Shankle v. Heights of Summerlin, LLC

• Decision Date: 01 December 2021
• Docket Number: Case No.: 2:21-cv-01316-JAD-BNW
• Citation: 574 F.Supp.3d 820
• Parties: Kashif SHANKLE, et al., Plaintiffs v. The HEIGHTS OF SUMMERLIN, LLC, et al., Defendants
• Court: U.S. District Court — District of Nevada

574 F.Supp.3d 820

Kashif SHANKLE, et al., Plaintiffs

v.The HEIGHTS OF SUMMERLIN, LLC, et al., Defendants

Case No.: 2:21-cv-01316-JAD-BNW

United States District Court, D. Nevada.

Signed December 1, 2021

Hunter S. Davidson, Jamie S. Cogburn, Cogburn Law Offices, Henderson, NV, for Plaintiffs.

David Mortensen, Derek Linford, Margaret Courtney Christopher, Messner Reeves LLP, Las Vegas, NV, for Defendants.

Order Granting Motion to Remand and Denying Motions to Dismiss

[ECF Nos. 9, 10, 15]

Jennifer A. Dorsey, United States District Judge

Six plaintiffs—the special administrator of Rita Esparza's estate and her five statutory heirs—filed this action in state court against a nursing home, The Heights of Summerlin, and four other defendants,¹ alleging wrongful death, elder abuse, and various negligence claims following Esparza's death in July 2020.² The defendants removed, theorizing that because this case involves protocols they implemented in response to the COVID-19 pandemic, federal jurisdiction exists under either the Public Readiness and Emergency Preparedness (PREP) Act³ or the federal-officer removal statute.⁴ The plaintiffs move to remand,⁵ and the defendants move to dismiss.⁶ Joining with the vast majority of courts that have considered these issues, I find that neither the PREP Act nor the federal-officer removal statute is a sufficient basis for this court to exercise jurisdiction over this case. So I grant the plaintiffs’ motion to remand, deny as moot the motions to dismiss, and send this case back to state court.

Background⁷

From June 2019 until just before she died in July 2020, 70-year-old Esparza "was an intermittent resident" at The Heights, "where she was supposed to receive 24-hour care and supervision."⁸ As a resident, she suffered from "cardiac disease, hypertension

, diabetes mellitus, kidney disease, osteoarthritis, muscle weakness, and a history of falling," and she also contracted and was hospitalized for COVID-19.⁹ She "struggled to care for herself," so she needed assistance meeting her daily needs, including "hydrating, feeding, dressing, toileting, bathing, transferring, ambulating, and other services necessary to maintain her physical and mental health."¹⁰ The plaintiffs allege that the defendants "failed to provide [Esparza] with basic care;" "failed to implement adequate fall precautions;" "failed to adequately hydrate and nourish" Esparza; "failed to provide [her] with adequate hygiene and care measures;" and "failed to develop and follow proper policies, procedures, and precautions to prevent the transmission and spread of SARS COVID-19."¹¹ Esparza ultimately contracted sepsis and pneumonia and was transported to Summerlin Hospital for treatment on July 17, 2020, where she died about a week later.¹²

The plaintiffs filed their initial complaint in Nevada's Eighth Judicial District Court on June 14, 2021.¹³ It contains exclusively state-law claims including elder abuse; negligence; negligent hiring, training, retention, and supervision; negligence per se; negligent breach of fiduciary duty; wrongful death and survival; negligent misrepresentation; and professional negligence.¹⁴ The defendants removed the case to federal court on July 12, 2021.¹⁵ One week later, three defendants—The Heights, Latoya Davis, and Andrew Reese—moved to dismiss the plaintiffs’ complaint,¹⁶ and the other two—Summit Care and Genesis Healthcare—moved to dismiss shortly thereafter.¹⁷ The plaintiffs move to remand the case back to state court.¹⁸

Discussion

"Federal courts are courts of limited jurisdiction,"¹⁹ and there is a "strong presumption against removal jurisdiction."²⁰ Removal statutes are strictly construed, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance."²¹ The defendant always has the burden of establishing that removal is proper,²² and "[a]n action filed in state court may be removed only if the district court could have exercised jurisdiction over the action if originally filed there."²³ "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."²⁴ "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law."²⁵

I. The PREP Act does not supply federal jurisdiction.

Defendants removed this action to federal court based on federal-question jurisdiction, and they offer two jurisdictional reasons that this case belongs in federal court, the first of which is the PREP Act.²⁶ The PREP Act shields "covered persons" such as pharmacies and drug manufacturers²⁷ from liability "for all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure. "²⁸ It authorizes the Secretary of the U.S. Department of Health and Human Services (HHS) to issue declarations that "a disease or other health condition or other threat to health constitutes a public health emergency."²⁹ "The Act lies dormant until invoked by the Secretary of" HHS,³⁰ who declared the COVID-19 pandemic such an emergency in March 2020.³¹

If a claim is barred because of PREP Act immunity, injured parties are not without a remedy. The Act establishes a compensation fund "for covered injuries directly caused by the administration or use of a covered countermeasure."³²

A. The plaintiffs’ allegations do not implicate the PREP Act.

The plaintiffs contend that this case belongs in state court because their complaint involves entirely state-law claims and the defendants aren't covered persons being sued for covered countermeasures under the PREP Act.³³ The defendants, on the other hand, cast this case as one focused on the insufficiency of their COVID-19 protocols. But the threshold questions are whether the plaintiffs assert the types of claims that implicate the PREP Act or whether the defendants are the types of persons using the types of countermeasures covered in the Act, and the answer to both questions is no.

1. The plaintiffs’ claims don't involve federal law.

In a creative attempt to manufacture federal-court jurisdiction,³⁴ the defendants characterize this dispute as one focusing on a single issue: their COVID-19 protocols. But the plaintiffs scarcely mention COVID-19 in their complaint. They note only that Esparza contracted and recovered from the virus and include the defendants’ lack of COVID-19 protocols as an example of the defendants’ deficiencies in caring for her.³⁵ The defendants maintain that because the plaintiffs allege that the defendants "failed to develop and follow proper COVID-19 procedures, it necessarily implicates the Defendants’ use of PPE and test-kits, and as such, falls under the PREP Act."³⁶ This is an overgeneralization. The PREP Act's purpose is to shield entities from liability stemming from their administration of a covered countermeasure like a vaccine, not to shield them from liability for traditional state-law claims merely because the alleged actions occurred during a public health emergency.³⁷ And traditional state-law claims are what we have here, as plaintiffs’ case is about the defendants’ alleged failure to provide adequate care based on the numerous falls that Esparza experienced and her declining health while at The Heights. Plaintiffs’ brief mention of COVID-19 protocols is insufficient to convert their purely state-law claims into federal ones based on the PREP Act.³⁸

2. The plaintiffs aren't suing over covered countermeasures.

The defendants also contend that the PREP Act supplies federal jurisdiction because they are being sued over covered countermeasures.³⁹ Covered countermeasures are drugs, biological products, and devices that are used in response to a pandemic, such as vaccines and masks.⁴⁰ But the plaintiffs aren't suing over covered countermeasures. They don't allege that the defendants used—or failed to use—a certain drug, device, vaccine, or other countermeasure as defined by the PREP Act. They merely state that defendants failed to develop proper protocols to stop the transmission and spread of COVID-19, as one example of the myriad ways in which they neglected to appropriately care for Esparza. But none of these alleged actions or inactions implicates the defendants’ use of covered countermeasures.

3. The defendants aren't covered persons.

The five defendants are The Heights of Summerlin (a nursing facility), Summit Care (the owner and operator of The Heights), Genesis (the parent company of the first two), Latoya Davis (an administrator of The Heights), and Andrew Reese (another administrator).⁴¹ They insist that they are covered persons under the Act because they "acted within their capacity to respond to the COVID-19 pandemic by administration, allocation, distribution and use, of COVID-19 countermeasures in response to the COVID-19 pandemic" and are therefore "program planners," as defined by HHS.⁴² The plaintiffs respond that the defendants aren't covered persons because they didn't provide countermeasures as covered in the Act.

Under the PREP Act, a covered person is a "person or entity" who manufactures or distributes a covered countermeasure; "a program planner of such countermeasure"; "a qualified person who prescribed, administered, or dispensed such countermeasure"; or "an official, agent, or employee of" a covered person.⁴³ The defendants rely heavily on HHS Advisory Opinion (AO) 21-01⁴⁴ to contend that they should be considered "program planners" and thus entitled to PREP Act immunity. That opinion attempts to clarify the PREP Act's application to COVID-19 cases in nursing facilities and describes a program planner as "someone who is involved in providing or allocating covered countermeasures."⁴⁵ The defendants urge me to find that AO 21-01 is binding and to apply Chevro...