Opinion
No. CV-21-08087-PCT-SMB
05-10-2021
Alycia Thomas, Plaintiff, v. Watson Woods Healthcare Incorporated, et al., Defendants.
ORDER
Pending before the Court is Defendants' Notice of Removal. (Doc. 1.) Defendants' assert this is one of those narrow categories of cases in which a Plaintiff's complaint allows removal under federal question jurisdiction, 28 U.S.C. §§ 1331, 1441, even while admitting that federal claims are not apparent on the face of the well-pled complaint. See Hornish v. King Cty., 899 F.3d 680, 688 (9th Cir. 2018) (noting generally "our jurisdictional analysis is limited by the longstanding well-pleaded complaint rule, which provides that a suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law, and which does not permit a finding of jurisdiction predicated on an actual or anticipated defense, or upon an actual or anticipated counterclaim." (internal citations omitted)); accord, Border Infrastructure Envtl. Litig. v. U.S. Dep't of Homeland Sec., 915 F.3d 1213, 1221-22 (9th Cir. 2019).
However, the well-pleaded complaint rule is a rule of inclusion rather than an exclusive and absolute boundary on the Court's jurisdiction. There are certain circumstances where the Court acquires federal jurisdiction even though a plaintiff's claims sound purely in state law. See, e.g., Nevada v. Bank of Am. Corp., 672 F.3d 661, 674 (9th Cir. 2012) ("A state cause of action invokes federal question jurisdiction only if it 'necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.' This type of federal question jurisdiction applies to a "special and small category" of cases." (internal citations omitted)); Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 948-49 (9th Cir. 2014) (noting the doctrine of "complete preemption" can support for removal jurisdiction but cautioning that "its occurrence is 'rare[,]'" and that though the doctrines may overlap even "field preemption [is] not coextensive [with complete preemption.]").
Defendants assert that this case presents one such circumstance, and that removal jurisdiction is allowed here. However, the Court notes Defendants largely and almost exclusively cite to an advisory opinion from the Department of Health and Human Services, ("AO-21"), in making this argument. (Doc. 1 at 9.) Though of course the Court can consider an advisory opinion as persuasive authority, opinions like this one are not accorded Chevron Deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) ("Interpretations such as those in opinion letters -- like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law -- do not warrant Chevron-style deference."); accord, United States v. Mead Corp., 533 U.S. 218, 228 (2001) (noting that while informal agency interpretations may have the power to persuade, they are not granted Chevron deference). Further, the Court notes that materials cited by the Defendant reach a conclusion contrary to that of the vast majority of federal courts that examined the same issue. See, e.g., Winn v. Cal. Post Acute LLC, No. CV 21-02854 PA (MARx), 2021 U.S. Dist. LEXIS 67760, at *7-15 (C.D. Cal. Apr. 6, 2021) (finding the PREP Act did not allow for removal jurisdiction under theories of complete preemption, federal question, or federal officer removal); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326-JFW(PVCx), 2021 U.S. Dist. LEXIS 58410, at *18 (C.D. Cal. Mar. 26, 2021) (finding the PREP Act's immunity provisions did not support removal); Estate of Judith Joy Jones v. St. Jude Operating Co., No. 3:20-cv-01088-SB, 2021 U.S. Dist. LEXIS 43876, at *22 (D. Or. Feb. 16, 2021) (finding AO-21 unpersuasive and the PREP Act did not create removal jurisdiction); Lyons v. Cucumber Holdings, LLC, No. CV 20-10571-JFW(JPRx), 2021 U.S. Dist. LEXIS 20838, at (C.D. Cal. Feb. 3, 2021); Parker v. St. Jude Operating Co., LLC, No. 3:20-cv-01325-HZ, 2020 U.S. Dist. LEXIS 249253, at *15 (D. Or. Dec. 27, 2020) ("[I]n addition to providing immunity, the PREP Act only supplies a limited cause of action for willful misconduct. This narrow path is not a substitute for Plaintiff's state law negligence claims and does not warrant a finding that the limited exception of complete preemption applies to the PREP Act."); accord Estate of Winfred Cowan v. Lp Columbia Ky, No. 1:20-CV-00118-GNS, 2021 U.S. Dist. LEXIS 61708 (W.D. Ky. Mar. 30, 2021); Wright v. Encompass Health Rehab. Hosp. of Columbia, Inc., Civil Action No. 3:20-02636-MGL, 2021 U.S. Dist. LEXIS 59610 (D.S.C. Mar. 29, 2021); Dupervil v. All. Health Operations, LLC, No. 20-CV-4042 (PKC) (PK), 2021 U.S. Dist. LEXIS 20257 (E.D.N.Y. Feb. 2, 2021); Shapnik v. Hebrew Home for the Aged at Riverdale, No. 20-cv-6774 (LJL), 2021 U.S. Dist. LEXIS 79447 (S.D.N.Y. Apr. 26, 2021); but see Garcia v. Welltower OpCo Grp. LLC, No. SACV 20-02250JVS(KESx), 2021 U.S. Dist. LEXIS 25738, at *26 (C.D. Cal. Feb. 10, 2021) (denying a motion to remand and holding "the PREP Act provides for complete preemption.") Defendants do not address or distinguish any of these cases in their notice of removal.
In light of the above, the Court does not believe that Defendants' recited authority meets their burden to show that the Court has subject matter jurisdiction over this case. A more comprehensive and wholistic briefing on the issue of subject matter jurisdiction, one which addresses the contrary caselaw, is required before the Court will allow the case to move forward.
Accordingly,
IT IS ORDERED that Defendants show cause in writing within seven (7) days of the date of this order why this case should not be remanded in light of the numerous cases rejecting their jurisdictional basis. Defendants' briefing shall not exceed five (5) pages.
IT IS FURTHER ORDERED that Plaintiff may file a brief response to Defendants' memorandum no later than three (3) days after the Defendant's filing. Plaintiff's response shall not exceed four (4) pages.
IT IS FURTHER ORDERED that if Defendants fail to show cause in writing within seven (7) days of the date of this Order, this case will be remanded without further notice.
Dated this 10th day of May, 2021.
/s/_________
Honorable Susan M. Brnovich
United States District Judge