# Ebony Stone v. Long Beach Healthcare Center, LLC

> District Court, C.D. California · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10040520

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 26, 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/10040520

## How later opinions describe it (automated extraction)

- noting that complete preemption applies only to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, § 502(a) of the Employee Retirement Income Security Act of 1974, and §§ 85 and 86 of the National Bank Act
- holding that the federal controversy cannot be “merely a possible or conjectural one”

## Opinion text

UNITED STATES DISTRICT COURT JS-6
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
Case No. CV 21-326-JFW(PVCx) Date: March 26, 2021
Title: Ebony Stone -v- Long Beach Healthcare Center, LLC, et al.

PRESENT:
HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE
Shannon Reilly None Present
Courtroom Deputy Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
None None
PROCEEDINGS (IN CHAMBERS): ORDER GRANTING PLAINTIFFS’ MOTION TO
REMAND [filed 1/26/2021; Docket No. 13];
ORDER DENYING AS MOOT DEFENDANT LONG
BEACH HEALTHCARE CENTER, LLC dba LONG
BEACH HEALTHCARE CENTER’S MOTION TO
DISMISS (FRCP 12(b)(6)) and MOTION TO STRIKE
(FRCP 12(f)) [filed 2/19/2021; Docket No. 20]
On January 26, 2021, Plaintiff Ebony Stone (“Plaintiff”), individually and as successor in
interest to the Estate of Wallace Dorsey, filed a Motion to Remand. On February 8, 2021,
Defendant Long Beach Healthcare Center LLC dba Long Beach Healthcare Center (“Defendant” or
“LBHC”) filed its Opposition. On February 24, 2021, Defendant filed a Notice of Supplemental
Authority.
On February 19, 2021, Defendant filed a Motion to Dismiss (FRCP 12(b)(6)) and Motion to
Strike (FRCP 12(f)) (“Motion to Dismiss and Strike”). On March 8, 2021, Plaintiff filed an
Opposition to Defendant’s Motion to Dismiss and Strike and filed a Reply in support of her Motion
to Remand. On March 15, 2021, Defendant filed a Reply in support of its Motion to Dismiss and
Strike.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court
finds that these matters are appropriate for decision without oral argument. The hearing
calendared for March 29, 2021 is hereby vacated and the matters are taken off calendar. After
considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as
follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
On December 10, 2020, Plaintiff filed a Complaint against Defendant in Los Angeles County
Superior Court, alleging claims for: (1) violations of the Elder and Dependent Adult Civil Protection
Act (California Welfare & Institutions Code §§ 15600, et seq.); (2) negligence; and (3) wrongful
death. In her Complaint, Plaintiff alleges that Wallace Dorsey (the “Decedent”) was admitted to the
Long Beach Healthcare Center, a skilled nursing facility, for long-term care on August 8, 2019.
Plaintiff alleges that Decedent suffered abuse and neglect, was unable to obtain necessary
dialysis, and ultimately contracted COVID-19 which resulted in his death on April 16, 2020.
Plaintiff alleges, inter alia, that Decedent died as a result of Defendant’s failure to adequately staff
Long Beach Healthcare Center and failure to properly create, implement, maintain, or train their
staff in infection control measures to prevent the spread of COVID-19 in the facility. In support of
that allegation, and by way of example, Plaintiff notes that, on July 21, 2020, three months after the
Decedent’s death, Defendant was cited by federal inspectors “for not having requisite knowledge
for cleaning and disinfecting surfaces that may have become contaminated, and for not properly
using personal protective equipment to prevent transmission of illness.” Complaint ¶ 23.
On January 13, 2021, Defendant filed a Notice of Removal, alleging that this Court has
jurisdiction on the grounds that: (1) Plaintiff’s claims are completely preempted by the Public
Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247-6d and 247-6e; (2)
the action raises a substantial and important federal issue, citing Grable & Sons Metal Products v.
Darue Engineering & Manufacturing, 545 U.S. 308 (2005); and (3) removal is proper under the
federal officer statute (28 U.S.C. § 1442(a)(1)) because Defendant was acting under the direction
of a federal officer when it engaged in the allegedly tortious conduct. Plaintiff challenges the
removal of this action and moves to remand.
B. The PREP Act
Passed in 2005, the PREP Act authorizes the Secretary of Health and Human Services
(“HHS”) to issue a declaration determining that “a disease or other health condition or other threat
to health constitutes a public health emergency.” 42 U.S.C. § 247d-6d(b). If applicable, the PREP
Act provides immunity from liability for “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.”1 42
U.S.C. § 247d-6d(a)(1). If immunity applies, the injured person or their survivors may seek
compensation from the Countermeasures Injury Compensation Program – a regulatory program
that provides reimbursement for some losses associated with the use of covered
countermeasures. 42 U.S.C. § 247d-6e. The only exception to the Act’s immunity is when the
injury occurs through willful misconduct. In these instances, the PREP Act provides procedural
1 Under the PREP Act, covered countermeasures include: (1) a qualified “pandemic or
epidemic product”; (2) a “security countermeasure”; (3) a drug, biological product, or device that
the United States Food and Drug Administration (“FDA”) has authorized for emergency use; and
(4) a “respiratory protective device” that is approved by the National Institute for Occupational
Safety and Health (“NIOSH”). 42 U.S.C. § 247d-6d(i)(1).
rules that govern the injured person’s claim. 42 U.S.C. § 247d-6d(d). For example, they must file
in the U.S. District Court for the District of Columbia and the burden of proof is clear and
convincing evidence. Id.; 42 U.S.C. § 247d-6d(c).
On March 10, 2020, the HHS Secretary issued a Declaration Under the Public Readiness
and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (“March 10,
2020 Declaration”), which declared the COVID-19 pandemic a public health emergency under the
PREP Act. 85 Fed. Reg. 15198-01. On December 3, 2020, the HHS Secretary issued a Fourth
Amendment to his March 10, 2020 Declaration (the “Fourth Amendment”).2 85 Fed. Reg. at 79190
(Dec. 9, 2020). In the Fourth Amendment, the HHS Secretary defined the “administration” of a
covered countermeasure as follows:
Administration of the Covered Countermeasure means physical provision of the
countermeasures to recipients, or activities and decisions directly relating to public
and private delivery, distribution and dispensing of the countermeasures to recipients,
management and operation of countermeasure programs, or management and
operation of locations for the purpose of distributing and dispensing
countermeasures.
Where there are limited Covered Countermeasures, 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” under 42 U.S.C.
247d-6d. For example, consider a situation where there is only one dose . . . of a
COVID-19 vaccine, and a person in a vulnerable population and a person in a less
vulnerable population both request it from a healthcare professional. In that situation,
the healthcare professional administers the one dose to the person who is more
vulnerable to COVID-19. In that circumstance, the failure to administer the
COVID-19 vaccine to the person in a less-vulnerable population “relat[es] to . . . the
administration to” the person in a vulnerable population. The person in the
vulnerable population was able to receive the vaccine only because it was not
administered to the person in the less-vulnerable population. Prioritization or
purposeful allocation of a Covered Countermeasure, particularly if done in
accordance with a public health authority's directive, can fall within the PREP Act and
this Declaration's liability protections.
85 Fed. Reg. at 79197. In the Fourth Amendment, the HHS Secretary also: (1) opined that “[t]here
are substantial federal legal and policy issues, and substantial federal legal and policy interests
within the meaning of Grable & Sons Metal Products, Inc. v. Darue Eng’g. & Mf’g., 545 U.S. 308
(2005), in having a uniform interpretation of the PREP Act;” and (2) clarified that the Declaration
2To date, the HHS Secretary has issued seven amendments to the Declaration. See First
Amendment, 85 Fed. Reg. 21012 (Apr. 15, 2020); Second Amendment, 85 Fed. Reg. 35100 (June
8, 2020); Third Amendment, 85 Fed. Reg. 52136 (Aug. 24, 2020); Fourth Amendment, 85 Fed.
Reg. 79190 (Dec. 9, 2020); Fifth Amendment, 86 Fed. Reg. 7872 (Feb. 2, 2021); Sixth
Amendment, 86 Fed. Reg. 9516 (Feb. 16, 2021); Seventh Amendment, 86 Fed. Reg. 14462 (Mar.
16, 2021)
“must be construed in accordance with the Department of Health and Human Services (HHS)
Office of the General Counsel (OGC) Advisory Opinions on the Public Readiness and Emergency
Preparedness Act and the Declaration (Advisory Opinions)” and expressly incorporated the
Advisory Opinions for that purpose. 85 Fed. Reg. at 79191, 79197.
On January 8, 2021, HHS’s Office of the General Counsel (“OGC”) issued an Advisory
Opinion, which opines that the PREP Act “is a ‘complete preemption’ statute” because it
establishes “a federal cause of action, administrative or judicial, as the only viable claim.” Exhibit
EE (Docket No. 15-31). The January 8, 2021 Advisory Opinion also opines that “the Fourth
Amendment to the Secretary’s Declaration supports the Grable doctrine.” Id. The Advisory
Opinion, however, cautions that “[i]t is not a final agency action or a final order. It does not have
the force or effect of law.” Id.
II. LEGAL STANDARD
A motion to remand is the proper procedure for challenging removal. See N. Cal. Dist.
Council of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir.1995). The
removal statute is strictly construed, and any doubt about the right of removal is resolved in favor of
remand. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); see also Prize Frize, Inc. v.
Matrix, Inc., 167 F.3d 1261, 1265 (9th Cir.1999). Consequently, if a plaintiff challenges the
defendant’s removal of a case, the defendant bears the burden of establishing the propriety of the
removal. See Gaus, 980 F.2d at 566; see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th
Cir.1996) (citations and quotations omitted) (“Because of the Congressional purpose to restrict the
jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction
must be rejected if there is any doubt as to the right of removal in the first instance.”).
III. DISCUSSION
The Court concludes that Defendant has failed to establish that this action was properly
removed under any of its three theories of jurisdiction.
A. Complete Preemption
In its first theory, Defendant argues that this action was properly removed based on federal
question jurisdiction because Plaintiff’s state law claims are completely preempted by the PREP
Act. The Court rejects this argument.
1. Legal Standard for Complete Preemption
“Removal based on federal-question jurisdiction is reviewed under the longstanding
well-pleaded complaint rule.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018).
The “well-pleaded complaint rule,' provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly pleaded complaint.” California ex rel.
Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2003) (quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987)). The federal issue “must be disclosed upon the face of the complaint,
unaided by the answer or by the petition for removal.” Id. (quoting Gully v. First Nat. Bank, 299
U.S. 109, 113 (1936) (holding that the federal controversy cannot be “merely a possible or
conjectural one”)). “Thus the rule enables the plaintiff, as ‘master of the complaint,’ to ‘choose to
have the cause heard in state court’ ‘by eschewing claims based on federal law.’” Id. (quoting
Caterpillar, 482 U.S. at 399). As the Supreme Court stated in Caterpillar Inc. v. Williams, 482 U.S.
386 (1987):
Ordinarily federal pre-emption is raised as a defense to the allegations in a plaintiff’s
complaint . . . . [I]t is now settled law that a case may not be removed to federal court
on the basis of a federal defense, including the defense of pre-emption, even if the
defense is anticipated in the plaintiff’s complaint, and even if both parties concede
that the federal defense is the only question truly at issue.
482 U.S. at 392-93.
Complete preemption is an exception to the well-pleaded complaint rule. “[T]he complete
preemption doctrine, provides that ‘Congress may so completely preempt a particular area that any
civil complaint raising this select group of claims is necessarily federal in character.’”
Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1243–44 (9th Cir. 2009) (citing Toumajian v.
Frailey, 135 F.3d 648, 653 (9th Cir. 1998) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58,
63–64 (1987)). If complete preemption applies, “the state-law claim is simply ‘recharacterized’ as
the federal claim that Congress made exclusive.” Hansen, 902 F.3d at 1058 (quoting Vaden v.
Discover Bank, 556 U.S. 49, 61 (2009)). “[W]hen a federal statute wholly displaces the state-law
cause of action through complete preemption,” the state claim can be removed. Beneficial Nat'l
Bank v. Anderson, 539 U.S. 1, 8 (2003).
Complete preemption is extremely “rare.” Hansen, 902 F.3d at 1057. The Supreme Court
has found complete preemption applicable to only three federal statutes. See City of Oakland v.
BP PLC, 969 F.3d 895, 905 (9th Cir. 2020) (noting that complete preemption applies only to § 301
of the Labor Management Relations Act, 29 U.S.C. § 185, § 502(a) of the Employee Retirement
Income Security Act of 1974, and §§ 85 and 86 of the National Bank Act). While discussing the
limited nature of the doctrine, the Ninth Circuit held that “complete preemption for purposes of
federal jurisdiction under Section 1331 exists when Congress: (1) intended to displace a state-law
cause of action, and (2) provided a substitute cause of action.” City of Oakland, 969 F.3d at 906
(citing Hansen, 902 F.3d at 1057). Thus, before complete preemption can apply to a plaintiff's
state law claims, the “the claims at issue must fall within the scope of the relevant federal statute.”
Jackson v. Big Blue Healthcare, Inc., 2020 WL 4815099, at *3–4 (D. Kan. Aug. 19, 2020) (citing
Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9 n.5 (2003)).
2. Plaintiff’s Claims Are Not Completely Preempted
The parties disagree on whether Plaintiff's claims fall within the scope of the PREP Act.
Plaintiff argues the PREP Act does not apply to her claims because her claims are based on a
failure to properly implement an effective infection control program (including by failing to properly
train staff) rather than the use or misuse of a covered countermeasure. Defendant argues that the
PREP Act applies to Plaintiff’s claims because the HHS Secretary’s December 3, 2020
Amendment makes clear that the failure to use a covered countermeasure can fall within the PREP
Act’s protections and that the failure to properly implement an effective infection control program
by its very nature implicates the use of covered countermeasures such as, for example, personal
protective equipment and COVID-19 testing.
Although the HHS Secretary’s Fourth Amendment makes clear that an “inaction claim” is not
necessarily beyond the scope of the PREP Act, such claims only fall under the scope of the PREP
Act where: (1) there are limited covered countermeasures; and (2) there was a failure to administer
a covered countermeasure to one individual because it was administered to another individual. 85
Fed. Reg. at 79197 (illustrating a causal relationship between (1) administering and (2) not
administering a covered countermeasure where person-A “was able to receive the [single covered
countermeasure] only because it was not administered to” person B). Thus, pursuant to the HHS
Secretary’s December 3, 2020 Amendment, there is only immunity for “inaction claims” when the
failure to administer a covered countermeasure to one individual has “a close causal relationship”
to the administration of that covered countermeasure to another individual. Anson v. HCP Prairie
Village KS Opco LLC, 2021 WL 308156 (D. Kan. Jan. 29, 2021). For example, “[p]rioritization or
purposeful allocation of a Covered Countermeasure, particularly if done in accordance with a
public authority’s directive, can fall within the PREP Act and th[e] Declaration’s liability protections.”
85 Fed. Reg. at 79197; Exhibit EE (Docket No. 15-31). Other “inaction claims” may not.
In this case, Plaintiff does not allege that Decedent’s death was causally connected to the
administration or use of any covered countermeasure. Instead, Plaintiff alleges “precisely the
opposite” – that it was inaction, rather than action, by Defendant that caused Decedent’s death.
Anson v. HCP Prairie Village KS Opco LLC, 2021 WL 308156 (D. Kan. Jan. 29, 2021) (quoting
Eaton v. Big Blue Healthcare, Inc., 2020 WL 4815085, at *7–8 & n.13 (D. Kan. Aug. 19, 2020)).
Indeed, the gravamen of Plaintiff’s Complaint is that Defendant failed “to either create, implement,
maintain, or train their staff in the proper infection control mechanisms necessary to avoid the
transmission of disease.” Complaint ¶ 25; see also id. ¶¶ 23, 24, 26, 27, 28. Numerous courts
have concluded that allegations like these do not fall within the scope of the PREP Act. See, e.g.,
Estate of McCalebb v. AG Lynwood, LLC, 2021 WL 911951, at *1, 5 (C.D. Cal. Mar. 1, 2021)
(concluding that the action does not appear to be about a purposeful allocation of scarce resources
where Plaintiff alleged that, inter alia, Defendant failed to follow, implement, and adhere to all CDC
guidelines on how to protect and treat Decedent in light of the risk of COVID-19, and where “the
gravamen of the Complaint is that Defendant was generally neglectful in operating the Facility”);
Robertson v. Big Blue Healthcare, Inc., 2021 WL 764566, at *2, 7-9 (D. Kan. Feb. 26, 2021)
(concluding that claims premised on a failure to take preventative measures to stop the spread of
COVID-19, including allegations that the defendants failed to “follow proper infection control
protocols” and “provide personal protective equipment (‘PPE’) to staff” do not fall within the scope
of the PREP Act).
Although Plaintiff mentions in her Complaint that Defendant was cited for not properly
“using” personal protective equipment three months after Decedent’s death, there are no
allegations linking Decedent’s death to the use of that personal protective equipment or linking
Decedent’s death to the purposeful allocation of personal protective equipment to other individuals.
Instead, Plaintiff appears to be merely using that citation as an example of Defendant’s alleged
failure to implement effective control policies in its facility. See Estate of McCalebb, 2021 WL
911951, at *5 (“While Plaintiffs refer to the failure to provide adequate PPE (and training in its use),
this allegation is one of 19 claims of negligence in a complaint that describes overall inattention
rather than conscious decision-making about covered countermeasures while delivering care.”);
Anson, 2021 WL 308156, at *10 (quotations and citations omitted (“[E]ven if the court were
prepared to assume that the Petition alleges conduct that qualifies as administration or use of a
covered countermeasure” within the meaning of the PREP Act, the statute still requires a causal
connection between the injury and the use or administration of covered countermeasures.”). As
one district court stated:
Suffice it to say that the Court is not convinced that a facility using covered
countermeasures somewhere in the facility is sufficient to invoke the PREP Act as to
all claims that arise in that facility. The PREP Act still requires a causal connection
between the injury and the use or administration of covered countermeasures, and
that link is not present under Defendants’ interpretation.
Brown v. Big Blue Healthcare, 480 F. Supp. 3d 1196, 1206 (D. Kan. 2020).
More importantly, even assuming that the PREP Act might arguably provide Defendant
immunity on some of Plaintiff’s claims,3 the Court concludes that the PREP Act does not satisfy the
Ninth Circuit’s two pronged complete preemption test. City of Oakland, 969 F.3d at 905. The
doctrine of complete preemption applies in very limited circumstances; this is not the “rare” statute
where complete preemption applies. Hansen, 902 F.3d at 1057. First, the PREP Act does not
completely replace state law claims related to COVID-19. As many courts have held, the PREP
Act does not prevent plaintiffs from bringing state law claims based on an alleged failure to use
covered countermeasures. See, e.g., Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 2020
WL 4671091, at *1, *9 (D.N.J. Aug. 12, 2020) (holding that the failure to “observe a wide range of
appropriate safety precautions” “would not be preempted by the PREP Act, which is designed to
protect those who employ countermeasures, not those who decline to employ them”); Jackson,
2020 WL 4815099, at *8 (holding the PREP Act does not apply to “the non-administration or
non-use of covered countermeasures” and concluding that the PREP Act did not apply to plaintiff's
claims because “[d]efendants fail[ed] to point to any claim in the complaint where Plaintiff alleges
that the administration or use of any of these things [covered countermeasures] caused the
decedent’s death”); Estate of Jones v. St. Jude Operating Co., LLC, 2021 WL 900672, at *4-6 (D.
Or. Feb. 16, 2021), report and recommendation adopted by 2021 WL 886217 (D. Or. Mar. 8, 2021)
(concluding that the doctrine of complete preemption does not apply, and citing numerous cases in
support thereof). These cases plainly hold that the PREP Act does not “wholly displace” state law
claims that implicate healthcare entities and COVID-19. Parker v. St. Jude Operating Co., LLC,
2020 WL 8362407, at *5 (D. Or. Dec. 28, 2020); Beneficial Nat'l Bank, 539 U.S. at 8.

Second, the PREP Act does not provide a substitute cause of action for Plaintiff's claims
based on Defendant’s alleged negligence. “Instead, when applicable, the PREP Act provides
immunity to defendants on state law negligence claims.” Parker, 2020 WL 8362407, at *5 . See
also Dupervil v. Alliance Health Operations, LLC, __ F. Supp. 3d __, 2021 WL 355137, at *9
(E.D.N.Y. Feb. 2, 2021) (“[I]t is important to note that the PREP Act is, at its core, an immunity
statute; it does not create rights, duties, or obligations.”). As the district court in Estate of
McCalebb v. AG Lynwood, LLC, 2021 WL 911951 (C.D. Cal. Mar. 1, 2021) recently stated:
3The Court does not conclude that Defendant is entitled to PREP Act immunity on any of
Plaintiff’s claims. The Los Angeles County Superior Court will make that determination on remand.
Other than for willful misconduct, Congress provided no federal remedy that could be
pursued through a federal cause of action. Instead, Congress established an
emergency fund to provide adequate compensation to eligible individuals for covered
injuries directly caused by the administration or use of a covered countermeasure.
The HHS Secretary is responsible for establishing procedures to administer this
compensation program. The Secretary’s determination of eligibility and
compensation under the program is final and not subject to judicial review.
In this case, Plaintiffs have brought negligence claims. If their negligence claims
were preempted, then Plaintiffs would have to look to the Secretary’s compensation
program for relief. Under Ninth Circuit law, such administrative relief is not the type
of displacement remedy that triggers complete preemption. For purposes of
complete preemption, the displacement remedy must supply a federal cause of
action. An administrative remedy will not suffice because the complete-preemption
doctrine rests on the theory that any state claim within its reach is transformed into
federal claims. This transformation is the source of original federal jurisdiction by
supplying a federal cause of action.
The PREP Act does not create original federal jurisdiction over a covered claim for
negligence or recklessness. On the contrary, Congress precluded it by vesting
exclusive jurisdiction in the HHS Secretary. In this circumstance, allowing removal to
federal court on complete-preemption grounds is internally inconsistent: the district
court must have jurisdiction for removal to be proper, but the court must then dismiss
the removed case because only the administrative agency, not federal courts, have
primary jurisdiction. Thus, the PREP Act does not completely preempt such covered
claims.
2021 WL 911951, at * 4 (internal quotations, citations, footnotes, and alterations omitted).4
Finally, to the extent that Defendant relies on the Office of General Counsel’s January 8,
2021 Advisory Opinion and the HHS Secretary’s Fourth Amendment to the March 10, 2020
Declaration in support of its complete preemption argument,5 the Court agrees with and adopts the
4Moreover, to 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).
5To the extent that Defendant relies on the Acting Secretary’s Fifth Amendment to the
March 10, 2020 Declaration, the Court concludes that the Fifth Amendment does not support
Defendant’s complete preemption argument. On January 28, 2021, the Acting HHS Secretary
issued the Fifth Amendment to the March 10, 2020 Declaration to “add additional categories of
Qualified Persons authorized to prescribe, dispense, and administer COVID-19 vaccines that are
covered countermeasures.” 86 Fed. Reg. 7872 (Feb. 2, 2021). The Fifth Amendment stated that
including additional healthcare professionals as Qualified Persons would achieve the following two
purposes: (1) these healthcare professionals would be afforded liability protections in accordance
analysis of Dupervil v. Alliance Health Operations, LCC, __ F. Supp. 3d __, 2021 WL 355137, at
*10 (E.D.N.Y. Feb. 2, 2021), Estate of Jones v. St. Jude Operating Company, LLC, 2021 WL
900672, at *6-7 (D. Or. Feb. 16, 2021), report and recommendation adopted by 2021 WL 886217
(D. Or. Mar. 8, 2021), and Evon Smith v. Colonial Care Center, Inc., 2021 WL 1087284, at *6 (C.D.
Cal. Mar. 19, 2021). Accordingly, the Court concludes that HHS Secretary’s and the OGC’s
interpretations of this Court’s jurisdiction under the PREP Act are not entitled to deference and lack
the “power to persuade.”
Accordingly, the Court concludes that Plaintiff’s claims are not completely preempted by the
PREP Act.
B. Embedded Question of Federal Law
In its second theory of subject matter jurisdiction, Defendant argues that there is embedded
federal question jurisdiction over Plaintiff’s claims, citing Grable & Sons Metal Products, Inc. v.
Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). In order to establish federal jurisdiction due to a
“substantial, embedded question of federal law,” a “state law claim [must] 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.”
Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). In other
words, “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258
(2013). In addition, “it is not enough that the federal issue be significant to the particular parties in
the immediate suit; that will always be true when the state claim ‘necessarily raise[s]’ a disputed
federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead
to the importance of the issue to the federal system as a whole.” Gunn, 568 U.S. at 260. “[T]he
mere use of a federal statute as a predicate for a state law cause of action does not necessarily
transform that cause of action into a federal claim.” Nevada v. Bank of America Corp., 672 F.3d
661, 675 (9th Cir. 2012). Nor does “the question whether a particular claim arises under federal
law depend . . . on the novelty of the federal issue.” Id. (quoting Merrell Dow Pharms., Inc. v.
with the PREP Act; and (2) any State law that would otherwise prohibit these health care
professionals from prescribing, dispensing, or administering COVID-19 vaccines was preempted.
The Fifth Amendment then conducted a narrow preemption analysis with respect to state laws that
would otherwise prohibit the additional health care professionals covered by the Fifth Amendment
from prescribing, dispensing, or administering COVID-19 vaccines, and concluded that “[t]he plain
language of the PREP Act makes clear that there is complete preemption of state law as described
above” and that preemption of state law is “justified to respond to the nation-wide public health
emergency caused by COVID-19.” 86 Fed. Reg. at 7874 (emphasis added). Based on the
apparent narrow scope of the Fifth Amendment and the limited focus of its preemption analysis,
the Court concludes that the Fifth Amendment was not intended to and did not address the
complete preemption analysis at issue in this Order. Instead, the Fifth Amendment uses the term
“complete preemption” to refer “not to the doctrine of complete preemption for purposes of federal-
question jurisdiction, but rather to ordinary, defensive preemption.” Dupervil, 2021 WL 355137, at
*11 n.3.
Thompson, 478 U.S. 804, 817 (1986)).
The Court concludes that Plaintiff’s claims do not present an embedded question under
Grable. The federal issue raised relates to Defendant’s defense, not the claims alleged by Plaintiff.
As such, the federal issue is not necessarily raised. See, e.g., Robertson v. Big Blue Healthcare,
Inc., 2021 WL 764566, at * (D. Kan. Feb. 26, 2020) (“To be certain, Defendants intend to assert
the PREP Act as a defense to Plaintiff’s claim. But that is not enough.”); Dupervil, 2021 WL
355137, at *14 (“But this only shows that Defendants may have an affirmative defense to Plaintiff’s
claims, not that Plaintiff’s claims are affirmatively premised on, or on their face necessarily require
resolution of, the PREP Act.”).
To the extent Defendant relies on the Office of General Counsel’s January 8, 2021 Advisory
Opinion and the HHS Secretary’s Fourth Amendment to the March 10, 2020 Declaration in support
of its Grable doctrine argument, the Court agrees with and adopts the analysis of Dupervil, 2021
WL 355137, at *14 and Estate of Jones, 2021 WL 900672, at *6-7, and concludes that the HHS
Secretary’s and the OGC’s interpretations of this Court’s jurisdiction under the PREP Act are not
entitled to deference and lack the “power to persuade.”
.
Accordingly, the Court concludes that it does not have subject matter jurisdiction based on
embedded federal question grounds.
C. Federal Officer Removal
Finally, in its third theory, Defendant argues that federal officer removal is available because
it was “acting under” the direction of a federal officer. Specifically, Defendant argues that it was
acting pursuant to directives issued by the Centers for Disease Control and the Centers for
Medicare and Medicaid Services (“CMS”), and the California Department of Public Health
(“CDPH”) that were highly detailed and specifically aimed at helping achieve the federal
government’s efforts to stop or limit the spread of COVID-19.
Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the removing party] 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 plaintiff's claims; and (c) it can assert a ‘colorable
federal defense.’” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). In this case,
Defendant has failed to establish it acted “pursuant to a federal officer's directions.” Specifically,
the directives that Defendant relies on are nothing more than “general regulations and public
directives regarding the provision of medical services.” Martin v. Serrano Post Acute LLC, 2020
WL 5422949 (C.D. Cal. Sept. 10, 2020) (quoting Watson v. Philip Morris Companies, Inc., 551 U.S.
142, 153 (2007)); see also Saldana v. Glenhaven Healthcare LLC, 2020 WL 6713995 (C.D. Cal.
Oct. 14, 2020) (holding that where the defendants argued that “in taking steps to prevent the
spread of COVID-19, [they] did so in compliance with CDC and CMS directives, which were aimed
at helping achieve the federal government’s efforts at stopping or limiting the spread of COVID-19,”
such general regulations and public directives were “insufficient” to confer jurisdiction under the
federal officer removal statute). In addition, “[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.” Martin, 2020 WL 5422949 (quoting Watson,
551 U.S. 142, 153).
Accordingly, the Court concludes that Defendant has failed to demonstrate that removal was
proper under the federal officer removal statute.6 See 28 U.S.C. § 1442(a)(1).
IV. CONCLUSION
For all the foregoing reasons, Plaintiff’s Motion is GRANTED, and this action is REMANDED
to Los Angeles County Superior Court for lack of subject matter jurisdiction. See 28 U.S.C. §
1447(c). “To be clear, the Court makes no decision as to whether Plaintiff’s claims are barred by
the PREP Act under principles of ordinary defensive preemption, or otherwise. That issue is for the
state court to decide.” Dupervil, 2021 WL 355137, at *13.
Defendant’s Motion to Dismiss and Strike is DENIED as moot.
IT IS SO ORDERED.

6Because the Court concludes that Defendant has failed to demonstrate that Defendant
acted “pursuant to a federal officer’s directions,” the Court need not address the remaining
requirements for removal under 28 U.S.C. § 1442(a).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10040520. Public record. Not legal advice.