Opinion
CV 23-9923-CBM-JCx
01-23-2024
RAFFI PILILIAN et al., Plaintiffs, v. CVS PHARMACY, INC. et al. Defendants.
ORDER RE: PLAINTIFFS' MOTION TO REMAND AND PLAINTIFFS' MOTION FOR ATTORNEYS' FEES IN MOTION FOR REMAND
CONSUELO B. MARSHALL UNITED STATES DISTRICT JUDGE
The matters before the Court are Plaintiffs' Motion to Remand and Plaintiffs' Motion for Attorney Fees in Motion for Remand. (Dkt. Nos. 15, 17.)
I. BACKGROUND
On September 13, 2023, Plaintiffs filed a complaint in Los Angeles Superior Court (Case. No. 23AHCV02118), asserting four causes of action under state law: (1) negligence; (2) premises liability; (3) negligent infliction of emotional distress; and (4) loss of consortium. (Dkt. No. 1-2.) On November 22, 2023, Defendant Garfield Beach CVS, L.L.C. (“Garfield”), which contends it was erroneously sued as CVS Pharmacy, Inc., removed the action to this federal court based on the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d and 247d-6e (2006) (the “PREP Act”).
II. STATEMENT OF THE LAW
“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Pursuant to 28 U.S.C. § 1331, district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The general rule, referred to as the ‘well-pleaded complaint rule,' is that a civil action arises under federal law for purposes of § 1331 when a federal question appears on the face of the complaint.” City of Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020) (citing Caterpillar, 482 U.S. at 392). However, complete preemption is “an exception to the well-pleaded complaint rule.” Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 686 (9th Cir. 2020) (citing City of Oakland, 969 F.3d at 905). Moreover, an exception to the well-pleaded complaint rule exists for a small category of state law claims which “necessarily raise 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” (hereinafter, the “Grable doctrine”). Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005); see also City of Oakland, 969 F.3d at 904. There is a “strong presumption against removal jurisdiction,” and “the court resolves all ambiguity in favor of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citation omitted). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
III. DISCUSSION
A. Removal
In its notice of removal, Defendant Garfield argued federal question jurisdiction exists because the PREP Act preempts all state claims, and Plaintiffs' state law claims raise substantial federal issues regarding immunity under the PREP Act and thus arise under federal law. The Court finds, consistent with the Ninth Circuit's decisions in Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022), and Martin v. Filart, 2022 WL 576012 (9th Cir. Feb. 25, 2022), that the PREP Act is not a complete preemption statute and therefore cannot be basis for federal subject matter jurisdiction over Plaintiffs' state law claims. The Court further finds the Grable doctrine exception to the well-pleaded complaint rule does not apply to establish federal jurisdiction over Plaintiffs' state law claims because Defendant's potential immunity defense under the PREP Act is not a substantial federal issue necessarily raised by Plaintiffs' state law claims. See Saldana, 27 F.4th at 689. Accordingly, the Court finds Defendant Garfield's removal of Plaintiffs' state law claims based on the PREP Act was improper.
Saldana and Martin were not cited by the parties. On January 12, 2024, the Court ordered the parties to be prepared to address the Ninth Circuit's decisions in Saldana and Martin at the January 16, 2024 hearing on the matters.
See also Hagoubyan v. KF Rinaldi, LLC, 2021 WL 4288524, at *3 (C.D. Cal. Sept. 21, 2021), aff'd sub nom. Hagoubyan by & through Hovsepian v. KF Rinaldi, LLC, 2023 WL 4103939 (9th Cir. June 21 2023); Rae by & through Montisano v. Anza Healthcare Inc., 2021 WL 2290776, at *3 (S.D. Cal. June 4, 2021); Roebuck v. Clinic, 2021 WL 1851414, at *2 (D. Ariz. May 10, 2021); Shapnik v. The Hebrew Home for the Aged at Riverdale, 2021 WL 1614818, at *14 (S.D.N.Y. Apr. 26, 2021); Padilla v. Brookfield Healthcare Ctr., 2021 WL 1549689, at *6 (C.D. Cal. Apr. 19, 2021); Hopman v. Sunrise Villa Culver City, 2021 WL 1529964, at *6 (CD. Cal. Apr. 16, 2021); Perez v. Southeast SNF LLC, 2021 WL 1381232, at *3 (W.D. Tex. Apr. 12, 2021).
B. Costs and Expenses Incurred as a Result of the Removal
“An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Defendant argues it had an objectively reasonable basis for removing this action because “there is no binding precedent on the issues raised by defendant” and “at least one district court has agreed with its view concerning the propriety of removal in this type of case.” However, Defendant failed to identify the district court decision which it contends supports removal of this case based on the PREP Act, and did not cite to the Ninth Circuit's Saldana and Martin decisions which held the PREP Act is not a completely preemptive statute based upon which state law claims may be removed to federal court. Defendant therefore fails to demonstrate it had an objectively reasonable basis for removing this action. Accordingly, the Court finds an award for fees “incurred as a result of the removal” is warranted under 28 U.S.C. § 1447(c). See Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005).
The Court finds the $450 hourly rate for Plaintiffs' counsel with 15 years of experience, and $85 hourly rate for a senior paralegal with over 8 years of experience are reasonable. Based on the “fee grids” prepared by Plaintiffs' counsel (see Suarez Decl. Ex. 1), the Court finds 32.0 hours worked by Plaintiffs' counsel and 0.8 hours worked by the senior paralegal were performed as a result of the removal. Therefore, the Court awards Plaintiffs $14,468.00 in fees incurred as a result of removal pursuant to 28 U.S.C. § 1447(c).
Defendant did not argue fees for paralegal work are not recoverable under 28 U.S.C. § 1447(c). See also Albion Pac. Prop). Res., LLC v. Seligman, 329 F.Supp.2d 1163, 1175 (N.D. Cal. 2004) (“[F]ees for legal assistants may be recovered under section 1447(c).”) (citing Missouri v. Jenkins, 491 U.S. 274, 285 (1989)).
Plaintiffs' counsel filed a declaration as to Plaintiff's counsel's training and experience and the paralegal's experience, and approval of his hourly rate in other matters. (Suarez Decl. ¶¶16-18.)
The Court has reviewed the “Attorney Fee Grid For Rodrigo Suarez” (see Suarez Decl. Ex. 1, attached hereto), and finds based on the description of the work performed that the time for event nos. 2, 11, 12, 13, 14, 15, 16, 21, 2226, 30, 40, 41, 42, 43, 44, 46, 52, 53, 54, 55. 56, 57, 58. 59, 70, were not incurred as a result of the removal, and the remainder of the time entries on the attorney fee grid totaling 32.0 hours were incurred as a result of the removal.
The Court has reviewed the “Paralegal Fee Grid for Janette Allen” (see Suarez Decl. Ex. 1, attached hereto), and finds based on the description of the work performed that the time for event nos. 1, 2 and 3 totaling 0.8 hours were incurred as a result of the removal, and the remainder of the time entries on the paralegal fee grid were not incurred as a result of the removal.
Defendant did not address reasonableness of the hourly rates or hours worked, and therefore waived any arguments re: same. See Zaklit v. Glob. Linguist Sols., LLC, 2014 WL 12521725, at *13 (C.D. Cal. Mar. 24, 2014).
IV. CONCLUSION
Accordingly, the Court GRANTS Plaintiffs' Motion to Remand because it lacks jurisdiction over Plaintiffs' state law claims, and remands this action to state court. Plaintiffs' alternative request to strike portions of the Complaint (Dkt. No. 23) is DENIED AS MOOT
The Court GRANTS Plaintiffs' Motion for Attorneys' Fees, and awards Plaintiffs $14,468.00 in fees pursuant to 28 U.S.C. § 1447(c).
IT IS SO ORDERED.
EXHIBIT - 1
ATTORNEY FEE GRID FOR RODRIGO SUAREZ
#
Date
Event
Time
1.
11-22-23 @13:14
Receive and review ("RR") email Defendant (“D”)'s Ntc of Removal
0.2
2.
11-22-23 @16:29
Performed initial research on Vasovagal Syncope Expert
0.7
3.
11-24-23 @14:03
Reviewed and analyzed (“RA”) Ds Removal packet (148 pgs.)
0.8
4.
11-27-23 @11:44
RR Ds email re Removal
0.1
5.
11-27-23 @12:26
RA Certificate of Service of Removal and amended Removal packet
0.2
6.
11-27-23 @13:06
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 1, Ex. A #2
0.1
7.
11-27-23 @13:19
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 6, Ntc to Parties re ADR
0.1
8.
11-27-23 @13:19
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 5, Ntc of Assignment
0.1
9.
11-27-23 @13:19
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 7, Ntc of Consent re U.S. Magistrate
0.1
10.
11-27-23 @13:19
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 8, Ntc of Deficiencies
0.1
11.
11-27-23 @14:15
RR voicemail from Defense counsel (“DC”) asking for reply
0.1
12.
11-28-23 @09:03
Conference call re Fed Expert
0.2
13.
11-28-23 @10:40
Missed call from DC
0.1
14.
11-28-23 @10:41
RR email from DC re meet and confer re case
0.1
15.
11-28-23 @10:52
RR email from Expert re expert retention
0.1
16.
11-28-23 @10:52
RR invoice from Expert re expert retention
0.1
17.
11-28-23 @15:30
Telephone call (“TC”) with DC re meet and confer re Remand, courtesy stipulation to extend time to answer, and negotiation to conditionally dismiss individual defendants by stipulation
0.2
18.
11-28-23 @15:58
RR email from DC re draft stipulation
0.1
19.
11-28-23 @15:58
RA draft stipulation changes re extension of time and remand
0.4
20.
11-28-23 @16:24
Draft, review, revise, finalize and send email to DC re draft joint stip re extension of time and remand
0.1
21.
11-28-23 @16:25
Look for and locate general draft stip terms to cond dismiss individ defendants
0.1
22.
11-28-23 @16:26
Draft, review, revise, finalize and send email to DC re draft prop stip re cond dismiss indiv def
0.1
23.
11-28-23 @16:44
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 9, re Ds Mtn to extend time to answer
0.1
24.
11-28-23 @18:07
Preliminary research re D's removal authorities
1.6
25.
11-29-23 @16:05
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 11, re Ds Mtn to extend time deficiencies
0.1
26.
11-29-23 @18:05
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 11, re Ds Mtn to Dismiss (“MTD”)'
0.1
27.
11-30-23 @10:56
RR email Court Clerk (“CC”) re Ds Mtn to Extend time
0.1
28.
11-30-23 @11:01
RR email D re Ds Mtn to Extend time
0.1
29.
11-30-23 @11:12
RR email CC re Ds Mtn to Extend time
0.1
30.
11-30-23 @14:38
TC to Expert re suspend work re MTD
0.2
31.
11-30-23 @16:41
RR service cacd_ecfmail@cacd,uscourts.gov transaction Dkt 13, re Ds Withdrawal Mtn to extend time to answer
0.3
32.
12-01-23 @8:34
Reviewed and diagram Notice of Removal (“NR”)
0.8
33.
12-01-23 @17:27
Reviewed and diagram entire Request for Judicial Notice re NR
0.6
34.
12-01-23 @19:14
RA Dkt 6, Ntc to Parties re ADR
0.2
35.
12-01-23 @19:23
RA Dkt 5, Ntc of Assignment
0.1
36.
12-01-23 @19:34
RA Dkt 7, Ntc of Consent re U.S. Magistrate
0.1
37.
12-01-23 @19:36
RA Dkt 8, Ntc of Deficiencies
0.2
12-01-23 @20:03
RA Dkt 9, re Ds Mtn to extend time to answer
0.1
38.
12-01-23 @20:05
RA Dkt 12, re Ds Mtn to extend time deficiencies
0.1
39.
12-01-23 @22:14
RA Court's Standing Orders - notes for JA
0.2
40.
12-02-23 @21:11
RA and begin diagram Dkt 11, re Ds MTD, part 1
1.0
41.
12-03-23 @10:42
Conference call w/ clients re status update
0.3
42.
12-03-23 @12:03
Draft, revise and finalize client authorizations re Mtn for Remand, sanctions, and Oppo MTD
1.1
43.
12-03-23 @14:33
In person meeting with clients re status and authorizations
2.1
44.
12-03-23 @18:52
RA and begin diagram Dkt 11, re Ds MTD, part 2
0.8
45.
12-04-23 @07:34
Research on motion for remand; comprehensive review of national COVID remand cases
2.3
46.
12-04-23 @14:58
Case meeting with JA re gameplan, calendaring, and deadlines
0.9
47.
12-04-23 @17:09
Begin draft of motion for remand
1.9
48.
12-05-23 @06:20
Continue draft of remand and supplemental research
1.4
49.
12-05-23 @13:35
Supplemental research and complete initial draft of remand
2.0
50.
12-06-23 @09:50
Research motion to oppose RJN
0.8
51.
12-06-23 @16:30
Prepare motion in opposition to Ds RJN
1.7
52.
12-06-23 @20:25
Begin draft of Ps opposition to Ds MTD
1.1
53.
12-08-23 @05:15
Review and revise Ps oppo to MTD
1.3
54.
12-08-23 @18:30
Begin draft of Suarez Dec ISO of oppo to MTD
0.8
55.
12-11-23 @18:30
Review and revise Opp to MTD
0.6
56.
12-12-23 @08:50
Review and revise Dec ISO Opp to MTD with exhibits
0.4
57.
12-12-23 @18:35
Finalize Oppo & Dec ISO packet w exhibits against MTD
1.4
58.
12-13-23 @16:11
Filing of Oppo to MTD packet
0.2
59.
12-14-23 @10:25
In person delivery of Oppo to MTD packet in fed court
0.5
60.
12-14-23 @15:42
Review and revise Mtn for Remand
1.0
61.
12-14-23 @20:15
Begin draft of Suarez Dec ISO of Mtn for Remand
0.8
62.
12-15-23 @07:35
Research and prepare motion for attorney fees
1.2
63.
12-15-23 @13:50
Prepare attorney fee grid for RS Mtn for attorney's fees
1.0
64.
12-15-23 @16:45
Review and revise Suarez Dec ISO Mtn for Remand
1.0
65.
12-15-23 @19:30
Review and revise Ps oppo to Ds Removal RJN
0.6
66.
12-15-23 @21:00
Begin draft of Suarez Dec ISO of oppo to RJN
0.4
67.
12-16-23 @09:40
Prepare Suarez Dec re attorney fees
1.2
68.
12-16-23 @13:30
Review, revise and finalize Mtn for Remand
0.8
69.
12-16-23 @16:30
Review, revise and finalize Suarez Dec ISO Mtn forRemand
1.1
70.
12-16-23 @18:15
TC w clients re update
0.2
71.
12-16-23 @18:50
TC w JA re status of motions, Decs, and instructions for 12/18/23
0.1
72.
12-16-23 @21:00
Review, revise and finalize Mtn for Oppo RJN
0.6
73.
12-16-23 @23:05
Review, revise and finalize Suarez Dec ISO Mtn for Oppo RJN
0.6
74.
12-17-23 @10:50
Review, revise and finalize Mtn for Attorneys Fees
0.7
75.
12-17-23 @14:30
Review, revise and finalize Suarez Dec ISO and Attorney fee grid re Mtn for Attorneys Fees
1.8
76.
12-17-23 @17:45
Prepare proposed orders Mtn for Remand + Oppo RJN + Mtn Attorneys fees
1.5
77.
12-17-23 @18:00
TC to JA re finalized docs, instructions, and email
0.1
78.
12-17-23 @21:15
Email to JA w all Mtns docs and Orders re filing
0.2
PARALEGAL FEE GRID FOR JANETTE ALLEN
# Date Event Time 1. 11-22-23 @13:22 Receive and review ("RR") email from RS re Defendant (“D”)'s Ntc of Removal 0.1 2. 11-24-23 @15:11 Create and categorized subfolders re Federal Removal Protocol (“FRP”) 0.3 3. 11-24-23 @16:42 RR, separated and saved (“RRSS”) Ds removal documents 0.4 4. 11-27-23 @08:11 FRP - researched, download, pdf, OCR, and saved current FRCP, and CASD local rules 1.0 5. 11-27-23 @10:32 Calendar fed deadlines, vacated state case deadlines 0.7 6. 11-27-23 @15:00 TC to schedule and calendar federal experts conf call w RS for 11/28/23 0.2 7. 11-27-23 @20:00 RRSS Ds Fed filings of 11-27-23 0.3 8. 11-28-23 @13:15 RRSS fed expert retention - invoice 0.1 9. 11-30-23 @9:05 RRSS fed filings and correspondence 0.2 10. 11-30-23 @15:00 Research, review and modify calendar and reminders re court's Standing Orders 0.5 11. 12-01-23 @08:10 RRSS accounting hold expert invoice 0.2 12. 12-02-23 @07:30 RRSS fed filings and correspondence 0.1 13. 12-04-23 @15:00 Case meeting, calendaring, and deadlines 1.5 14. 12-13-23 @11:30 Reviewed Oppo MTD, created exhibits, pdfd, created Table of contents and table of authorities, spellcheck, and formatted Oppo and Suarez Dec ISO 2.0 15. 12-13-23 @14:30 Draft and sent email to RS re finalized Oppo + Dec re MTD 0.1 14 16. 12-13-23 @15:45 TC w clients re update of oppo filings 0.1 17. 12-13-23 @16:00 Reviewed standing order re filing instructions 0.1 18. 12-13-23 @19:20 Created, printed and sent courtroom courtesy copy for RS dropoff tomorrow 0.2 19. 12-14-23 @12:05 TC w clients re update of oppo filings 0.1 20. 12-15-23 @18:50 TC w RS re motions and instructions for tomorrow 0.1 21. 12-15-23 @19:30 Calendared motions instructions and reminders 0.2 22. 12-16-23 @14:00 TC VM to RS re case and deadlines 0.1 23. 12-16-23 @18:10 TC VM and text to RS re case and deadlines 0.1 24. 12-17-23 @18:00 TC w RS re finalized docs, instructions, and email 0.1 25. 12-17-23 @22:00 Email from RS re instructions for Monday to create TOC, ToA, and formatting 0.1 26. 12-17-23 @22:15 Created calendar reminders and to-do's re RS email 0.1