death. (Id. at PageID# 10-11, ¶¶ 13-17). Specifically, Plaintiff alleges:

• “Defendants acted with reckless disregard for the consequences to Decedent and other residents with regard to covid 19 quarantine procedures, covid 19 containment procedures, and covid 19 procedures such that Decedent contracted Covid as a direct result and so as to affect the life or health of Decedent and other residents and this was with intentional misconduct and willful or wanton misconduct.” (Id. at PageID# 10, ¶ 13).

• “Defendants, once Decedent contracted covid 19, were negligent and breached the standard of care in caring for Decedent in that Decedent exhibited signs and symptoms requiring emergency hospitalization and treatment, referral to a doctor and oxygen and Defendants failed to provide emergency hospitalization and treatment, referral to a doctor and oxygen and this was a breach of the normal standard of care.” (Id.).

• “Moreover, [Defendants] were negligently, recklessly, and with malicious intent conducting improper testing and falsifying tests.” (Id. at PageID# 11, ¶ 16).

• “[Defendants] intentionally hid the fact that other patients and/or residents of Montefiore had SARS-COV2 and/or any other form of covid-19 or covid-19 related illness. This was not limited to the well published and admitted false testing by Defendants but went on prior to it being well published and admitted to by Defendants and directly affected Decedent.” (Id.).

• “Defendants did not properly quarantine new admissions and/or new residents when they arrived at their facilities.” (Id. At ¶ 17).

• “Defendants did not follow well established guidelines and standards for quarantine of new admissions and/or residents.” (Id.).

• “Defendants did not follow basic infection prevention procedures such as washing hands and wearing masks.” (Id.).

• “In addition to intentionally falsifying covid tests on residents Defendants also purposefully, willfully, and recklessly did not properly test their employees that would come into contact with residents such as Decedent. Moreover, [Defendants] forced employees to work that had symptoms of covid-19.” (Id.).

• “All Defendants failed to provide safe medical, diagnostic, and preventative care to Plaintiff's Decedent.” (Id. at PageID# 12, ¶ 19).

Defendants timely removed the action on November 1, 2021.^[5] Defendants base removal on the presence of a federal question, arguing that the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 2476d(d), 247d-6e (the “PREP Act” or “Act”), supplies an exclusive federal cause of action for willful misconduct claims against “covered persons” in the administration of “covered countermeasures”-here, nursing home personnel administering COVID-19 diagnostic tests-and expressly preempts state law. (ECF No. 1, Notice of Removal, PageID# 2).

Plaintiff filed his Motion to Remand on December 9, 2021, accompanied by a Motion for Leave Instanter. (ECF No. 16). Plaintiff argues that this Court is without jurisdiction because the Complaint does not mention or make any claims under the PREP Act, and because the PREP Act does not completely preempt state law. (Id.). Defendants oppose remand, asserting that Plaintiff's claims relating to Defendants' “willful misconduct” when administering COVID-19 tests to nursing home residents clearly fall within the scope of the PREP Act, which completely preempts state law and provides the United States District Court for the District of Columbia with exclusive jurisdiction over Plaintiff's claims. (ECF No. 18, PageID# 151-61). Alternatively, Defendants argue that jurisdiction may also be conferred under the federal officer removal statute, 28 U.S.C. 1442(a)(1), because Defendants were acting under the Centers for Medicare & Medicaid Services' constantly evolving directives while providing an essential service on the government's behalf to Medicare and Medicaid recipients. (Id. at PageID# 161-62). In addition to these arguments, Plaintiff's Reply Brief and the Facility Defendants' Sur-Reply Brief argue the merits of a recently decided case in this District, Singer v. Montefiore, 577 F.Supp.3d 633 (N.D. Ohio 2021), which remanded seven consolidated cases concerning the same claims against the same Defendants for lack of federal court jurisdiction. (ECF Nos. 20 & 21).

II. LAW AND ANALYSIS

a. MOTIONS FOR LEAVE

i. Plaintiff's Motion for Leave to File Motion to Remand Instanter

As an initial matter, Plaintiff's Motion to Remand was accompanied by a Motion for Leave Instanter because the Motion to Remand was not filed within 30 days of removal as required by 28 U.S.C. 1447(c). Section 1447(c) states, in pertinent part:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

Plaintiff's Motion for Leave explains that his Motion to Remand was not filed within 30 days because of confusion at the state-court level concerning multiple plaintiffs filing multiple, similar actions, and discussions with Defendants concerning possible consolidation of those matters. (ECF No. 16, PageID# 73). Defendants have not expressly opposed Plaintiff's request for leave, having instead argued only the merits of removal and remand. Given the lack of opposition, Plaintiff's stated reasons for seeking leave, and Plaintiff's challenge to this Court's jurisdiction within his Motion to Remand, Plaintiff's Motion for Leave to File Motion to Remand Instanter is hereby GRANTED.

ii. Defendants' Motion for Leave to File Sur-Reply Instanter

The Facility Defendants also sought leave to file a Sur-Reply Instanter (ECF No. 21), explaining that a case discussed in Plaintiff's Reply Brief, Singer v. Montefiore, 577 F.Supp.3d 633 (N.D. Ohio 2021), had not been published when Defendants initially opposed remand. While the Court generally does not prefer the filing of sur-reply briefs, the publication of a new case within the Northern District of Ohio that is directly relevant to this case justifies this Court's exercise of discretion to grant leave. See Key v. Shelby Cty., 551 Fed.Appx. 262, 264 (6th Cir. 2014). As such, the Facility Defendants' Motion for Leave to File Sur-Reply Instanter is hereby GRANTED.

b. MOTION FOR REMAND

A defendant may remove any civil action brought in state court “of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). If a federal court determines that it lacks subject matter jurisdiction, however, the court must remand the case. 28 U.S.C. § 1447(c). The party removing a case bears the burden of establishing jurisdiction. Nowicki-Hockey v. Bank of Am., N.A., 595 Fed.Appx. 420, 421 (6th Cir. 2014) (citing Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006)). Because removal jurisdiction implicates federalism concerns, removal statutes are strictly construed and “all doubts should be resolved against removal.” Mayes v. City of Flint, 871 F.3d 437, 442 (6th Cir. 2017) (quoting Harnden v. Jayco, Inc., 496 F.3d 579, 581 (6th Cir. 2007)).

i. The PREP Act

The PREP Act goes into effect when the Department of Health and Human Services Secretary declares a public health emergency. 42 U.S.C. § 247d-6d(b). The Act provides that covered persons “shall be immune from suit and liability under Federal and State law” for “all claims for loss caused by, arising out of, relating to, or resulting from” the “administration” or “use” of a “covered countermeasure.” 42 U.S.C. § 247d-6d(a)(1). In other words, “there must be a ‘causal relationship' between an injury and the ‘administration to or use by an individual of a covered countermeasure.'” Mitchell v. Advances HCS, LLC, 28 F.4th 580, 586 (5th Cir. 2022) (quoting 42 U.S.C. § 247d-6d(a)(2)(B))....