# Evon Smith v. Colonial Care Center, Inc.

> District Court, C.D. California · March 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10040485

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10040485

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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

JS-6
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.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10040485. Public record. Not legal advice.