The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 JAMES ZALMAN, individually and as No. 2:21-cv-01395-TLN-DB
heir and successor in interest to MARTHA
12 PARMELEE,
13 Plaintiff, ORDER
14 v.
15 WINDSOR VALLEJO CARE CENTER,
LLC dba WINDSOR VALLEJO
16 NURSING & REHABILITATION
CENTER; DOES 1–50; and DOES 51–60,
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Defendants.
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19 This matter is before the Court on Defendant Windsor Vallejo Care Center, LLC’s
20 (“Defendant”) Motion to Dismiss (ECF No. 3) and Plaintiff James Zalman’s (“Plaintiff”) Motion
21 to Remand (ECF No. 6). Both parties filed oppositions and replies. (ECF Nos. 6, 8, 11.) For the
22 reasons set forth below, Plaintiff’s motion is GRANTED and Defendant’s motion is DENIED as
23 moot.
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1 I. FACTUAL AND PROCEDURAL BACKGROUND
2 The instant case arises from Defendant’s alleged neglect and deliberate disregard for the
3 health and safety of Martha Parmelee, who was a resident at Defendant’s skilled nursing facility.
4 (See ECF No. 1-1.) Plaintiff alleges that as a result of Defendant’s abuse and neglect, Martha
5 Parmelee contracted COVID-19, which caused her pain and suffering and led to her rapid decline
6 and untimely death on September 14, 2020. (Id. at 4–5.) Plaintiff filed this action in Solano
7 County Superior Court on June 14, 2021, alleging claims for elder abuse, negligence, and
8 wrongful death. (Id. at 3.) Defendant removed the action to this Court on August 5, 2021. (ECF
9 No. 1.) Plaintiff filed the instant motion on September 10, 2021. (ECF No. 6.)
10 II. STANDARD OF LAW
11 28 U.S.C. § 1441 permits the removal to federal court of any civil action over which “the
12 district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Removal is
13 proper only if the court could have exercised jurisdiction over the action had it originally been
14 filed in federal court.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
15 Courts “strictly construe the removal statute against removal jurisdiction,” and “the
16 defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980
17 F.2d 564, 566 (9th Cir. 1992) (per curiam). Furthermore, “[i]f the district court at any time
18 determines that it lacks subject matter jurisdiction over the removed action, it must remedy the
19 improvident grant of removal by remanding the action to state court.” California ex rel. Lockyer
20 v. Dynegy, Inc., 375 F.3d 831, 838, as amended, 387 F.3d 966 (9th Cir. 2004), cert. denied, 544
21 U.S. 974 (2005).
22 The “presence or absence of federal question jurisdiction is governed by the ‘well-pleaded
23 complaint rule,’ which provides that federal jurisdiction exists only when a federal question is
24 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc., 482 U.S. at
25 386. Removal cannot be based on a defense, counterclaim, cross-claim, or third party claim
26 raising a federal question, whether filed in state court or federal court. See Vaden v. Discover
27 Bank, 556 U.S. 49 (2009); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042–43 (9th Cir. 2009).
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1 A corollary to the “well-pleaded complaint rule” is the “complete preemption” doctrine.
2 Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987). Under this doctrine, the
3 preemptive force of a federal statute may be strong enough to convert state law claims into
4 federal claims. Id. Complete preemption recognizes the importance of creating a single body of
5 federal law for areas that would likely “be affected by separate systems of substantive law.” See
6 Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962).
7 III. ANALYSIS
8 Plaintiff argues the Public Readiness and Emergency Preparedness (“PREP”) Act does not
9 “completely preempt” the state law claims in the Complaint to serve as a basis for federal
10 jurisdiction. (ECF No. 6 at 17–18.) Specifically, Plaintiff contends the available remedy to an
11 injured plaintiff under the PREP Act is an administrative process through the Covered
12 Countermeasure Process Fund administered by the Secretary of Health and Human Services
13 (“HHS”), and therefore the PREP Act does not create original jurisdiction in the federal courts.1
14 (Id. at 19, 21 (citing 42 U.S.C. §§ 247d-6e(a), 247d-6e(b)(1)).)
15 In opposition, Defendant asserts “the PREP Act provides for broad immunity, preempts
16 conflicting state laws, creates an exclusive federal cause of action for willful misconduct to be
17 heard in an exclusive federal venue, and establishes an administrative remedy supported by a no-
18 fault benefits compensation fund.” (ECF No. 8 at 13 (citing 42 U.S.C. §§ 247d-6d(a)(1)–(2),
19 (d)(1), (e)(1), (e)(5), 247d-6e(d)(1)).) Defendant also asserts that the declarations of the HHS
20 Secretary and the HHS Office of General Counsel Advisory Opinions stating that the PREP Act
21 completely preempts state law “must be given Chevron controlling weight.” (Id. at 19–20 (citing
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1 Plaintiff argues Defendant has alleged a form of Garmon preemption, which the Ninth
24 Circuit has found cannot sustain a claim of complete preemption. (ECF No. 6 at 21–23 (citing
San Diego Bldg. Trade Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236, 245
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(1959)).) Because Defendant does not address this argument in its opposition, the Court declines
to address arguments related to the issue herein. The parties also dispute whether the PREP Act
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falls within the Grable doctrine. (ECF No. 6 at 23–24; ECF No. 8 at 14–15 (citing Grable &
27 Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 315 (2005)).) The Court declines
to address arguments related to this issue as well because it is not necessary for resolution of the
28 instant motion.
1 Chevron USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)).)2 Defendant
2 maintains the PREP Act explicitly states an intention to preempt state control of these issues, as it
3 provides that:
4 [N]o State . . . may establish, enforce, or continue in effect with
respect to a covered countermeasure any provision of law or legal
5 requirement that . . . (A) is different from, or is in conflict with, any
requirement applicable under this section; and (B) relates to the . . .
6 use, . . . dispensing, or administration by qualified persons of the
covered countermeasure.
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8 (Id. at 17 (citing 42 U.S.C. § 247d-6d(b)(8)).)
9 Plaintiff did not file a reply, but filed a notice of supplemental authority in which he
10 highlights Ninth Circuit cases that affirm district court orders granting plaintiffs’ motions to
11 remand based on the fact that plaintiffs’ claims were not completely preempted by the PREP Act.
12 (ECF No. 13 at 1 (citing Saldana v. Glenhaven Healthcare, LLC, 27 F.4th 679 (9th Cir. 2022);
13 Martin v. Filart, No. 20-56067, 2022 WL 576012 (9th Cir. Feb. 25, 2022)).) Plaintiff notes the
14 Ninth Circuit in both Saldana and Martin unanimously denied the petition for panel rehearing and
15 for rehearing en banc. (Id. at 2.)
16 The PREP Act provides that “a covered person shall be immune from suit and liability
17 under Federal and State law with respect to all claims caused by, arising out of, relating to, or
18 resulting from the administration to or the use by an individual of a covered
19 countermeasure . . . .” 42 U.S.C. § 247d-6d(a)(1). It also provides that if the HHS Secretary
20 “makes a determination that a disease or other health condition or other threat to health
21 constitutes a public health emergency . . . the Secretary may make a declaration . . .
22 recommending . . . the manufacture, testing, development, distribution, administration, or use of
23 one or more covered countermeasures[.]” Id. § 247d-6d(b)(1). The PREP Act also established
24 the Covered Countermeasure Process Fund “for purposes of providing timely, uniform, and
25 adequate compensation to eligible individuals for covered injuries directly caused by the
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2 In short, the Supreme Court held in Chevron that where “legislative delegation to an
27 agency on a particular question is implicit rather than explicit . . . a court may not substitute its
own construction of a statutory provision for a reasonable interpretation made by the
28 administrator of an agency.” 467 U.S. at 844.
1 administration or use of a covered countermeasure pursuant to such a declaration[.]” Id. § 247d-
2 6e(a).
3 The Ninth Circuit has indeed held the PREP Act is not a complete preemption statute.
4 Saldana, 27 F.4th at 688. Specifically, the court found that Congress did not intend to displace a
5 state law cause of action nor did it provide a substitute cause of action, as “[t]he text of the statute
6 shows that Congress intended a federal claim only for willful misconduct claims and not claims
7 for negligence and recklessness.” Id. (citing 42 U.S.C. § 247d-6d(c)(1)(B)). Further, the court
8 noted that “[a]n administrative compensation fund, not an exclusive federal cause of action,
9 provides the only redress for claims brought under the Act, other than those alleging ‘willful
10 misconduct.’” Id. The court also rejected the defendant’s complete preemption argument based
11 on the HHS Secretary’s and the HHS Office of General Counsel’s conclusions that the PREP Act
12 is a complete preemption statute, noting that complete preemption is jurisdictional and “an
13 agency’s opinion on federal court jurisdiction is not entitled to Chevron deference.” Id. at 687.
14 The Ninth Circuit, citing its decision in Saldana, also found that the PREP Act did not completely
15 preempt a plaintiff’s claims for elder abuse and neglect, negligence, wrongful death, fraudulent
16 concealment, and fraudulent misrepresentation, as the PREP Act “is not one of those ‘rare’
17 statutes ‘where a federal statutory scheme is so comprehensive that it entirely supplants state law
18 causes of action.’” Martin, 2022 WL 576012, at *1 (citing Saldana, 27 F.4th at 688).
19 In light of the foregoing case law, the Court agrees with Plaintiff that the PREP Act does
20 not completely preempt the claims in the Complaint. Specifically, the Court finds that Plaintiff’s
21 claims for elder abuse, negligence, and wrongful death are not completely preempted as the PREP
22 Act does not “entirely supplant[] state law causes of action” and Plaintiff’s claims do not allege
23 willful misconduct. Saldana, 27 F.4th at 687–88. The Court further rejects Defendant’s
24 argument that the HHS Secretary’s declarations and the HHS Office of General Counsel Advisory
25 Opinions are entitled to Chevron deference. Id. at 687. Finally, the Court notes that Defendant
26 does not assert any other basis for federal jurisdiction besides complete preemption of the PREP
27 Act. (See ECF Nos. 1, 8.) Accordingly, Plaintiff’s motion to remand is GRANTED.
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1 IV. CONCLUSION
2 Based on the foregoing, the Court hereby GRANTS Plaintiff's Motion to Remand (ECF
3 | No. 6) and DENIES Defendant’s Motion to Dismiss as moot (ECF No. 3). The case is remanded
4 | to Solano County Superior Court and the Clerk of the Court is directed to close the case.
5 IT IS SO ORDERED.
6 | DATED: July 22, 2022
7 ry /
8 “ the
10 United States District Judge
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