# Doreen Acra v. California Magnolia Convalescent Hospital, Inc.

> District Court, C.D. California · July 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10041238

## Case

- **Court:** District Court, C.D. California
- **Decided:** July 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. EDCV 21-898-GW-SHKx Date July 1, 2021
Title Doreen Acra, et al. v. California Magnolia Convalescent Hospital, Inc., et al.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
Javier Gonzalez Terri A. Hourigan
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Sylvia Panosian Amber L. Roller
PROCEEDINGS: TELEPHONIC HEARING ON DEFENDANT NBCUNIVERSAL
MEDIA, LLC'S MOTION FOR SUMMARY JUDGMENT, OR IN THE
ALTERNATIVE, PARTIAL SUMMARY JUDGMENT OF CLAIMS [22]
Court hears oral argument. The Tentative circulated and attached hereto, is adopted as the Court’s Final
Ruling. The Court will remand the matter to state court for lack of subject matter jurisdiction.
Magnolia’s motion to dismiss is denied.

: 25
Doreen Acra et al v. California Magnolia Convalescent Hospital, Inc. et al; Case No. 5:21-cv-00898-
GW-(SHKx); Tentative Ruling on Motion to Dismiss

I. Background
A. Procedural Background
On March 24, 2021, Plaintiffs Doreen Acra and Pamela Archuleta, individually and as
heirs and successors-in-interest to Billy Acra, filed a state court complaint against Defendants
California Magnolia Convalescent Hospital, Inc., doing business as Magnolia Rehabilitation &
Nursing Center (“Magnolia”) and Vibra Hospital of San Bernardino, LLC, doing business as
Ballard Rehabilitation Hospital (“Ballard”). See Complaint, Docket No. 1-2. The Complaint
alleges three causes of action: (1) violations of the California Elder Abuse and Dependent Adult
Civil Protection Act (Cal. Welf. & Inst. Code §§ 15600 et seq.); (2) negligence; and (3) wrongful
death. See id. On May 21, 2021, Defendant Magnolia removed the case to federal court, arguing
the following: (1) that federal question jurisdiction existed due to complete preemption under the
Public Readiness and Emergency Preparedness Act (“PREP Act”); (2) that federal question
jurisdiction existed because the case raised substantial federal issues; and (3) that removal also
was proper under 28 U.S.C. § 1442(a)(1), the federal officer removal statute. See Notice of
Removal, Docket No. 1 at 3, 17, 19.1
Before the Court is Magnolia’s motion to dismiss Plaintiffs’ Complaint (“Motion”). See
Docket No. 11. On June 28, 2021, Plaintiffs filed what appears to be a combined motion to
remand the action back to state court and a brief in opposition to Magnolia’s motion to dismiss
(“Opp.”). See Docket No. 15.2
B. Factual Allegations
According to the Complaint, Decedent Billy Acra (“Decedent”) was a 79-year-old

1 According to the Notice of Removal, Defendant Ballard did not object to removing the case to federal
court. See Notice of Removal ¶ 72. Ballard has not appeared in this matter, post-removal. See generally Docket.
2 This district’s Local Rules require that a written opposition be filed “not later than twenty-one (21) days
before the date designated for the hearing of the motion.” C.D. Cal. L.R. 7-9. Because the hearing on Magnolia’s
motion to dismiss is scheduled for July 1, 2021, any written response by Plaintiffs was due on June 10, 2021. As
such, Plaintiffs’ opposition brief – filed three days before the hearing – was untimely. Nevertheless, the Court has
an obligation to ensure that subject matter jurisdiction exists before proceeding, “even in the absence of a challenge
from any party.” See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Additionally, as the Court will explain
infra, the Court would remand the matter for lack of subject matter jurisdiction and would deny Magnolia’s motion
to dismiss as moot. The Court therefore need not consider Plaintiffs’ arguments in opposition to the motion to
dismiss.
dependent adult “who had physical and mental limitations that restricted his ability to carry out
normal activities of daily living.” See Complaint ¶ 12. Plaintiff Doreen Acra is Decedent’s wife
and successor-in-interest. See id. ¶ 8. Plaintiff Pamela Archuleta (“Archuleta”) is Decedent’s
stepdaughter. See id. ¶ 9. Defendants Magnolia and Ballard are skilled nursing care facilities
located in Riverside, California and San Bernardino, California, respectively. See id. ¶¶ 13-15.
During Decedent’s stay at both facilities, Defendants purportedly were aware that Decedent “was
in a compromised physical state,” required close supervision and medical attention, and had a
medical history of hypertension and post-cerebrovascular accident status, which limited his
mobility and made him dependent on their staff for daily living activities. See id. ¶¶ 20-21, 45-
46.
Plaintiffs allege that on or about March 25, 2020, Decedent was admitted to Magnolia for
physical therapy and rehabilitation following a stroke. See id. ¶ 22. Magnolia purportedly failed
to implement effective infection control policies throughout the facility and failed to provide for
Decedent’s health and safety. See id. ¶¶ 24-25. As a result, Magnolia allegedly deprived
Decedent of his necessary therapy and caused Decedent to develop preventable skin breakdowns,
suffer dehydration, and contract COVID-19. See id. On April 7, 2020 and April 8, 2020,
Magnolia nursing staff called Archuleta and requested that she pick Decedent up from the
facility as soon as possible. See id. ¶¶ 30-31. When Decedent was discharged from Magnolia on
April 8, 2020, he told his family he “received very little water during the final five days at his
residency at Magnolia due to staff no longer coming to work.” See id. ¶ 31. He also stated, inter
alia, that during the entirety of his stay, the staff only brushed his teeth once and never got him
up to use a bedside commode or to use the restroom. See id. ¶¶ 31-32.
On or about April 9, 2020, Decedent allegedly was admitted to Ballard for the same
reasons as he was admitted to Magnolia: physical therapy and rehabilitation following a stroke.
See id. ¶ 47. Ballard purportedly failed to implement effective infection control policies
throughout the facility and failed to provide for Decedent’s health and safety. See id. ¶¶ 49-69.
As a result, Decedent contracted COVID-19, developed sepsis, pneumonia, and suffered acute
chronic hypoxic respiratory failure. See id. ¶ 49. Ballard also allegedly failed to employ an
adequate number of qualified personnel at the facility throughout the course of Decedent’s
residency, which also caused Decedent’s ailments. See id. ¶¶ 70-71.
Plaintiffs allege that on or about April 14, 2020, Decedent began experiencing COVID-
19 symptoms. See id. ¶ 72. Decedent was admitted to the hospital on April 17, 2020 due to
altered mental status, fever, and chills. See id. ¶ 73. He tested positive for COVID-19, was
transferred to the Intensive Care Unit, and suffered an acute kidney injury and septic shock. See
id. ¶¶ 74-75. Decedent passed away on April 28, 2020. See id. ¶ 76. His death certificate lists
acute chronic hypoxic respiratory failure, septic shock, pneumonia, and COVID-19 as his causes
of death, and acute kidney injury, cerebrovascular accident, deep vein thrombosis, and limb
ischemia as other significant contributing factors to his death. See id.
C. Request for Judicial Notice
Magnolia requests that the Court take judicial notice of 34 documents. See Request for
Judicial Notice in Support of Motion to Dismiss (“RJN”), Docket No. 12 (referencing exhibits
attached to Docket No. 5). Plaintiffs have not opposed this request or questioned the authenticity
of any of the documents. See generally Opp.
The Court may judicially notice facts that are not subject to reasonable dispute because
they “can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” Fed. R. Evid. 201(b). The Court also may take judicial notice of court filings
and other matters of public record. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,
746 n.6 (9th Cir. 2006) (citation omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007) (courts may consider “matters of which a court may take judicial
notice” when ruling on Rule 12(b)(6) motions to dismiss). The Court will consider the following
exhibits attached to Magnolia’s RJN, which are court filings or other matters of public record: 1-
5, 9, 30, 32-34. See Docket No. 5, 12. The Court does not rely on the remaining documents in
reaching its ruling on the instant motion and denies the request for judicial notice as to those
exhibits.
II. Legal Standard
Magnolia brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)
and/or 12(b)(6). See Motion at 2. However, as a preliminary matter, the Court must ensure that
subject matter jurisdiction exists before proceeding, “even in the absence of a challenge from any
party.” See Arbaugh, 546 U.S. 500, 514 (2006); Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116
(9th Cir. 2004).
Federal courts operate under the presumption that they do not have jurisdiction over
state-law causes of action. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
“The defendant bears the burden of establishing that removal is proper” and removal statutes are
“strictly construed against removal jurisdiction.” Provincial Gov’t of Marinduque v. Placer
Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009); see also Gaus v. Miles, Inc., 980 F.2d 564, 566
(9th Cir. 1992) (“[J]urisdiction must be rejected if there is any doubt as to the right of removal.”).
Federal courts have original jurisdiction over all civil actions that arise under federal law.
28 U.S.C. § 1331. A case may arise under federal law where “it appears that some substantial,
disputed question of federal law is a necessary element of one of the well-pleaded state
claims.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463
U.S. 1, 13 (1983); see also Armstrong v. N. Mariana Islands, 576 F.3d 950, 955 (9th Cir. 2009).
“When a claim can be supported by alternative and independent theories – one of which is a state
law theory and one of which is a federal law theory – federal question jurisdiction does not
attach because federal law is not a necessary element of the claim.” Rains v. Criterion Sys., Inc.,
80 F.3d 339, 346 (9th Cir. 1996).
The presence of federal question jurisdiction is governed by the “well-pleaded complaint
rule,” which provides that federal jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint. See Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987). This rule makes a plaintiff the master of his complaint: it allows him to avoid
federal jurisdiction by relying exclusively on state law. It is “settled law that a case may not be
removed to federal court on the basis of a federal defense, including the defense of preemption,
even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that
the defense is the only question truly at issue in the case.” Franchise Tax Bd., 463 U.S. at 13-14.
There are, however, cases where the well-pleaded complaint rule gives way to “complete
preemption” by federal statute. The United States Supreme Court has concluded that the
preemptive force of some federal statutes is so strong that they “completely pre-empt” an area of
state law. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987). In those cases, any
claim purportedly based on that preempted state law is considered, from its inception, a federal
claim, and therefore arises under federal law. See Franchise Tax Bd., 463 U.S. at 24.
III. Discussion
Magnolia removed the instant action to federal court pursuant the PREP Act, which
Magnolia contends is a complete preemption statute giving rise to federal question jurisdiction.
See Notice of Removal at 3. Magnolia also removed the case on the basis that Plaintiffs’ claims
raised substantial federal issues. See id. at 17. Finally, Magnolia contended that removal was
proper under 28 U.S.C. § 1442(a)(1), the federal officer removal statute. See id. at 19.
A. Federal Question Jurisdiction
1. The PREP Act
The PREP Act is invoked when the Secretary of the Department of Health and Human
Services (“HHS”) issues a declaration determining that a disease or other health condition
constitutes an ongoing public health emergency. 42 U.S.C. § 247d-6d(b). If the Secretary
determines that there is such an emergency, he “may make a declaration, through publication in
the Federal Register, recommending . . . the manufacture, testing, development, distribution,
administration, or use of one or more covered countermeasures, and stating that [42 U.S.C. §
247d-6d(a)] is in effect with respect to the activities so recommended.” Id. The Secretary issued
a declaration for the ongoing COVID-19 pandemic on March 10, 2020, and has issued seven
subsequent amendments thereto. See RJN Exh. 2-5, 30, 33-34.
Once invoked, the PREP Act provides that “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.” 42 U.S.C. § 247d-6d(a)(1). This immunity is broad. It applies to “any claim
for loss that has a causal relationship with the administration to or use by an individual of a
covered countermeasure, including a causal relationship with the design, development, clinical
testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing,
promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of
such countermeasure.” 42 U.S.C. § 247d-6d(a)(2)(B).
“Covered countermeasures” under the PREP Act cover drugs, biological products, or
devices that are designed to diagnose, mitigate, prevent, or treat harm from the public health
emergency. Id. at § 247d-6d(i)(1), (7). The HSS Secretary’s COVID-19 Declaration more
specifically defines covered countermeasures as “any antiviral, any other drug, any biologic, any
diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate
COVID-19 . . . or any device used in the administration of any such product, and all components
and constituent materials of any such product.” RJN Exh. 2 at 40. “Administration” and “use”
are not defined in the act, but the HSS Secretary’s COVID-19 Declaration states that
“administration” of covered countermeasures “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 purpose of distributing
and dispensing countermeasures.” Id.
The PREP Act preempts state laws that create different standards regarding covered
countermeasures:
During the effective period of a declaration under subsection (b), or at any time
with respect to conduct undertaken in accordance with such declaration, no State
or political subdivision of a State may establish, enforce, or continue in effect
with respect to a covered countermeasure any provision of law or legal
requirement that—
(A) is different from, or is in conflict with, any requirement applicable
under this section; and
(B) relates to the design, development, clinical testing or investigation,
formulation, manufacture, distribution, sale, donation, purchase,
marketing, promotion, packaging, labeling, licensing, use, any other aspect
of safety or efficacy, or the prescribing, dispensing, or administration by
qualified persons of the covered countermeasure, or to any matter included
in a requirement applicable to the covered countermeasure under this
section or any other provision of this chapter, or under the Federal Food,
Drug, and Cosmetic Act.
42 U.S.C. § 247d-6d(b)(8). In sum, the PREP Act creates immunity for all claims of loss
causally connected to the administration or use of covered countermeasures, which are certain
drugs, biological products, or devices.
2. Whether the PREP Act Completely Preempts Plaintiffs’ Claims
Magnolia argues that the PREP Act completely preempts Plaintiffs’ claims, all of which
are state law causes of action. See Notice of Removal at 3-13; Motion at 20-21. “[C]omplete
preemption for purposes of federal jurisdiction under § 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 v. BP PLC, 969 F.3d 895, 906 (9th Cir. 2020) (citing Hansen v. Grp. Health Coop., 902
F.3d 1051, 1057 (9th Cir. 2018)). Essentially, Congress must intend for the statute to “provide
the exclusive cause of action.” See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 9 (2003).
“[M]any courts have held [that] the PREP Act does not prevent plaintiffs from bringing
state law claims based on an alleged failure to use covered countermeasures.” See Stone v. Long
Beach Healthcare Ctr., LLC, No. CV 21-326-JFW (PVCx), 2021 WL 1163572, at *5 (C.D. Cal.
Mar. 26, 2021) (citing cases which “plainly hold that the PREP Act does not wholly displace
state law claims that implicate healthcare entities and COVID-19” (quotation omitted)); see also
Golbad v. GHC of Canoga Park, No. 21-CV-01967-ODW (PDx), 2021 WL 1753624, at *2
(C.D. Cal. May 4, 2021) (“And, simply put, the PREP Act does not satisfy the Ninth Circuit’s
two-part complete preemption test.”); Padilla v. Brookfield Healthcare Ctr., No. CV 21-2062-
DMG (ASx), 2021 WL 1549689, at *4 (C.D. Cal. Apr. 19, 2021) (collecting cases and
concluding that “[n]early every other federal court addressing the issue of complete preemption
has found that the PREP Act is not a statute with complete preemptive effect”); Riggs v. Country
Manor La Mesa Healthcare Ctr., No. 21-CV-331-CAB-DEB, 2021 WL 2103017, at *2 (S.D.
Cal. May 25, 2021) (“Although this exact issue does not appear to have been considered by an
appellate court, district courts in the Ninth Circuit and around the country have consistently held
that the PREP Act does not satisfy [the] requirements for complete preemption.”).
Magnolia cites one case within the Ninth Circuit finding that the PREP Act is a complete
preemption statute: Garcia v. Welltower OpCo Grp. LLC, No. SACV 20-02250-JVS (KESx),
2021 WL 492581, at *7 (C.D. Cal. Feb. 10, 2021). See Notice of Removal ¶¶ 27-28; Motion at
17-18. The court in Garcia deferred to the HHS Office of the General Counsel’s (“OGC’s”)
January 8, 2021 Advisory Opinion, which posits that the PREP Act is a complete preemption
statute. See Garcia, 2021 WL 492581, at *7; RJN Exh. 9 at 85. Specifically, the Advisory
Opinion states: “The sine qua 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.” See RJN Exh. 9 at 85. A
federal agency’s interpretations of a statute in the form of opinion letters lack the force of law
and are only “entitled to respect” to the extent they have the “power to persuade.” See
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)). The Court would agree with the other district courts holding that the
January 8, 2021 Advisory Opinion is not persuasive and therefore “entitled to minimal respect”
because, inter alia, it does “not cite any legal support for the proposition that an exclusive federal
administrative remedy is sufficient for complete preemption.” See Padilla, 2021 WL 1549689,
at *4-5 (quotation omitted); see also Smith v. Colonial Care Ctr., Inc., No. 2:21-cv-00494-RGK-
PD, 2021 WL 1087284, at *6 (C.D. Cal. Mar. 19, 2021) (same); Stone, 2021 WL 1163572, at *6
(concluding 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’”).
Moreover, as other courts within this district have noted, Garcia “did not consider the
Ninth Circuit’s two-part complete preemption test.” See Golbad, 2021 WL 1753624, at *3; see
also Estate of McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746-SB-PVC, 2021 WL 911951,
at *4 (C.D. Cal. Mar. 1, 2021) (court in Garcia deferred to the January 8, 2021 Advisory
Opinion “without analyzing the Ninth Circuit’s two-pronged test”). As such, the Court would
decline to hold that the PREP Act is one of the rare statutes to which complete preemption
applies. See Hansen, 902 F.3d at 1057 (the Ninth Circuit has observed that complete preemption
is “rare”); City of Oakland, 969 F.3d at 905-06 (the Supreme Court has identified only three
statutes that meet the complete preemption criteria).3
3. Whether Plaintiffs’ Claims Raise Substantial Federal Issues
Magnolia also contends that federal question jurisdiction exists because Plaintiffs’ claims
raise “substantial federal issues establishing federal question jurisdiction,” i.e., “the extent to
which the broad immunities afforded under the PREP Act apply to Defendant’s conduct.” See
Notice of Removal at 17. Magnolia relies on the HHS Secretary’s Fourth Amended Declaration,
which states, in relevant part:
COVID-19 is a global challenge that requires a whole-of-nation response.
There 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 unified, whole-of-nation response to the COVID-19 pandemic
among federal, state, local, and private-sector entities. The world is facing
an unprecedented pandemic. To effectively respond, there must be a more
consistent pathway for Covered Persons to manufacture, distribute,
administer or used Covered Countermeasures across the nation and the
world. Thus, there 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.
See id. at 8-9; RJN Exh. 5 at 58.
Under Grable, state law claims can invoke federal question jurisdiction if the claims
“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

3 Magnolia also cites a Western District of Louisiana case, Rachal v. Natchitoches Nursing &
Rehabilitation Ctr., LLC, No. 1:21-cv-00334 (W.D. La. Apr. 30, 2020) for the proposition that the PREP Act
completely preempts Plaintiffs’ state law claims. See Notice of Removal at 10-13. That decision does not bind this
Court.
judicial responsibilities.” 545 U.S. at 314. The Court would conclude that Plaintiffs’ claims in
the instant action do not implicate the PREP Act, and therefore do not invoke federal question
jurisdiction. Plaintiffs premise their state law causes of action on the allegations that Defendants
failed to implement effective infection control policies throughout the facilities, failed to provide
for Decedent’s health and safety including in ways unrelated to COVID-19, and failed to staff
their facilities properly and adequately. See, e.g., Complaint ¶¶ 24-25, 70-71. Plaintiffs do not,
as Magnolia contends, base their claims on Magnolia’s “purchasing, administration, dispensing,
prescribing, distribution and use of countermeasures, such as facemasks and other PPE and
testing equipment to prevent or mitigate the spread of COVID-19.” See Notice of Removal ¶ 10.
As such, Defendants’ alleged deficiencies, including their lack of effective infection control
policies, do not constitute covered countermeasures under the PREP Act. See Smith, 2021 WL
1087284, at *4 (Plaintiffs’ allegations “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 . . . refer to policies and a
failure to protect, not to any covered countermeasure, i.e., drug, product, or device” (quotation
omitted)); Padilla, 2021 WL 1549689, at *5 (“Defendant’s policies regarding social distancing,
use of medication for conditions unrelated to COVID-19, and reporting COVID-19 cases thus do
not constitute covered countermeasures under the PREP Act.”).
Additionally, the federal issue raised by Magnolia – PREP Act immunity – relates to
Magnolia’s defense, rather than the claims Plaintiffs allege. “As such, the federal issue is not
necessarily raised.” Stone, 2021 WL 1163572, at *7; see also Padilla, 2021 WL 1549689 at *6
(“immunity under the PREP Act is a defense, not a necessary aspect of Plaintiffs’ state law
claims”); Thomas v. Century Villa Inc., No. 2:21-cv-03013-MCS-KS, 2021 WL 2400970, at *6
(C.D. Cal. June 10, 2021) (“the PREP Act merely provides [Defendant] with a potential
affirmative defense to Plaintiffs’ claims” and therefore does not confer federal question
jurisdiction); McCalebb, 2021 WL 911951, at *6 (“Indeed, Defendant fails to distinguish
between the scope of preemption required to confer federal jurisdiction, on the one hand, and the
federal defense of preemption, on the other.”). Magnolia cannot remove this action to federal
court based on a federal defense, including the defense of preemption. Franchise Tax Bd., 463
U.S. at 13-14.
The Court would not find the Fourth Amended Declaration persuasive, as it merely states
“there are substantial federal legal and policy issues, and substantial federal legal and policy
interests within the meaning of [Grable] in having a uniform interpretation of the PREP Act”
without providing any legal support or analysis. See RJN Exh. 5 at 58. The Court would apply
the same reasoning to the HHS OGC’s January 8, 2021 Advisory Opinion, which indicates that
the “Fourth Amendment to the Secretary’s Declaration Supports the Grable Doctrine.” See RJN
Exh. 9 at 87-88. The Court therefore would not defer to the Fourth Amended Declaration and
the January 8, 2021 Advisory Opinion and hold that Grable confers federal question jurisdiction
over Plaintiffs’ claims. See Thomas, 2021 WL 2400970, at *6 (Amendment Four and the
Advisory Opinion do not persuade the court that the Grable doctrine grants federal jurisdiction
over plaintiffs’ state law claims); McCalebb, 2021 WL 911951, at *3 (“Neither the Secretary nor
the OGC provides any significant analysis of Grable’s narrow holding and its two-pronged test.
Deference to the Secretary’s jurisdictional assertion is not due, and adherence to his conclusory
assertion is not warranted.”).
The Court thus would conclude it does not have federal question jurisdiction over
Plaintiffs’ claims.
B. Federal Officer Jurisdiction
Finally, Magnolia argues the Court has jurisdiction over the case pursuant to 28 U.S.C. §
1442(a)(1), which permits removal of an action against “any officer (or any person acting under
that officer) of the United States or of any agency thereof.” See Notice of Removal at 19; 28
U.S.C. § 1442(a)(1). Magnolia states that it “was acting at the specific direction of federal
authorities to address the on-going federal effort and national state of emergency to contain the
COVID-19 pandemic, and prevent the spread of the virus.” See id. ¶ 61. Specifically, Magnolia
asserts it was acting “pursuant to the direct orders and comprehensive and detailed directives”
issued by the Centers for Disease Control and Prevention, the Centers for Medicare and
Medicaid Services, and the California Department of Public Health. See id.
The Court would find that federal officer jurisdiction does not apply in the instant case.
While the federal officer removal statute must be “liberally construed” in favor of removal and
the words “acting under” are broad, “[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.’” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147, 153
(2007). “And that is so even if the regulation is highly detailed and even if the private firm’s
activities are highly supervised and monitored.” Id. at 153. As such, 28 U.S.C. § 1442(a)(1)
does not apply here, where Magnolia removed the case based on its compliance with federal
orders and directives pertaining to COVID-19. See Thomas, 2021 WL 2400970, at *7;
McCalebb, 2021 WL 911951, at *6-7; Golbad, 2021 WL 1753624, at *2; Smith, 2021 WL
1087284, at *8.
Accordingly, the Court would conclude that it lacks subject matter jurisdiction over
Plaintiffs’ claims.
IV. Conclusion
Based on the foregoing discussion, the Court would remand the matter to state court for
lack of subject matter jurisdiction. The Court would deny as moot Magnolia’s motion to
dismiss.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10041238. Public record. Not legal advice.