Evon Smith v. Colonial Care Center, Inc.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

Sharon L. Williams (Not Present) Not Reported N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiff: Attorneys Present for Defendant:

Not Present Not Present

Proceedings: (IN CHAMBERS) Order Re: Plaintiff?s Motion to Remand [DE 19]

I. INTRODUCTION

On December 14, 2020, Evon Smith, Dale Chanaiwa, Maurice Jordan, June Smith-Wimes,

Darrel Smith, Gary Smith, and Kennedy Smith (collectively, “Plaintiffs”’) filed a Complaint in Superior

Court for the County of Los Angeles against Colonial Care Center, Inc. (“Colonial Care Center,” or

‘Defendant”).! Plaintiffs are the children of the late Joan Rivers (“Decedent”), who died on July 20,

2020. Colonial Care Center is a nursing home facility in Long Beach California where Decedent resided

toward the end of her life.

Plaintiffs’ Complaint asserts the following thirteen state law causes of action against Defendant:

(1) Elder Abuse; (2) Willful Misconduct; (3) Negligence; (4) Negligence Per Se; (5) Negligent Infliction

of Emotional Distress; (6) Violation of Unfair Competition Law; (7) Misrepresentation/Fraud; (8)

Breach of Contract; (9) Violation of Resident Rights (Health & Saf. Code,§ 1430(b)-Care Issue No. 1);

(10) Violation of Resident Rights (Health & Saf. Code, § 1430(b)-Care Issue No. 2); (11) Violation of

Resident Rights (Health & Saf. Code, § 1430(b)-Care Issue No. 3); (12) Wrongful Death, and; (13)

Survival Action.

On January 19, 2021, Defendant removed this action to federal court, seeking to invoke this

Court’s subject matter jurisdiction on two bases: (1) the complete preemption doctrine, and; (2) the

federal officer removal statute, 28 U.S.C. § 1442(a)(1). (Notice of Removal at 4, 14, ECF No. 1).

Presently before the Court is Plaintiffs’ Motion to Remand this action to the state court from

which it was removed. (“Motion”) (ECF No. 19). For the reasons that follow, the Court finds that

Defendant has failed to establish that this Court may exercise subject matter jurisdiction over Plaintiffs’

1 John Houston and Ronald Smith are named in the Complaint as “nominal defendants” as well

(Compl.4 8, ECF No. 1-1), though Plaintiffs do not assert any claims against the nominal defendants.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

claims. The Court therefore GRANTS Plaintiffs’ Motion and REMANDS this case to the state court

from which it was removed.

Il. FACTUAL BACKGROUND

Plaintiffs allege the following in their Complaint:

Plaintiffs are the sons and daughters of Decedent Joan Rivers. At the time of her death on July

20, 2020, Decedent was 87 years old. She was admitted to Colonial Care Center in Long Beach,

California on April 8, 2020.

At all times during her residency at Colonial Care Center, Decedent had impairments, including

dementia, that required total care. Specifically, Decedent was wholly dependent upon Colonial Care

Center for all activities of daily life, including food and feeding, clothing, laundry, hydration, hygiene,

mobility, medication, and treatment. Decedent was also totally dependent on Colonial Care Center for

nursing care to assess changes in her condition, to report changes in her condition to the attending

physician, and when appropriate, to transfer her to a hospital for medical care.

On January 20, 2020, the first case of coronavirus infection in the United States was

documented. By March 4, 2020, the virus had spread to such an extent and posed such a danger that

California’s Governor declared a state of emergency. On the same day, the Los Angeles County Board

of Supervisors and the Los Angeles County Department of Public Health similarly declared a local and

public health emergency in the County of Los Angeles.

On January 27, 2020, a letter from the California Department of Public Health (“CDPH”) warned

California’s long-term care facilities that COVID-19 was already in California. The CDPH stated:

All California healthcare facilities need to be prepared for new and

emerging infectious disease threats, including the 2019 Novel Coronavirus

(2019-nCoV). [Facilities should outline plans for administrative,

environmental, and communication measures and define the individual

work practices that will be required to detect the introduction of 2019-nCoV

or other emerging infectious diseases, prevent spread, and mitigate the

impact on patients, the facility, and staff.

At the same time that California and Los Angeles County were declaring a state of

emergency, Defendant failed to implement appropriate safety measures to protect its residents and

employees. Defendant knew, or should have known, early on that it had staff and residents who

were both exposed to the virus and who also carried the virus, yet it delayed providing appropriate

nursing care to protect its residents from exposure to COVID-19.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

Shortly after Decedent was admitted to Colonial Care Center on April 8, 2020, Decedent and her

family were told that some of Defendant’s employees had tested positive for COVID-19. In early May

2020, Decedent was tested for COVID-19. On the evening of May 18, 2020, Defendant informed

Plaintiffs that the facility had just received Decedent’s test result and that Decedent had tested positive

for COVID-19. In the week or more that Decedent and her family were awaiting Decedent’s test results,

Decedent continued to share a room with another resident.

Decedent’s family was told on May 18, 2020 that Decedent would be moved to a “COVID

wing” at Colonial Care Center sometime after 11:00 p.m. on May 18, 2020.

However, on May 19, 2020, the next day, Decedent was admitted to St. Mary’s Hospital in Long

Beach. Decedent’s family received word in the early morning hours of May 19, 2020 that Colonial Care

Center had called 911 to transfer Decedent to the hospital because she was having difficulty breathing

and had a low pulse.

At St. Mary’s Hospital, Decedent was placed on a ventilator for four days. She developed

difficulty swallowing (postexhubation dysphagia), a blood infection, a heart valve issue, and was placed

on a feeding tube. When admitted, the hospital advised Decedent’s family that she was also severely

dehydrated, and as a result, had developed a kidney injury.

Decedent was discharged from St. Mary’s Hospital on June 2, 2020, and transferred to The

Earlwood Center, a nursing facility in Torrance, California. Decedent died on July 20, 2020.

Despite Colonial Care Center’s awareness of the virus in its facility and the minor steps that it

took to address the spread, Defendant did not implement an effective policy for isolating proven or

suspected carriers of the coronavirus and protecting its residents from exposure to COVID-19. As a

result, Decedent became infected with COVID-19, and ultimately became severely ill and required

hospitalization.

Ii. JUDICIAL STANDARD

Title 28 U.S.C. § 1441(a) authorizes defendants to remove a case to federal court when the

federal court would have had original jurisdiction over the case. “Upon removal, the district court must

determine whether it has subject matter jurisdiction and, if not, it must remand [to state court].” Dahil v.

Rosenfeld, 316 F.3d 1074, 1076 (9th Cir. 2003); 28 U.S.C. § 1447(c). The federal question removal

statute is strictly construed against a finding of removal jurisdiction. Gaus v. Miles, 980 F.2d 564, 566

(9th Cir. 1992). “If at any time before final judgment it appears that the district court lacks subject

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

matter jurisdiction, the case shall be remanded . . . Federal jurisdiction must be rejected if there is any

doubt as to the right of removal in the first instance.” Jd.

The party seeking removal bears the burden of establishing federal jurisdiction. Va/dez v. Allstate

Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004). Here, Defendants’ first asserted basis for removal is

federal question jurisdiction, which generally requires that a federal claim appear on the face of the

plaintiffs “well-pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); 28 U.S.C. §

1331. Thus, a plaintiff may “generally avoid federal jurisdiction by pleading solely state-law claims.”

Valles v. Ivy Hill Corp., 410 F.3d 1071, 1075 (9th Cir. 2005). Under the complete preemption doctrine,

however, a state law claim is treated as arising under federal law if it is completely preempted by federal

law. Id.: Caterpillar Inc., 482 U.S. at 393.

Defendants’ second asserted basis for removal is federal officer jurisdiction. Under 28 U.S.C.

§ 1442(a)(1), a civil action filed in state court can be removed if the action is against “|t]le 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 or on account of any right, title or authority claimed under any Act of Congress... .” 28 U.S.C.

§ 1442(a)(1).

Iv. DISCUSSION

In their Complaint, Plaintiffs assert thirteen state law claims arising from Defendants’ alleged

mistreatment of Decedent. Four of Plaintiffs’ claims—(1) Elder Abuse, (2) Willful Misconduct, (3)

Wrongful Death, and (4) Survival Action—are premised on allegations of willful misconduct. The Court

refers to these claims as the “Willfulness Claims,” and to Plaintiffs’ other nine claims as the ““Non-

Willfulness Claims.”

Plaintiffs argue that the Court lacks subject jurisdiction over all thirteen of their claims.

Defendants rejoin that: (1) all of Plaintiffs’ claims are completely preempted by the PREP Act, and as

such, that the Court may exercise federal question jurisdiction over the claims, and; (2) alternatively,

that the Court may exercise federal officer jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §

1442(a)(1). The Court addresses each asserted basis of jurisdiction in turn.

A. The Complete Preemption Doctrine Does Not Provide the Court with a Basis to

Exercise Subject Matter Jurisdiction over Plaintiffs’ Claims

For the reasons discussed below, the Court concludes that the PREP Act does not completely

preempt any of Plaintiffs’ state law claims.

1. Plaintiffs’ Claims Do Not Fail Within the Scope of the PREP Act

The PREP Act, by and large, is an immunity statute. The Act generally provides that

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

a covered person 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 [by the Secretary of Health and

Human Services] has been issued with respect to such countermeasure.

42 U.S.C. § 247d-6d(a)(1). In March 2020, the Secretary of Health and Human Services (“the

Secretary”) issued a declaration under the PREP Act regarding the COVID-19 pandemic. 85 Fed. Reg.

15,198 (Mar. 17, 2020). The Declaration has since been amended five times. See Dupervil v. All. □□□□□□

Operations, LCC, No. 20CV4042PKCPK, 2021 WL 355137, at *2 (E.D.N-Y. Feb. 2, 2021).

In the Fourth Declaration, the Secretary declared that “not administering a Covered

Countermeasure to one individual in order to administer it to another individual can constitute ‘relating

to... the administration to . . . an individual’” if the decision to not administer a Covered

Countermeasure was based on “[p]rioritization or purposeful allocation of” limited resources. See Fourth

Amended Declaration, 85 Fed. Reg. at 79,197.

A covered countermeasure is defined by the PREP Act as:

e “a qualified pandemic or epidemic product[;]”

e “asecurity countermeasure[,|” i.e., a “drug,” “biological product,” or “device” that meets

specified qualifications:

e a“drug..., biological product... or device... that is authorized for emergency use in

accordance with section 564, 564A, or 564B of the Federal Food, Drug, and Cosmetic Act

[i.e., FDCA]; or”

e “arespiratory protective device that is approved by the National Institute for Occupational

Safety and Health [i.e., NIOSH], ... and that the Secretary determines to be a priority for

use during a public health emergency declared under section 247d of this title.”

42 U.S.C. § 247d-6d(1)(A)(D).

Here, Plaintiffs do not allege any injury “caused by, arising out of, relating to, or resulting from

the administration to or the use by an individual of a covered countermeasure.” Covered

countermeasures are products, drugs, biological products, or devices that meet specified qualifications.

Id. Plaintiffs’ claims do not relate to the use or administration of any such drug, device, or product.

Rather, Plaintiffs’ allege that Decedent’s injuries were caused by Defendant’s failure to “implement an

effective policy for isolating proven or suspected carriers of the coronavirus, and protecting its residents

from exposure to COVID-19.” (Compl. § 28).

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

In its Opposition, Defendant argues that such allegations “by their very nature relate to the use of

covered countermeasures, and/or the management and operation of Defendant’s countermeasures, for

which Defendant has immunity.” (Def.’s Opp. to Pls.” Mot. to Remand at 7, ECF No. 23). Defendant

further argues that Plaintiffs’ allegations that Defendant “failed to protect decedent’s right to dignity and

privacy by failing to protect her from infection with the Covid-19 virus”, (Compl. { 92), “clearly relate

to the use of PPE and whether Defendant properly utilized a covered countermeasure[,] bringing this

case within the preemption and immunity of the PREP Act.” (Def.’s Opp. to Pls.’ Mot. to Remand at 8).

In support of this argument, Defendant asserts that COVID-19 test kits, “face shields, gowns, shoe

covers, non-surgical isolation gowns, surgical caps, properly labeled non-surgical masks, and certain

non-NIOSH approved respirators” are covered countermeasures.

Assuming that the devices listed by Defendant are in fact covered countermeasures, Defendant

nonetheless fails to establish that Plaintiffs’ claims fall within the scope of the PREP Act because

Plaintiffs do not allege any injury related to the use (or non-use) or administration of any drug, device,

or product. Plaintiffs’ Complaint mentions personal protective equipment (“PPE”), gowns, facemasks,

and respirators a grand total of once each. (See Compl. {J 17-18). Plaintiff mentions these devices by

way of background; Plaintiffs do not allege that Decedent’s injuries relate to the use (or non-use) or

administration of any of the devices. What Plaintiffs do allege is that Decedent’s injuries were caused by

Defendant’s failure to “implement an effective policy for isolating proven or suspected carriers of the

coronavirus, and protecting its residents from exposure to COVID-19.” (Compl. § 28). These allegations

refer to policies and a failure to protect, not to any covered countermeasure, i.e., drug, product, or

device. Thus, the square peg of Plaintiffs’ allegations does not fit into the round hole of the PREP Act’s

definition of a covered countermeasure.

2. Even if Plaintiffs Claims Fell Within the Scope of the PREP Act, They Would Not

Be Completely Preempted

For a federal statute to completely preempt a state law claim, the federal statute must “provide |

the exclusive cause of action for the [state law] claim asserted and also set forth procedures and

remedies governing that cause of action.” See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003);

Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1245 (9th Cir. 2009) (“[A] federal statute must

provide the ‘exclusive cause of action’ for complete pre-emption to apply[.]”); Su//ivan v. Am. Airlines,

Inc., 424 F.3d 267, 276 (2d Cir. 2005) (same); Ry. Lab. Executives Ass'n v. Pittsburgh & Lake Erie R.

Co., 858 F.2d 936, 942 (3d Cir. 1988) (“If the federal statute creates no federal cause of action

vindicating the same interest the plaintiff's state cause of action seeks to vindicate, recharacterization as

a federal claim is not possible and there is no claim arising under federal law to be removed and litigated

in the federal court.”) (footnote omitted).

As discussed in greater depth below, the PREP Act, when it applies, distinguishes between

claims that are premised on allegations of “death or serious physical injury proximately caused by

willful misconduct,” and those that are not. See 42 U.S.C. § 247d-6d(d)(1). The Court therefore

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

considers Defendants’ argument as to complete preemption with respect to Plaintiffs’ Non-Willfulness

Claims before turning to Plaintiffs’ Willfulness Claims.

i. Plaintiffs’ Non-Willfulness Claims Are Not Completely Preempted

In their Notice of Removal and Opposition to Plaintiffs’ Motion, Defendant points to no

exclusive federal cause of action created by the PREP Act that would vindicate the same interests that

Plaintiffs’ state law causes of action seek to vindicate. Instead, Defendant points to the PREP Act’s

Covered Countermeasure Process Fund (“Process Fund”), which Defendant argues imbues the Act with

complete-preemptive force. The Process Fund is administered by the Secretary of the of the Department

of Health and Human Services (“HHS”) and is intended to provide “timely, uniform, and adequate

compensation to eligible individuals for covered injuries directly caused by the administration or use of

a covered countermeasure[.|” 42 U.S.C. § 247d-6e(a). Upon review of Defendant’s argument and the

substance and structure of the PREP Act, the Court determines that Plaintiffs’ claims are not completely

preempted by the Act.

For the reasons discussed above, the Court finds that Plaintiffs’ claims do not fall within the

scope of the PREP Act. However, assuming for the sake of argument that (1) Defendant is a covered

person under the PREP Act, and (2) Plaintiffs’ claims arise out of, relate to, or result from “the

admunistration to or the use by an individual of a” qualifying covered countermeasure, this Court lacks

subject matter jurisdiction over Plaintiffs’ Non-Willfulness Claims.

Fatal to Defendants’ removal of Plaintiffs’ Non-Willfulness Claims is the fact that the PREP Act

does not provide Plaintiffs with an exclusive federal cause of action that covers those claims. Defendant

argues that the PREP Act’s Process Fund provides Plaintiffs with a remedy for their claims. (Def.’s Opp.

to Pls.” Mot. to Remand at 20-21). However, statutory provision of a federal remedy is insufficient to

establish complete preemption if the federal statute does not also provide an exclusive federal cause of

action. Moore-Thomas, 553 F.3d at 1245 (“[A] federal statute must provide the ‘exclusive cause of

action’ for complete pre-emption to apply[.|’’) (citing Sullivan, 424 F.3d 267); see also Dupervil, 2021

WL 355137, at *9 (“Here, the PREP Act does not provide the exclusive cause of action for claims that

fall within its scope; in fact, for the most part, the Act provides no causes of action at all.”’) (citing

Sullivan, 424 F.3d at 276).

Defendant also argues that Plaintiffs’ claims are completely preempted because an Advisory

Opinion issued by HHS’s Office of the General Counsel (“OGC”) on January 8, 2021 opines that “the

PREP Act is a complete preemption statute.” (Def.’s Opp. to Pls.’ Mot. to Remand at 8) (citing Advisory

Opinion 21-01, ECF No. 21-9). The January 8, 2021 Advisory Opinion posits that “the sine gua non of a

statute that completely preempts is that it establishes either a federal cause of action, administrative or

judicial, as the only viable claim or vests exclusive jurisdiction in a federal court. The PREP Act does

both.” (Advisory Opinion at 2). This characterization of the complete preemption doctrine is contrary to

law.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

The Supreme Court has found that the sine gua non of a statute that completely preempts is that

it establishes an “exclusive cause of action for the [state law] claim asserted and also set|s] forth

procedures and remedies governing that cause of action.” Beneficial Nat. Bank, 539 U.S. at 8. The Ninth

Circuit, citing Beneficial National Bank, has affirmed that “‘a federal statute must provide the ‘exclusive

cause of action’ for complete pre-emption to apply[.]” Moore-Thomas, 553 F.3d at 1245. Neither

Defendant nor the January 8, 2021 Advisory Opinion cites any legal support for the “proposition that an

exclusive federal administrative remedy is sufficient for complete preemption.” See Dupervil, 2021 WL

355137, at *10. Though a federal agency’s interpretations of a statute “contained in formats such as

opinion letters are ‘entitled to respect,’” such deference extends only to “those interpretations [that] have

the ‘power to persuade[.]’” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000). Because both the

Supreme Court and the Ninth Circuit have held that a federal statute is completely preemptive only

where it provides an exclusive federal cause of action, the Court finds that the OGC’s January 8, 2021

Advisory Opinion lacks the power to persuade. See Dupervil, 2021 WL 355137, at *10 (holding the

same).

Accordingly, because the PREP Act does not completely preempt Plaintiffs’ Non-Willfulness

Claims, the complete preemption doctrine does not provide the Court with a basis to exercise

jurisdiction over the Non-Willfulness Claims.

ii. Defendant Fails to Establish that the Court May Exercise Jurisdiction

Over Plaintiffs’ Willfulness Claims

As noted above, the PREP Act distinguishes between claims premised on allegations of “death or

serious physical injury proximately caused by willful misconduct,” and those that are not. See 42 U.S.C.

§ 247d-6d(d)(1). Specifically, where a plaintiff's claim falls within the scope of the PREP Act’s

immunity provision, the Act establishes a single “exception to the immunity from suit and liability of

covered persons” by way of “an exclusive Federal cause of action against a covered person for death or

serious physical injury proximately caused by willful misconduct . . . by such covered person.” Jd.

§ 247d-6d(d)(1).

Thus, unlike claims that trigger the PREP Act’s immunity provision and do not involve

allegations of willfulness, Section 247d-6d(d)(1) of the PREP Act provides “an exclusive Federal cause

of action” for claims “against a covered person for death or serious physical injury proximately caused

by willful misconduct . . . by such covered person.” The Act further provides that the only court that

may exercise jurisdiction over such a claim is the United States District Court for the District of

Columbia. Jd. § 247d-6d(e)(1).

Accordingly, a state law claim may be completely preempted by the PREP Act if the claim (1)

falls within the scope of the PREP Act’s immunity provision, and (2) is premised on allegations of death

or serious physical injury proximately caused by willful misconduct by a person covered under the Act.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

Here, assuming that Plaintiffs’ Willfulness Claims fall within the scope of the PREP Act (which

the Court finds they do not), the Court would be barred from exercising jurisdiction over those claims.

Section 247d-6d(e)(1) of the Act, titled “Exclusive Federal jurisdiction,” provides that “[a]ny action

under subsection [247d-6d(d)] shall be filed and maintained only in the United States District Court for

the District of Columbia.” 42 U.S.C. § 247d-6d(e)(1). Thus, even if the complete preemption doctrine

applied to Plaintiffs’ Willfulness Claims, Defendant would be unable to establish that this Court has

jurisdiction over those claims because Congress saw fit to vest sole jurisdiction over claims brought

under 247d-6d(d) in the United States District Court for the District of Columbia.

Accordingly, Defendant fails to establish that this Court may exercise jurisdiction over Plaintiffs’

Willfulness Claims.

3. Whether Transfer of this Action to the United States District Court for the District

of Columbia is Warranted

Though not raised by the parties, the Court notes that the OGC of HHS has suggested that

actions that implicate 42 U.S.C. § 247d-6d(d) should be transferred to the District Court for the District

of Columbia. (See Advisory Opinion at 3) (opining that “if the plaintiff alleges that the decision to deny

him or her [a covered countermeasure] was wanton and willful and resulted in death or serious injury[,]”

the court should transfer the case to “the District Court for the District of Columbia for resolution by a

three-judge panel.”).

A district court that lacks jurisdiction over an action may transfer that action to an appropriate

forum pursuant to 28 U.S.C. § 1631. Section 1631 provides that “[w]henever a . . . court finds that there

is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any

other such court in which the action or appeal could have been brought at the time it was filed[.]” 28

U.S.C. § 1631. The Ninth Circuit has held that, “[b]ecause the statute’s language is mandatory, federal

courts should consider transfer without motion by the parties.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070,

1074 (9th Cir. 2001) (citations omitted). A court should transfer an action pursuant to Ҥ 1631 if three

conditions are met: (1) the transferring court lacks jurisdiction; (2) the transferee court could have

exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice.” Jd.

Here, this Court certainly lacks jurisdiction. However, because the Court finds that neither

Plaintiffs’ Non-Willfulness Claims nor their Willfulness Claims fall within the scope of the PREP Act,

the District Court for the District of Columbia would not have jurisdiction over any of Plaintiffs’ claims.

Furthermore, nothing in the record before the Court indicates that a transfer would be in the interest of

justice.

Accordingly, this action may not be transferred to the District Court for the District of Columbia

pursuant to 28 U.S.C. § 1631.

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

B. Defendant Fails to Establish that the Court May Exercise Federal Officer

Jurisdiction Pursuant to 28 U.S.C. § 1442(a)Q1)

In the alternative to its complete preemption argument, Defendant argues that the Court may

exercise jurisdiction over Plaintiffs’ claims pursuant to the federal officer jurisdiction statute, 28 U.S.C.

§ 1442(a)(1).

To establish that removal is proper under Section 1442(a)(1), the removing defendant must

“demonstrate that (a) it is a person within the meaning of the statute; (b) there is a causal nexus between

its actions, taken pursuant to a federal officer’s directions, and plaintiffs claims; and (c) it can assert a

colorable federal defense.” Stirling v. Minasian, 955 F.3d 795, 800 (9th Cir. 2020) (citations omitted).

Unlike the federal question removal statute, Section 1442(a)(1) “must be liberally construed in favor of

removal.” Jd. (citations omitted).

Defendant’s argument concerning federal officer jurisdiction founders on the second element.

Specifically, Defendant fails to establish that 1t committed the alleged acts and omissions giving rise to

Plaintiffs’ claims under the direction of a federal officer.

For 28 U.S.C. § 1442(a) to apply, Defendant must establish that there was a causal nexus

between Defendant’s conduct and Plaintiffs’ claims, while Defendant was acting under the direction of a

federal officer. See 28 U.S.C. § 1442(a)(1); see also Durham v. Lockheed Martin Corp., 445 F.3d 1247,

1251 (9th Cir. 2006). The Supreme Court has held that the phrase “acting under” refers to “an effort to

assist, or to help carry out, the duties or tasks of the federal superior.” Watson v. Philip Morris Cos.,

Inc., 551 U.S. 142, 152 (2007) (emphasis in original). This statutory phrase describes “a relationship

typically involv[ing] subjection, guidance, or control.” Jd. at 151. Mere compliance with federal

regulations, “even if the regulation is highly detailed and even if the private firm’s activities are highly

supervised and monitored,” does not fall within the scope of the statute. Jd. at 153.

Here, Defendant argues that it was acting under the direction of the Center for Disease Control

and Prevention (“CDC”) and Centers for Medicare and Medicaid Services (““CMS”) when the alleged

acts and omissions giving rise to Plaintiffs’ claims occurred. The thrust of Defendant’s argument 1s that

prior to the COVID-19 pandemic, nursing homes were not heavily regulated, but during the pandemic,

CDC and CMS issued “very detailed clinical directives and instructions [which] represented a marked

departure from the regulatory structure which existed before the pandemic.” (Def.’s Opp. to Pls.’ Mot. to

Remand at 23). For example, Defendant asserts that nursing home facilities “were ordered to restrict

visitation, cancel communal dining, . . . implement active screening [of] staff for fever and respiratory

symptoms],]’and “were instructed on which patients and staff to test for COVID-19, under what

circumstances to use and how to conserve PPE[.]’”? (Def.’s Opp. to Pls.’ Mot. to Remand at 23).

2 In support of these assertions, Defendant cites nineteen exhibits to its Request for Judicial Notice

without use of a single pin cite. (See Def.’s Opp. to Pls.” Mot. to Remand at 23) (“(See Def’s Notice of

Removal, Dkt. #1, and RFJN Ex. ‘11’ to ‘29’.))”. The Court therefore makes no finding as to the

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. 2:21-cv-00494-RGK-PD Date March 19, 2021

Title Evon Smith et al v. Colonial Care Center, Inc. et al

Assuming without deciding that Defendant was in fact subject to the regulatory scheme detailed

in its Opposition at all relevant times, the Court nonetheless concludes that the regulatory scheme

alleged does not bring Defendant within the scope of the federal officer removal statute. As the Supreme

Court held in Watson, “a private firm’s compliance (or noncompliance) with federal laws, rules, and

regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal

‘official,’ even if the regulation is highly detailed and even if the private firm’s activities are highly

supervised and monitored.” 551 U.S. at 143. Here, Defendant has established, at most, that it was

subject to “highly detailed” regulations and that Defendant’s “activities are highly supervised and

monitored.” This, without more, is insufficient to trigger the federal officer removal statute. Cf id. at

157 (noting that a private actor may be acting under a federal officer where the private actor is a

government contractor or receives an express delegation of governmental authority from a federal

officer).

Finally, Defendant requests that if the Court grants Plaintiffs’ Motion for Remand, that the Court

issue a temporary stay on remand pursuant to Rule 62(a) of the Federal Rules of Crvil Procedure to

allow Defendant its right to appeal the Court’s decision as to the federal officer jurisdiction statute. See

28 U.S.C. § 1447(d) (“An order remanding a case to the State court from which it was removed is not

reviewable on appeal” unless the action “was removed pursuant to section 1442 or 1443].]’’). The Court

declines to issue such a stay.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion. Accordingly, the Court

REMANDS this action to the state court form which it was removed.

IT IS SO ORDERED.

Initials of Preparer

veracity of Defendant’s factual assertions, as the evidentiary support for those assertions is (presumably)

buried somewhere among nineteen different exhibits. See Indep. Towers of Washington v. Washington,

350 F.3d 925, 929 (9th Cir. 2003) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))

(“Judges are not like pigs, hunting for truffles buried in briefs.”).