Opinion

Alejandro Martinez Olivares v. BMS Healthcare, Inc

Court
District Court, C.D. California
Filed
Aug 9, 2021
Cited by
0 cases
Authority
More cited than 18.0%

The opinion

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-6298-DMG (JEMx) Date August 9, 2021

Title Alejandro Martinez Olivares, et al. v. BMS Healthcare, Inc., et al. Page 1 of 2

Present: The Honorable DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

KANE TIEN NOT REPORTED

Deputy Clerk Court Reporter

Attorneys Present for Plaintiff(s) Attorneys Present for Defendant(s)

None Present None Present

Proceedings: IN CHAMBERS—ORDER TO SHOW CAUSE WHY THIS ACTION

SHOULD NOT BE REMANDED TO LOS ANGELES COUNTY

SUPERIOR COURT

On May 11, 2021, Plaintiff Alejandro Martinez Olivares, by and through his successor-in-

interest Anabel Martinez, and Anabel Martinez, individually, filed a Complaint in Los Angeles

County Superior Court against BMS Healthcare, Inc. dba El Rancho Vista Health Care Center and

Mordechai Stock alleging claims for (1) elder abuse and neglect in violation of California Welfare

and Institutions Code section 15600 et seq.; (2) violation of patient rights under California Health

& Safety Code section 1430(b); (3) negligence; and (4) wrongful death.1 [Doc. # 4-1.] Defendants

were served with the Complaint via substitute service effective June 25, 2021. Not. of Removal

(“NOR”) at ¶ 6 [Doc. # 1.] On August 4, 2021, Defendants removed the action to this Court,

asserting federal question jurisdiction under the Public Readiness and Emergency Preparedness

(“PREP”) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, and federal officer removal jurisdiction under 28

U.S.C. section 1442(a)(1). NOR at ¶¶ 10, 78.

Under 28 U.S.C. section 1446, a notice of removal must be filed within 30 days of the

defendant’s receipt of a copy of the initial pleading. 28 U.S.C. § 1446(b)(1). “[A] party seeking

to remove a case to federal court has the burden of proving that all the requirements of removal

have been met. That burden goes not only to the issue of federal jurisdiction, but also to questions

of compliance with statutes governing the exercise of the right of removal.” See Parker v. Brown,

570 F. Supp. 640, 642 (S.D. Ohio 1983); accord Riggs v. Plaid Pantries, Inc., 233 F. Supp. 2d

1260, 1264 (D. Or. 2001).

1 Javier Martinez, Jose Martinez, Ruben Martinez, Victor Martinez, Laura Martinez, Lilia Martinez, Martha

Martinez, Magdalena Lozano, Armando Lozano, Vanessa Lozano, Tereza Martinez-Brown, Dave Martinez, and

Gissell Martinez are nominal defendants named for purposes of service only.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. CV 21-6298-DMG (JEMx) Date August 9, 2021

Title Alejandro Martinez Olivares, et al. v. BMS Healthcare, Inc., et al. Page 2 of 2

Defendants filed their Notice of Removal on August 4, 2021, more than 30 days after

service on both Defendants became effective on June 25, 2021. Defendants have not explained

why removal is proper even though the Notice of Removal was filed late. NOR at ¶¶ 6-7.

In addition, this Court has previously held in a similar case that the PREP Act is not a

complete preemption statute and that assertion of a defense under the PREP Act does not suffice

to confer federal question subject matter jurisdiction over a removed action under 28 U.S.C.

sections 1331 and 1441. See Padilla v. Brookfield Healthcare Ctr., No. CV 21-2062-DMG (ASX),

2021 WL 1549689, at *2-6 (C.D. Cal. Apr. 19, 2021). Moreover, in a case cited in Padilla, i.e.,

Lyons v. Cucumber Holdings, LLC, No. CV 20-10571-JFW (JPRx), 2021 WL 364640 (C.D. Cal.

Feb. 3, 2021), another court in this district found no federal officer removal jurisdiction for a

defendant nursing facility and company owner based solely on implementation of federal COVID-

19 policies. Id. at *3.

In light of Defendants’ failure to timely file their Notice of Removal and the reasoning set

forth in Padilla and Lyons, the Court hereby ORDERS Defendants to SHOW CAUSE why this

case should not be remanded to Los Angeles County Superior Court for failure to comply with 28

U.S.C. section 1446 and for lack of subject matter jurisdiction. Defendants shall file a response

by no later than August 16, 2021. Failure to timely file a satisfactory response by this date

will result in the remand of this action to state court.

IT IS SO ORDERED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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