Opinion
CASE NO. 1:21-cv-2083
2022-07-11
Margaret FRIEDMAN, Executor of the Estate of Mary L. Friedman, Plaintiff, v. MONTEFIORE, et al., Defendants.
John P. Colan, Sr., Thomas D. Robenalt, Robenalt Law, Westlake, OH, for Plaintiff. Aric D. Martin, Rolf Goffman Martin Lang, Pepper Pike, OH, Joseph F. Petros, III, Rolf Goffman Martin Lang, Cleveland, OH, for Defendants Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation. Matthew D. Gurbach, Bricker & Eckler, Cleveland, OH, Sommer L. Sheely, Bricker & Eckler, Columbus, OH, for Defendant Ariel Hyman.
John P. Colan, Sr., Thomas D. Robenalt, Robenalt Law, Westlake, OH, for Plaintiff.
Aric D. Martin, Rolf Goffman Martin Lang, Pepper Pike, OH, Joseph F. Petros, III, Rolf Goffman Martin Lang, Cleveland, OH, for Defendants Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation.
Matthew D. Gurbach, Bricker & Eckler, Cleveland, OH, Sommer L. Sheely, Bricker & Eckler, Columbus, OH, for Defendant Ariel Hyman.
ORDER OF REMAND
SARA LIOI, UNITED STATES DISTRICT JUDGE
Plaintiff Margaret Friedman ("Friedman") brought this wrongful death action on October 27, 2021 in state court against defendants Montefiore, Montefiore Foundation, Montefiore Home, Montefiore Housing Corporation, Menorah Park Foundation (collectively "facility defendants"), and Ariel S. Hyman ("Hyman"), in connection with the death of Mary L. Friedman (the "decedent"). (Doc. No. 1-1 (Complaint) ¶ 1.) On November 3, 2021, facility defendants removed this action to federal court. (Doc. No. 1 (Notice of Removal).)
Now before the Court is Friedman's motion to remand this action to the Cuyahoga County Court of Common Pleas. (Doc. No. 14 (Motion).) Defendants oppose the motion. (Doc. No. 17 (Facility Defendants’ Memorandum in Opposition); Doc. No. 18 (Hyman's Memorandum in Opposition).) For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
From February 24, 2020 until her death on November 30, 2020, the decedent was a resident of Montefiore, a nursing home located in Beachwood, Ohio. (Doc. No. 1-1 ¶¶ 1–2, 15.) Hyman was employed as an administrator for Montefiore. (Id. ¶ 7.) While at Montefiore, the decedent contracted SARS-COV2 and/or COVID-19 or a COVID-19 related illness and died on November 30, 2020. (Id. ¶ 18.)
On October 27, 2021, Friedman, the daughter and executor of the estate of the decedent, filed this action in state court. While the complaint is not arranged by claims, Friedman appears to be raising state law claims for medical malpractice, nursing home neglect, survivorship, and wrongful death. (Id. ¶ 1.) According to the complaint, defendants "negligently, recklessly, and with malicious intent" improperly implemented and administered prevention measures that resulted in the unnecessary exposure of residents (including the decedent) without their knowledge, to the COVID-19 virus. (Id. ¶ 16.) Friedman alleges that defendants showed "a lack of care so great that it [represented] a conscious indifference to the rights of others and gross negligence." (Id. ) She further avers that defendants demonstrated such a "reckless disregard" for the life and health of their residents that their actions constituted "intentional misconduct or willful or wanton misconduct." (Id. ) It is her belief that defendants’ gross negligence resulted in decedent contracting COVID-19 and thereafter receiving improper medical treatment, and caused decedent to suffer injuries including but not limited to her "untimely death." (Id. ¶ 30.)
In particular, Friedman charges that defendants did not properly quarantine new admissions and residents upon their arrival, did not follow well-established guidelines and standards for quarantine of new admissions and residents, and did not follow basic infection prevention procedures, such as wearing masks and washing hands. (Id. ¶ 17.) As is pertinent to the present motion, Friedman also alleges that defendants deliberately falsified the results of the testing of residents for COVID-19, hiding the fact that other residents of Montefiore had tested positive for the virus. (Id. ¶ 16.) "In addition to intentionally falsifying covid tests on residents[,]" she avers that defendants did not properly test their employees who would come into contact with residents and forced employees to work when they exhibited symptoms of COVID-19. (Id. ¶¶ 16–17.)
Facility defendants removed this action, under 28 U.S.C. § 1441(a), on the basis of original jurisdiction on the belief that the complaint asserted a claim " ‘arising under’ and governed by federal law within the meaning of 28 U.S.C. § 1331." (Doc. No. 1 ¶ 4.) Noting that Friedman claimed that defendants engaged in "willful misconduct" in the care rendered to the decedent in relation to her exposure, diagnosis, and treatment of COVID-19, facility defendants insisted that the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d6d(d), 247d-6e (the "PREP Act") provides the exclusive federal remedy for such conduct and has preempted any state law challenging similar conduct. (Id. ¶¶ 5–9.) Accordingly, the notice of removal provided that removal was appropriate because the complaint invoked a federal question for which the governing federal law "completely preempts" any state law claims. (Id. ¶ 10.)
In her motion, Friedman contends that the well pleaded complaint sets forth facts and allegations that are limited to state law negligence, recklessness, and/or wanton misconduct. She posits that none of the claims are covered by the PREP Act, but, even if one or more claim did implicate the federal statute, it would constitute no more than a federal defense and, therefore, would be insufficient to confer federal question jurisdiction over the complaint. She also argues that removal cannot be premised on the existence of a substantial federal question or the federal officer removal statute.
II. STANDARDS OF REVIEW AND GOVERNING LAW
A. Removal
Under 28 U.S.C. § 1441(a), defendants may remove a civil action from a state court only when the federal court has original jurisdiction over the claims alleged in the state court complaint. That is, any civil case filed in state court may be removed to federal court if the case could have been brought originally in federal court. 28 U.S.C. § 1441(a) ; Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). Absent jurisdiction based upon diversity of citizenship ( 28 U.S.C. § 1332 ), federal question jurisdiction under 28 U.S.C. § 1331 is required. Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425.
"The party seeking removal bears the burden of demonstrating that the district court has original jurisdiction." Eastman v. Marine Mech. Corp. , 438 F.3d 544, 549 (6th Cir. 2006) (citations omitted). Federal courts are courts of limited jurisdiction and possess only the power authorized by the United States Constitution or by statutes. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994). " ‘[B]ecause lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts resolved in favor of remand.’ " Eastman , 438 F.3d at 549–50 (quoting Brown v. Francis , 75 F.3d 860, 864–65 (3d Cir. 1996) (further citation omitted)).
Here, defendants do not contend that the Court has original jurisdiction under 28 U.S.C. § 1332, so the Court's jurisdiction over this matter must be based upon 28 U.S.C. § 1331. Federal question jurisdiction exists in "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. An action "arises under" federal law if: (1) "federal law creates the cause of action[,]" or (2) "the vindication of a right under state law necessarily turn[s] on some construction of federal law." Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 808–09, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr. , 463 U.S. 1, 9, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983) ).
B. The Well-Pleaded Complaint Rule
The presence or absence of federal-question jurisdiction is generally 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. The rule makes the plaintiff the master of her claims, and she may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar , 482 U.S. at 392, 107 S.Ct. 2425 (internal citation omitted). "Accordingly, if the plaintiff chooses to bring a state law claim, that claim cannot generally be ‘recharacterized’ as a federal claim for the purposes of removal." Roddy v. Grand Trunk W. R.R. Inc. , 395 F.3d 318, 322 (6th Cir. 2005) (quoting Loftis v. United Parcel Serv., Inc. , 342 F.3d 509, 515 (6th Cir. 2003) ).
The "mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow , 478 U.S. at 813, 106 S.Ct. 3229. Further, "the existence of a federal defense normally does not create statutory ‘arising under’ jurisdiction, and a defendant may not [generally] remove a cause to federal court unless the plaintiff's complaint establishes that the case ‘arises under’ federal law[.]" Aetna Health Inc. v. Davila , 542 U.S. 200, 207, 124 S. Ct. 2488, 159 L. Ed. 2d 312 (2004) (internal citations and quotation marks omitted, alteration and emphasis in original); see also Tisdale v. United Ass'n of Journeymen & Apprentices of Plumbing & Pipefitting Indus. of U.S. & Canada, Local 704 , 25 F.3d 1308, 1313 (6th Cir. 1994) (defensive assertion of federal statute "does not raise a federal question for removal purposes").
C. Complete Preemption
Facility defendants premised their removal on an exception to the well-pleaded complaint rule known as complete preemption. Where a federal statute completely preempts a state-law cause of action, a federal court may exercise jurisdiction on removal notwithstanding the well-pleaded complaint rule. Beneficial Nat'l Bank v. Anderson , 539 U.S. 1, 8, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003). In such circumstances, Congress so completely preempts a particular area that any claim asserted necessarily has a federal character. Metropolitan Life Ins. v. Taylor , 481 U.S. 58, 63–64, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987). Complete preemption for purposes of removal is extraordinary, and the Supreme Court has found it in only in three statutes—the Labor Management Relations Act, the Employee Retirement Income Security Act, and the National Bank Act. Roddy , 395 F.3d at 323 (citing Beneficial Nat'l Bank , 539 U.S. at 6–7, 123 S.Ct. 2058.) In those instances, the federal statute provides the exclusive cause of action, and sets forth procedures and remedies governing it. Id. (citing Beneficial Nat'l Bank , 539 U.S. at 8, 123 S.Ct. 2058.) " ‘Once an area of state law has been completely preempted, any claim purportedly based on that pre-empted state-law claim is considered, from its inception, a federal claim, and therefore arises under federal law.’ " Rivet v. Regions Bank of La. , 522 U.S. 470, 476, 118 S. Ct. 921, 139 L.Ed.2d 912 (1998) (quoting Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425 ).
Complete preemption that supports removal differs from ordinary federal preemption. Warner v. Ford Motor Co. , 46 F.3d 531, 535 (6th Cir. 1995) (en banc). A defendant may prove that a federal statute preempts the plaintiff's claims, but that will not support removal without more. Caterpillar , 482 U.S. at 398, 107 S.Ct. 2425. To support removal, a statute must " ‘occupy the regulatory field with respect to a particular subject and to create a superseding cause of action.’ " Roddy , 395 F.3d at 323 (quoting Warner , 46 F.3d at 535 ). Moreover, the Sixth Circuit has noted that Congress must "inten[d] to transfer jurisdiction to federal courts[.]" Peters v. Lincoln Elec. Co. , 285 F.3d 456, 468 n.11 (6th Cir. 2002). For this reason, complete preemption represents a "narrow exception" to the well-pleaded complaint rule. AmSouth Bank v. Dale , 386 F.3d 763, 776 (6th Cir. 2004).
D. The PREP Act
It is defendants’ position that the PREP Act completely preempts Friedman's state law claims premised on willful misconduct. The PREP Act empowers the Secretary of the Department of Health and Human Services ("Secretary") " ‘to deem an event a ‘public health emergency’ and then take action to utilize funds established by the Treasury to manage the emergency.’ " Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC , 535 F. Supp. 3d 709, 715 (M.D. Tenn. 2021) (quoting Sherod v. Comprehensive Healthcare Mgmt. Servs., LLC , No. 20-cv-1198, 2020 WL 6140474, at *6 (W.D. Pa. Oct. 16, 2020) (citing 42 U.S.C. § 247d(a) ); see also 42 U.S.C. § 247d(b)(1) ). "If the Secretary determines that a public health emergency exists, ‘the Secretary may make a declaration ... recommending ... the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures’ to combat the emergency." Id. (citing 42 U.S.C. § 247 -6d(b)(1)) (alterations in original). In March 2020, the Secretary used his power under the PREP Act to declare " ‘the spread of SARS-CoV-2 or a virus mutating therefrom and the resulting disease, COVID-19’ [to be] a ‘public health emergency’ under the PREP Act." Id. (citing 85 Fed. Reg. 15198 (Mar. 17, 2020) ).
To date, the Secretary's original declaration has been amended numerous times. See Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 21,012 -02, 2020 WL 1864985 (Apr. 15, 2020) ("First Amended Declaration"); Second Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 35,100 -01, 2020 WL 3050467 (June 8, 2020) ("Second Amended Declaration"); Third Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 52,136 -01, 2020 WL 4922421 (Aug. 24, 2020) ("Third Amended Declaration"); Fourth Amendment to the Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 and Republication of the Declaration, 85 Fed. Reg. 79,190 -01, 2020 WL 7227356 (Dec. 9, 2020) ("Fourth Amended Declaration"); Fifth Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 86 Fed. Reg. 7,872 -02, 2021 WL 325438 (Feb. 2, 2021) ("Fifth Amended Declaration").
"Covered countermeasures" are defined as qualified pandemic or epidemic products, drugs and biological products authorized for emergency use, security countermeasures, and respiratory protective devices. See 42 U.S.C. § 247d-6d(i)(1). Under the PREP Act, a "covered person," which includes individuals as well as private and public entities,
See 42 U.S.C. §§ 247d-6d(i)(2) and (i)(5).
shall be immune from suit and liability under Federal and State law with respect to 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 if a declaration under subsection (b) has been issued with respect to such countermeasure.
This immunity provision is at the core of the PREP Act. When the PREP Act applies to covered losses (including death and injury) sustained as a result of a covered person's use of "covered countermeasures," the "Covered Countermeasure Process Fund" ("Fund") provides the exclusive remedy available to the injured individual through an administrative process administered by the Secretary; "[n]o court of the United States, or of any State, shall have subject matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary" with respect to the Fund. See 42 U.S.C. §§ 247d-6e(a), (b)(1), (b)(5)(C). Compensation for injuries sustained as a result of actions that come within the purview of the PREP Act are exclusive of any other civil action or proceeding for any such claims and the PREP Act includes a provision expressly preempting state laws that conflict with its terms. 42 U.S.C. §§ 247d-6e(d)(4) and 247d-6d(b)(8). See also Dupervil v. Alliance Health Operations, LLC , 516 F. Supp. 3d 238, 248 (E.D.N.Y. 2021).
"During the effective period of a declaration [by the Secretary], or at any time with respect to conduct undertaken in accordance with such declaration, no State or political subdivision of a State may establish, enforce, or continue in effect with respect to a covered countermeasure any provision of law or legal requirement that—
(A) is different from, or is in conflict with, any requirement applicable under this section; and
(B) relates to the design, development, clinical testing or investigation, formulation, manufacture, distribution, sale, donation, purchase, marketing, promotion, packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the prescribing, dispensing, or administration by qualified persons of the covered countermeasure, or to any matter included in a requirement applicable to the covered countermeasure under this section or any other provision of this chapter, or under the [FDCA]."
The only exception to the PREP Act's immunity provision and prohibition on judicial review are covered claims where "death or serious physical injury" is caused by "willful misconduct." 42 U.S.C. § 247d-6d(d)(1). But even in the case of willful misconduct claims, the plaintiff must first exhaust administrative remedies and then may file her action only in the United States District Court for the District of Columbia where she must prove her claim by clear and convincing evidence. See 42 U.S.C. §§ 247d-6d(c)(3), 247d-6d(e)(1), 247d-6e(d)(1) and (5). Bolton , 535 F. Supp. 3d at 720 (" ‘Even with PREP Act claims involving ‘willful misconduct,’ which may be brought exclusively in the United States District Court for the District of Columbia, the plaintiff must first exhaust administrative remedies, and may elect to accept compensation from the Process Fund instead of filing suit in federal court. 42 U.S.C. §§ 247d-6e(d)(1), 247d-6e(d)(5) ; see also 42 U.S.C. §§ 247d-6d(d)(1), 247d-6d(e)(1).’ ") (quoting Dupervil , 516 F. Supp. 3d at 251 ). Additionally, such claims must still involve the "administration" or "use" of a "covered countermeasure." See Singer v. Montefiore , 577 F.Supp.3d 633, 640 (N.D. Ohio 2021) ("Put another way, the path to the [willful misconduct] exception in subsection (d) of the statute runs through subsection (a), which requires ["the administration" or "use" of] covered countermeasures.").
III. DISCUSSION
A. Hudak and Negligence Claims
This Court recently had reason to consider the preemptive effect of the PREP Act. In Hudak v. Elmcroft of Sagamore Hills, et al. , 566 F.Supp.3d 771 (N.D. Ohio 2021), the Court was faced with a similar action wherein the plaintiff executor sought to recover damages resulting from a COVID-19 related death in a nursing home. (Doc. No. 14-1 ( Hudak Decision).) The complaint, filed in state court, raised multiple claims sounding in negligence. The defendants removed the action, relying on the PREP Act, and the plaintiff moved to remand. The Court granted the motion, finding that the PREP Act does not completely preempt state law. (Id. at 12. ) Specifically, the Court observed that the PREP Act does not provide any federal cause of action for claims sounding in negligence, let alone an exclusive federal cause of action, such that it could be considered to have occupied the entire regulatory field. (Id. at 13–15.) "Accordingly, after conducting its own review," the Court joined its "sister district courts within the Sixth Circuit, and district courts around the country in concluding that the PREP Act is not a complete preemption statute with respect to covered claims subject to immunity[.]" (Id. at 15–16 (collecting cases, footnotes omitted).)
Page number references are to the page numbers assigned to each individual document by the Court's electronic filing system, a practice recently adopted by the Court.
The Court also ruled that the plaintiff's state law negligence claims did not raise a substantial federal question—the second exception to the well-pleaded complaint rule—wherein " ‘the vindication of a right under state law necessarily turn[s] on some construction of federal law.’ " Mikulski v. Centerior Energy Corp. , 501 F.3d 555, 560 (6th Cir. 2007) (quoting Franchise Tax Bd., 463 U.S. at 9, 103 S.Ct. 2841 ). In reaching this conclusion, the Court observed that "[n]one of plaintiff's claims [were] premised upon the PREP Act, nor [was] any component of the PREP Act an element of her claims." (Doc. No. 14-1 at 25.) Here, defendants do not suggest that a substantial federal question supplies this Court with jurisdiction.
Since the Court last visited the issue, district courts have consistently ruled that the PREP Act does not completely preempt state law negligence claims arising out of nursing home deaths associated with COVID-19 and the global health crisis. See, e.g., Burris v. Montefiore , No. 1:21-cv-2143, 2022 WL 1120374, at *3 (N.D. Ohio Apr. 14, 2022) ; Estate of Spring by Spring v. Montefiore Home , No. 1:21-cv-298, 2022 WL 1120381, at *3 (N.D. Ohio Apr. 14, 2022) ; Massamore v. RBRC, Inc. , No. 5:21-cv-66, 595 F.Supp.3d 594, 599–601 (W.D. Ky. Mar. 31, 2022) ; Crupi v. Heights of Summerlin, LLC , No. 2:21-cv-954, 2022 WL 489857, at *5 (D. Nev. Feb. 17, 2022) ; Hansen v. Brandywine Nursing & Rehab. Ctr., Inc. , No. 21-cv-649, 2022 WL 608968, at *2 (D. Del. Jan. 19, 2022) ; Kulhanek v. Penasquitos , No. 21-cv-1917, 2022 WL 126343, at *4 (S.D. Cal. Jan. 13, 2022). At least three circuits have now joined the chorus of federal courts that have rejected the argument advanced by nursing homes across the country that the PREP Act completely preempts state law negligence claims associated with COVID-19 injuries and deaths. See Mitchell v. Advanced HCS, L.L.C. , 28 F.4th 580, 586–87 (5th Cir. 2022) ; Saldana v. Glenhaven Healthcare LLC , 27 F.4th 679, 688 (9th Cir. 2022) ; Maglioli v. Alliance HC Holdings LLC , 16 F.4th 393, 408 (3d Cir. 2021).
B. Maglioli and Willful Misconduct
Defendants accept the conclusion reached by this Court and others that the PREP Act does not completely preempt state law negligence claims. (See Doc. No. 17 at 3–4; Doc. No. 18 at 4–5.) Nevertheless, defendants attempt to draw a distinction between the negligence claims raised in these prior decisions, including Hudak , and the willful misconduct claims asserted by Friedman. (Doc. No. 17 at 5; Doc. No. 18 at 6.) Focusing on Friedman's allegations that defendants deliberately falsified COVID-19 test results of its residents, defendants argue that the PREP Act "completely preempts state law for purposes of those claims and justifies removal to federal court." (Doc. No. 17 at 3; Doc. No. 18 at 4.)
In support of the argument that Friedman's allegations of willful misconduct supply the Court with jurisdiction over this action, defendants rely primarily on the Third Circuit's decision in Maglioli, supra. There, residents of two nursing homes brought wrongful death claims on allegations that the defendants failed to take adequate precautions to prevent exposure to COVID-19. Although the court observed that the negligence-based wrongful death claims before it did not satisfy the standard for removal based on complete preemption, it recognized that "Congress carved out a narrow exception ‘for an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct.’ " Maglioli, 16 F.4th at 409 (quoting 42 U.S.C. § 247d-6d(d)(1) ). Because it provided an exclusive cause of action and set forth procedures and remedies for such causes of action, the court added (in dicta) that "[t]he PREP Act's language easily satisfies the standard for complete preemption of particular causes of action." Id.
Defendants argue that the complaint raises the particular type of cause of action that is completely preempted by the PREP Act. According to defendants, Friedman's "claims in this case are the prime example of the small subset of claims for which the PREP Act does completely preempt state law. [Friedman] expressly alleges willful misconduct in the use and/or administration of covered countermeasures (i.e. , COVID-19 diagnostic tests), and therefore the PREP Act provides the exclusive federal cause of action for those claims." (Doc. No. 17 at 5; Doc. No. 18 at 6.) Further, because the PREP Act gives exclusive federal jurisdiction over qualifying willful misconduct claims to the D.C. District Court, defendants insist that "the proper remedy is to transfer the case to that court." (Doc. No. 17 at 24; Doc. No. 18 at 25.) For several reasons, the Court cannot agree.
Defendants acknowledge that another district court in this judicial district rejected a similar argument based on Maglioli , underscoring that the asserted claims "must relate to covered measures before the PREP Act's complete preemption will permit removal." Singer v. Montefiore , 577 F.Supp.3d 633, 643 (N.D. Ohio 2021). Because the record was devoid of evidence that the COVID-19 testing materials qualified as "covered countermeasures" under the PREP Act, the court held that it "need not determine whether the balance of the Act's statutory prerequisites apply." Id. While believing that is "abundantly clear that COVID-19 diagnostic tests are ‘covered measures’ [under the PREP Act][,]" defendants offer the declaration of Richard Schwalberg, former Chief Operating Officer for defendants Menorah Park and the Montefiore Home, attesting to the fact that the tests used by defendants were authorized for emergency use by the Food and Drug Administration. (Doc. No. 17 at 9 n.1; Doc. No. 18 at 12 n.1; see Doc. No. 17-1 (Declaration of Richard Schwalberg).) Because the Court finds that the complaint allegations do not set forth a claim of willful conduct under the PREP Act, it need not consider whether the COVID-19 tests used by defendants qualify as "covered countermeasures" under the PREP Act.
First, even the willful misconduct allegations in the complaint do not fall within the narrow exception carved out of the immunity provision of the PREP Act for an exclusive federal remedy. The PREP Act defines willful misconduct as "an act or omission that is taken intentionally to achieve a wrongful purpose; knowingly without factual or legal justification; and in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit." 42 U.S.C. § 247d-6d(c)(1)(A) (cleaned up). The Act provides that this definition "shall be construed as establishing a standard for liability that is more stringent than a standard of negligence in any form or recklessness." § 247d-6d(c)(1)(B). Based on this statutory definition, courts have recognized that "[a] claim for willful misconduct under the PREP Act has several elements. [A] plaintiff must show (1) ‘an act or omission,’ that is taken (2) ‘intentionally to achieve a wrongful purpose,’ (3) ‘knowingly without legal or factual justification,’ and (4) ‘in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.’ " Maglioli , 16 F.4th at 410 (quoting § 247d-6d(c)(1)(A) ).
To determine whether a complaint sets forth a claim of "willful misconduct" under the PREP Act, the court in Maglioli directed lower courts to "look beyond" the labels attached to a plaintiff's claims and ask whether the plaintiff's "allegations fall within the scope of the PREP Act's cause of action—that is whether the claims could have been brought under that section." Id. at 411 (quotation marks and citations omitted, emphasis in original). There, the Third Circuit found that the plaintiffs’ allegations failed to raise a claim of willful conduct under the Act because they did not allege that the nursing homes acted "intentionally to achieve a wrongful purpose[,]" or "knowingly without legal or factual justification." Id. (quoting § 247d-6d(c)(1)(A) ). Even the plaintiffs’ request for punitive damages failed to bring the complaint within the purview of the PREP Act, as plaintiffs merely employed standard negligence language—alleging conduct that was "grossly reckless, willful, and wanton"—in its prayer for such relief. Id.
Even courts that have considered complaints that included a claim for willful misconduct have failed to find that the allegations met the stringent standard for willfulness under the PREP Act. See Kulhanek , 2022 WL 126343, at *3 (noting that "alleging a claim for willful misconduct by itself is insufficient" to bring claim within the " ‘narrow’ form of willful misconduct provided for under the PREP Act") (citing Maglioli , 16 F.4th at 410, 412 ); Hansen , 2022 WL 608968, at *2 (noting that, even though the cause of action was titled "willful and wanton misconduct," "without specific allegations of wrongful purpose, that bare characterization does not state a claim for willful misconduct within the bounds of the [PREP] Act").
Here, while the complaint alleges that defendants "intentionally hid the fact that other patients and/or residents" had tested positive for the virus, and this resulted in residents being unknowingly exposed, the complaint does not allege that defendants did this "to achieve a wrongful purpose." (See Doc. No. 1-1 ¶ 16.) The complaint allegations also fall short because nowhere in the complaint does Friedman aver that defendants acted "knowingly without legal or factual justification." § 247d-6d(c)(1)(A)(ii). Rather, with respect to Friedman's allegations that defendants falsified COVID-19 test results, the complaint provides that these actions were committed "negligently, recklessly, and with malicious intent[.]" (Doc. No. 1-1 ¶ 16.) It further describes these actions as showing "a lack of care so great that it is a conscious indifference to the rights of others and gross negligence." (Id. ) While these are serious allegations, to be sure, they do not rise above the level of negligence or recklessness under state law. See, e.g., Gonzalez v. CF Watsonville West, LLC , No. 21-cv-9769, 2022 WL 227159, at *2 (N.D. Cal. Jan. 26, 2022) (finding allegations of recklessness did not fall within the PREP Act's willful misconduct provision); Hereford v. Broomall Operating Co. LP , 575 F.Supp.3d 558, 562 (E.D. Pa. 2021) (stating that, even though plaintiffs referred to knowing disregard and reckless disregard of various consequences that created recklessly high risk to patients, "I do not see where any of the Plaintiffs have pleaded that Broomall acted ‘knowingly without legal or factual justification’ and with an intent ‘to achieve a wrongful purpose’ "). The fact that the complaint alleged that this "reckless disregard for the consequences" amounted to "intentional misconduct or willful or wanton misconduct" does not bring this claim "within the bounds of the [PREP] Act." Hansen , 2022 WL 608968, at *2. More fundamentally, the allegations fail to demonstrate that the decedent's injuries were "caused by, arose out of, related to, or resulted from" the "administration" or "use" of the identified "covered countermeasures." See 42 U.S.C. §§ 247d-6d(a), 247d-6d(d). On this note, defendants argue that "[t]here can be no doubt on the face of [p]laintiff's [c]omplaint that her claims relate to the alleged falsification and improper administration of COVID-19 diagnostic tests[,]" which they claim are covered countermeasures under the PREP Act. (Doc. No. 17 at 13; Doc. No. 18 at 14.) But " ‘the plain language of the PREP Act does not [cover] the administration of covered countermeasures generally. ’ " Crupi , 2022 WL 489857, at *6 (quoting Ramirez v. Windsor Care Ctr. Nat'l City , No. 21-cv-1051, 2022 WL 392899, at *4 (S.D. Cal. Feb. 9, 2022) (emphasis added by the court in Crupi )). Instead, the asserted injuries or death must be connected to the administration or use of a covered countermeasure. Id.
As one court in this judicial district recently observed, allegations that a nursing home falsified COVID-19 test results "is not the ‘administration’ or ‘use’ of a covered countermeasure." Rosen v. Montefiore , Nos. 1:21-cv-02108, 1:21-cv-2142, 582 F.Supp.3d 553, 561 (N.D. Ohio Jan. 31, 2022). Based on a complaint with similar factual allegations against the same defendants, the court in Rosen noted that the plaintiffs did not allege that defendants improperly administered the COVID-19 tests. Rather, they alleged that defendants "falsified results after diagnostic tests had been administered[,]" which the Court concluded did not fall within the immunity protection afforded by the Act. Id. Similarly here, Friedman merely alleges that defendants "hid the fact that" the testing they performed demonstrated that "other patients and/or residents" had tested positive for the virus. (Doc. No. 1-1 ¶ 16.) Friedman has not alleged that the administration of the COVID-19 test, itself, resulted in the decedent's injuries or death; rather, it is what defendants allegedly did (or did not do) with the results from tests on other residents, that proximately caused her injuries. Because Friedman does not allege that the administration or use of a COVID-19 test caused the decedent's injuries and resulted in her death, she has not set forth a claim under the PREP Act.
Second, even if Friedman's allegations fell within the PREP Act's narrow exception for exclusive federal jurisdiction (which the Court finds they do not), the Court would still conclude that this is not one of the "rare" cases in which complete federal preemption applies. See Miller v. Bruenger , 949 F.3d 986, 994 (6th Cir. 2020) ("Complete preemption arises in the rare circumstance where Congress legislates an entire field of law.") (citing Roddy , 395 F.3d at 323 ). Defendants’ entire argument for complete preemption is premised on their belief that one of Friedman's claims—willful conduct relating to the reporting of COVID-19 test results—is preempted by federal law. "But finding that one claim may be preempted is different than finding that the federal statutory scheme is so comprehensive that it entirely supplants state law causes of action, such as [Friedman's] other causes of action [sounding in medical malpractice, nursing home neglect, survivorship], negligence, and wrongful death." Saldana , 27 F.4th at 688 (quotation marks and citation omitted, emphasis in original); see, e.g., Crupi , 2022 WL 489857, at *5 (noting that defendants failed to demonstrate complete preemption under the PREP Act because defendants "do not illustrate how Plaintiff could have brought her state law negligence claims under it"); see also Caterpillar , 482 U.S. at 393, 107 S.Ct. 2425 (distinguishing between complete preemption and raising a federal defense). There is no question that the vast majority of the allegations in the complaint relate to non-intentional conduct and omissions that allegedly resulted in decedent contracting and ultimately dying from COVID-19; conduct and omissions that courts have consistently held raise state law claims that are not preempted by the PREP Act.
Third, numerous courts have held that the PREP Act is not a complete preemption statute, even as it relates to qualifying willful misconduct. As this Court previously observed in Hudak ,
Because any covered claim involving willful misconduct first requires administrative exhaustion and then "shall be filed and maintained only in the United States District Court for the District of Columbia[,]" the PREP Act does not afford federal courts original and exclusive jurisdiction over such claims and, therefore, is not a complete preemption statute even with respect to willful misconduct claims. See Estate of Cowan, 530 F.Supp.3d at 702 ("The only exclusive federal cause of action afforded by the PREP Act involves claims for willful misconduct, and even those claims require administrative exhaustion. See 42 U.S.C. §§ 247d-6d(d)(1), 247d-6d(e). Simply put, there is no federal cause of action conferring the federal courts with original exclusive jurisdiction over these claims."); Stone v. Long Beach Healthcare Ctr., LLC , No. 21-cv-326, 2021 WL 1163572, at *6 n.4 (C.D. Cal. Mar. 26, 2021) ("[T]o the extent Plaintiff's claims are based on willful misconduct (and assuming any of those claims actually fall within the scope of the PREP Act), the Court would, in any event, be barred from exercising jurisdiction over those claims because such an action shall be filed and maintained only in the United States District Court for the District of Columbia. See 42 U.S.C. § 247d-6d(e)(1).").
(Doc. No. 14-1 at 17–18.)
For all of these reasons, the Court concludes that defendants have not met their burden to overcome the strong presumption against removal because they have not demonstrated that the PREP Act completely preempts Friedman's claims.
C. Federal Officer Removal Statute
Defendants alternatively argue that this action is removable under the federal officer removal statute. (Doc. No. 17 at 25–26; Doc. No. 18 at 26–27.) Under 28 U.S.C. § 1442(a)(1), an action commenced in state court may be removed to federal court when it is "against or directed to ... [t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office...." The "basic purpose" of the statute "is to protect the Federal Government from the interference with its operations that would ensue were a State able, for example, to arrest and bring to trial in a State court for an alleged offense against the law of the State, officers and agents of the Federal Government acting ... within the scope of their authority." Watson v. Philip Morris Cos., Inc. , 551 U.S. 142, 150, 127 S. Ct. 2301, 168 L. Ed. 2d 42 (2007) (quotation marks, citation, and other alterations omitted).
To remove under this statute, the removing defendant must: (1) be a person within the meaning of the statute who acted under the United States, its agencies, or its officers; (2) who is sued for or relating to any act under color of his office; and (3) the defendant must raise a colorable federal defense to the claims. 28 U.S.C. § 1442(a) ; Bennett v. MIS Corp. , 607 F.3d 1076, 1085 (6th Cir. 2010) (citations omitted). Private parties may remove under the federal officer removal statute, if they can demonstrate they meet these three requirements. Watson , 551 U.S. at 150, 127 S.Ct. 2301.
Defendants argue without support that, "[a]s operators and employees of a nursing home participating in the Medicare and Medicaid program, [they] were ‘acting under’ federal authority in responding to the COVID-19 pandemic." (Doc. No. 17 at 25–26; Doc. No. 18 at 26–27.) While they suggest that nursing homes have always enjoyed a "special relationship" with the federal government with respect to their mission, they insist that this "has been especially true in the context of the COVID-19 public health emergency[.]" (Doc. No. 17 at 25; Doc. No. 18 at 26) According to defendants, during the pandemic, nursing homes have essentially become "extensions of CMS [Centers for Medicare & Medicaid Services]" and "relied upon constantly changing directives from CMS to prevent the spread of the disease." (Doc. No. 17 at 26; Doc. No. 18 at 27.) "As health-care providers on the front lines," defendants posit that they were "providing a public service in combating COVID-19 that the federal government could not provide on its own." (Doc. No. 17 at 26; Doc. No. 18 at 27.)
The phrase "acting under," as it appears in 28 U.S.C. § 1442(a)(1), is entitled to liberal construction, even though this liberal treatment is not without limits. Watson , 551 U.S. at 147, 127 S.Ct. 2301 (citations omitted). "But complying with federal laws and regulations does not amount to ‘acting under’ a federal officer, even for a private party whose ‘activities are highly supervised and monitored’ under detailed regulations." See Singer , 577 F.Supp.3d at 644 (quoting Watson , 551 U.S. at 153, 127 S.Ct. 2301 ). To fall within the protections of the statute, then, the private citizen's actions must "involve an effort to assist , or to help carry out , the duties or tasks of the federal superior." Watson , 551 U.S. at 152, 127 S.Ct. 2301 (emphasis in original).
Defendants claim that they were required to comply with constantly changing federal regulations during the course of the pandemic. As numerous courts have already concluded, this is not enough to invoke federal officer removal. Kulhanek , 2022 WL 126343, at *5 ("Like Defendant[’s] other arguments for the propriety of its removal, this argument [that the federal officer removal statute supports removal] has been consistently rejected by courts considering claims against assisted living facilities based on their actions during the COVID-19 pandemic.") (quotation marks and citation omitted, collecting cases); see also Maglioli , 16 F.4th at 404 ("Merely complying with federal laws and regulations is not ‘acting under’ a federal officer for purposes of federal-officer removal") (citation omitted). While defendants insist that they have been asked to partner with the CMS to battle COVID-19, they claim they have done so by attempting to limit the spread in their facilities through careful adherence to regulations and guidelines. They have, therefore, fallen short of showing that they were acting under a federal officer. See Saldana , 27 F.4th at 684–86 (argument that nursing homes had been asked to "join in the fight" against COVID-19 by receiving and adhering to "additional regulations and recommendations from federal agencies" during the pandemic did not demonstrate that "it was conscripted to assist a federal officer or agency in performance of a government duty or that it was authorized to act for a federal officer"); see, e.g., Rosen , 582 F.Supp.3d at 562 (while nursing homes alleged that they became extensions of CMS, "[a]t most, the nursing home and its employees complied with regulations and orders promulgated by CMS during the pandemic"); Singer , 577 F.Supp.3d at 644 (the "special relationship" between the CMS and nursing homes during the pandemic did not warrant a finding that nursing homes and their administrators were acting "under a federal officer within the meaning of Section 1442(a)(1)"). Removal cannot be supported by § 1442(a).
IV. CONCLUSION
Defendants have failed to establish that the Court has subject matter jurisdiction over the action and that removal was proper. Accordingly, the motion to remand is GRANTED. This case is remanded to the Cuyahoga County Court of Common Pleas.
IT IS SO ORDERED .