Sorace v. Orinda Care Center, LLC

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 OLGA SORACE, et al., Case No. 21-cv-05714-EMC

8 Plaintiffs,

ORDER GRANTING PLAINTIFFS’

9 v. MOTION TO REMAND, AND

DENYING DEFENDANTS’ MOTION

10 ORINDA CARE CENTER, LLC, et al., TO DISMISS

11 Defendants. Docket Nos. 8, 18

12

13

14 On May 13, 2021, Plaintiffs Olga Sorace, deceased, by and through her personal legal

15 representative and successor in interest, Essie Bracknell, and Essie Bracknell, individually,

16 (“Plaintiff/Plaintiffs”) filed this action in Contra Costa County Superior Court. Notice of Removal

17 (State Court Complaint) at 63, Docket No. 1. On July 26, 2021, Defendants Orinda Care Center,

18 LLC, Renew Health Group, LLC, Larry Goldfarb, Crystal Solorzano, Does 1-25, inclusive,

19 Michael Sorace, Sonya Kolinsky, and John Bracknell (“Defendants”) filed a Notice of Removal in

20 this Court.1 Docket No. 1. On August 2, 2021, Defendants filed a Motion to Dismiss. Defs.

21 MTD, Docket No. 8. On August 16, 2021, Plaintiffs filed a Motion to Remand the matter. Pls.

22 MTR, Docket No. 18. On September 18, 2021, the Court temporarily vacated the hearing on

23 Defendants’ Motion to Dismiss so as to hear the Motion to Remand first. Clerk’s Notice, Docket

24 No. 22. Currently pending before the Court are Defendants’ Motion to Dismiss and Plaintiffs’

25 Motion to Remand. For the following the reasons, the Court GRANTS Plaintiffs’ Motion to

26 Remand and DENIES AS MOOT Defendants’ Motion to Dismiss.

27

1 I. BACKGROUND

2 Plaintiff Essie Bracknell is the natural daughter of Olga Sorace. Pls. MTR at 1. Notably,

3 Plaintiff filed a complaint in Contra Costa Superior Court alleging claims for: (1) elder abuse and

4 neglect in violation of California Welfare and Institutions Code §§ 15600, et. seq.; (2) violations

5 of patient rights pursuant to California Health and Safety Code § 1430(b); (3) negligence; and (4)

6 wrongful death. Notice of Removal (State Court Complaint) at 1. In her complaint, Plaintiff

7 alleges that Olga Sorace (the “Decedent”) was admitted to the Orinda Care Center, a skilled

8 nursing facility, for long-term care in 2014. Compl. ¶ 38. Plaintiff notes that the Decedent had a

9 “history of Alzheimer’s dementia, unsteady gait, hearing problems, balance problems, impaired

10 communication, weakness, impaired cognition, hypertension, and impaired physical mobility.

11 Additionally, she was labeled a fall risk.” Id. ¶ 39. Plaintiff states that because of her physical

12 and mental condition, the Decedent “was dependent on others for her activities of daily living

13 including, but not limited to, personal hygiene, continence care, transferring in and out of bed,

14 eating, drinking, and managing medication.” Id. Plaintiff specifically alleges that Defendants

15 failed to properly assess and gather information to make decisions about suitable interventions “to

16 avoid individualized health risks.” Id. ¶ 40. Additionally, Plaintiff claims that Defendants failed

17 to assess the Decedent, “update her care plans regarding dehydration, provide her with assistance

18 with feeding and drinking, and failed to monitor her signs and symptoms of dehydration and

19 malnutrition.” Id. ¶ 45. Plaintiff further alleges that Defendants’ employees began to fail to show

20 up for work and as a result of understaffing, Defendants “failed to provide required care to the

21 facilit[y’s] residents and placed them in harm’s way.” Id. ¶ 49. The complaint implies that

22 because of Defendants’ aforementioned neglect and failure to provide adequate care due to

23 understaffing, the Decedent contracted COVID-19 and had to be transported to John Muir Medical

24 Center. Id. ¶¶ 49-52. Plaintiff claims that the neglect, elder abuse, and inadequate staffing

25 ultimately resulted in the Decedent’s death on April 18, 2020. Id. ¶ 53.

26 As for Plaintiff’s first cause of action, she is seeking: compensatory damages, special

27 damages including past hospital, medical, professional, and incidental expenses, interest on

1 for Relief ¶ 1. As for the second cause of action, Plaintiff is seeking statutory damages and

2 attorney’s fees. Id. ¶ 2. As for the third and fourth causes of actions, Plaintiff requests

3 compensatory damages, special damages including funeral and burial expenses, medical and

4 incidental expenses according to proof, and for interest on any compensatory damages. Id. ¶ 2.

5 As noted above, on July 26, 2021, Defendants removed this case to this Court, asserting

6 subject matter jurisdiction on three grounds: (1) Plaintiff’s claims are completely preempted by

7 the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247-6d and

8 247-6e; (2) the action raises a substantial and important federal issue, citing Grable & Sons Metal

9 Products v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); and (3) removal is proper

10 under the federal officer statute (28 U.S.C. § 1442(a)(1)) because Defendant was acting under the

11 direction of a federal officer when it engaged in the allegedly tortious conduct. See Notice of

12 Removal, Docket No. 1. Plaintiff challenges the removal of this action and moves to remand the

13 matter back to Contra Costa County Superior Court. See Motion to Remand, Docket No. 18.

14 II. LEGAL STANDARD

15 A. Removal

16 A defendant may remove an action to federal court only where there is either complete

17 diversity among the parties or federal question jurisdiction. 28 U.S.C. § 1441. Federal question

18 jurisdiction exists over all civil actions arising under the Constitution, laws, or treaties of the

19 United States. Id. § 1331. Removal is proper if the case could have originally been filed in

20 federal court. Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1004 (9th Cir. 2001).

21 The “well-pleaded complaint” rule requires a federal question to be present on the face of

22 the complaint at the time of removal for federal question jurisdiction to exist. Duncan v. Stuetzle,

23 76 F.3d 1480, 1485 (9th Cir. 1996). Causes of action “arise under” federal law in accordance with

24 28 U.S.C. § 1331 if federal law creates the cause of action or the complaint necessarily depends on

25 a substantial question of federal law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

26 808 (1988). Federal jurisdiction cannot rest upon an actual or anticipated defense or counterclaim.

27 Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). “The burden of establishing federal subject

1 Traction Co., 581 F.3d 941, 944 (9th Cir. 2009) (citing Toumajian v. Frailey, 135 F.3d 648, 652

2 (9th Cir. 1998)). Notably, there is a “strong presumption against removal jurisdiction,” and courts

3 must reject it “if there is any doubt as to the right of removal in the first instance.” Geographic

4 Expeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010) (quoting

5 Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam)) (internal quotation marks

6 omitted).

7 III. DISCUSSION

8 Here, the complaint does not assert a federal claim for relief. The claims are all based on

9 state law. Defendants argue that this Court has subject matter jurisdiction on three independent

10 grounds: (1) complete preemption under the PREP Act; (2) embedded question of federal law

11 under the Grable doctrine; and (3) federal officer removal. Plaintiffs contend that none of these

12 grounds applies here.

13 At the outset, it is noteworthy that several courts in the Central and Southern Districts of

14 California have addressed these questions in the context of state law tort suits arising out of

15 COVID-19 deaths in care facilities. See, e.g., Martin v. Serrano Post Acute LLC, No. 20-cv-5937,

16 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. Glenhaven Healthcare

17 LLC, No. 20-cv-5631, 2020 WL 6713995, at *1 (C.D. Cal. Oct. 14, 2020) (appeal filed Nov. 13,

18 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-cv-09746, 2021 WL 911951, at *1 (C.D.

19 Cal. Mar. 1, 2021) (appeal filed Mar. 31, 2021); Smith v. Colonial Care Ctr., Inc., No. 2:21-cv-

20 00494, 2021 WL 1087284, at *1 (C.D. Cal. Mar. 19, 2021) (appeal filed Apr. 19, 2021); Stone v.

21 Long Beach Healthcare Ctr., LLC, No. 21-cv-326, 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26,

22 2021); Winn v. California Post Acute LLC, No. 21-cv-02854, 2021 WL 1292507, at *1 (C.D. Cal.

23 Apr. 6, 2021) (appeal filed May 7, 2021). In each of these cases, the district court found that it

24 lacked subject matter jurisdiction and remanded the case to state court. Defendants argue that

25 these courts too narrowly interpret the PREP Act and misconstrue Congress’s and HHS’s intent.

26 Opp’n at 19, Docket No. 23.

27 A. Complete Preemption

1 complaint rule known as the complete pre-emption doctrine.’ ” Retail Prop. Tr. v. United Bhd. of

2 Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) (quoting Caterpillar Inc. v.

3 Williams, 482 U.S. 386, 393, 107 S.Ct. 2425 (1987)). The complete preemption “doctrine posits

4 that there are some federal statutes that have such ‘extraordinary pre-emptive power’ that they

5 ‘convert[ ] an ordinary state common law complaint into one stating a federal claim for purposes

6 of the well-pleaded complaint rule.’ ” Retail Prop. Tr., 768 F.3d at 947 (quoting Metro. Life Ins.

7 Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Complete preemption refers to the situation in which

8 federal law not only preempts a state-law cause of action, but also substitutes an exclusive federal

9 cause of action in its place.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir. 2018)

10 (citations omitted). “Thus, a state claim may be removed to federal court . . . when a federal

11 statute wholly displaces the state-law cause of action through complete pre-emption.” Beneficial

12 Nat. Bank v. Anderson, 539 U.S. 1, 8 (2003) (fns. omitted).

13 The Ninth Circuit has instructed that “complete preemption is ‘rare’ ” and has recognized

14 that “[o]ther circuits unanimously agree.” Hansen, 902 F.3d at 1057 (citing Retail Prop. Tr., 768

15 F.3d at 947, ARCO Envtl. Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213

16 F.3d 1108, 1114 (9th Cir. 2000), Griffioen v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182,

17 1189 (8th Cir. 2015), Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 360 n.9 (6th Cir. 2015),

18 Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir. 2013), and Cmty. State Bank v. Strong, 651

19 F.3d 1241, 1261 n.16 (11th Cir. 2011)). Notably, the Supreme Court has identified only three

20 statutes that completely preempt state law claims: (1) § 301 of the Labor Management Relations

21 Act (the LMRA), 29 U.S.C. § 185; (2) § 502(a) of the Employee Retirement Income Security Act

22 of 1974 (ERISA), 29 U.S.C. § 1132(a); and (3) §§ 85 and 86 of the National Bank Act, 12 U.S.C.

23 §§ 85, 86. City of Oakland v. BP PLC, 969 F.3d 895, 905-06 (9th Cir. 2020).

24 Moreover, in the Ninth Circuit, “complete preemption for purposes of federal jurisdiction

25 under § 1331 exists when Congress: (1) intended to displace a state-law cause of action, and (2)

26 provided a substitute cause of action.” Id. (citing Hansen, 902 F.3d at 1057). As such, before

27 complete preemption can apply to a plaintiff’s state law claims, “the claims at issue must fall

1 4815099, at *3-4 (D. Kan. Aug. 19, 2020) (citing Beneficial Nat. Bank v. Anderson, 539 U.S. at 9

2 n.5 ).

3 The party invoking federal jurisdiction bears the burden of demonstrating that the federal

4 statute applies and completely preempts at least one of the other party’s state law claims. See

5 Reiten v. CIGNA Health & Life Ins. Co., No. 20-cv-2330, 2020 WL 1862462, at *3 (C.D. Cal.

6 Apr. 14, 2020) (“As the party seeking to invoke federal jurisdiction, [the defendant] bears the

7 burden of proving that [the] plaintiff’s claim is completely preempted.”); see also Smallwood v.

8 Allied Van Lines, Inc., 660 F.3d 1115, 1120 (9th Cir. 2011) (“[T]he district court had subject

9 matter jurisdiction if at least one of [the plaintiff's] claims was completely preempted by the

10 [federal statute].”).

11 1. The PREP Act

12 Here, Defendants assert that the PREP Act provides for complete preemption. The Court

13 thus first describes the Act. If the Secretary (the “Secretary”) of the Department of Health and

14 Human Services (“HHS”) “determin[es] that a disease or other health condition or other threat to

15 health constitutes a public health emergency,” the PREP Act gives the Secretary the authority to

16 “make a declaration, through publication in the Federal Register, recommending, under conditions

17 as the Secretary may specify, the manufacture, testing, development, distribution, administration,

18 or use of one or more covered countermeasures …” 42 U.S.C. § 247d-6d(b)(1). Notably, the

19 Secretary issued such a declaration with respect to the ongoing COVID-19 pandemic. See

20 Declaration Under the Public Readiness and Emergency Preparedness Act for Medical

21 Countermeasures Against COVID-19, 85 Fed. Reg. 15198, 15198 (Mar. 17, 2020) (the

22 “Declaration”). The PREP Act provides immunity from liability with respect to the administration

23 or use of a recommended covered countermeasure.

24 To date, the Secretary has issued nine amendments to the Declaration. See First Amended

25 Decl., 85 Fed. Reg. 21012 (Apr. 15, 2020); Second Amended Decl., 85 Fed. Reg. 35100 (June 8,

26 2020); Third Amended Decl., 85 Fed. Reg. 52136 (Aug. 24, 2020); Fourth Amended Decl., 85

27 Fed. Reg. 79190 (Dec. 9, 2020); Fifth Amended Decl., 86 Fed. Reg. 7872 (Feb. 2, 2021); Sixth

1 1446202 (Mar. 11, 2021); Eighth Amended Decl., 86 Fed. Reg. 41977 (Aug. 4, 2021); and Ninth

2 Amended Decl., 86 Fed. Reg. 51160 (Sept. 14, 2021).2

3 The PREP Act defines a “covered countermeasure” as (1) a “qualified pandemic or

4 epidemic product,” (2) a “security countermeasure,” (3) a drug, biological product, or device that

5 is authorized for emergency use, or (4) a “respiratory protective device that is approved by the

6 National Institute for Occupational Safety and Health . . ., and that the Secretary determines to be

7 a priority for use during a public health emergency[.]” 42 U.S.C. § 247d-6d(i)(1). The

8 Declaration explains that a covered countermeasure includes “any antiviral, any other drug, any

9 biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or

10 mitigate COVID-19,” or “any device used in the administration of any such product, and all

11 components and constituent materials of any such product.” Declaration at 15202.

12 Particularly relevant to Defendants’ position is the Fourth Amendment to the Declaration

13 in which the Secretary defined the “administration” of a covered countermeasure as follows:

14 Administration of the Covered Countermeasure means physical

provision of the countermeasures to recipients, or activities and

15 decisions directly relating to public and private delivery, distribution

and dispensing of the countermeasures to recipients, management

16 and operation of countermeasure programs, or management and

operation of locations for the purpose of distributing and dispensing

17 countermeasures.

18 Where there are limited Covered Countermeasures, not

administering a Covered Countermeasure to one individual in order

19 to administer it to another individual can constitute “relating to . . .

the administration to . . . an individual” under 42 U.S.C. 247d-6d.

20 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

21 person in a less vulnerable population both request it from a

healthcare professional. In that situation, the healthcare professional

22 administers the one dose to the person who is more vulnerable to

COVID-19. In that circumstance, the failure to administer the

23 COVID-19 vaccine to the person in a less-vulnerable population

“relat[es] to . . . the administration to” the person in a vulnerable

24 population. The person in the vulnerable population was able to

receive the vaccine only because it was not administered to the

25 person in the less-vulnerable population. Prioritization or

purposeful allocation of a Covered Countermeasure, particularly if

26 done in accordance with a public health authority’s directive, can

27

fall within the PREP Act and this Declaration’s liability protections.

1

2 85 Fed. Reg. at 79197.

3 Notably, the PREP Act’s immunity provision provides that “a covered person shall be

4 immune from suit and liability under Federal and State law with respect to all claims for loss

5 caused by, arising out of, relating to, or resulting from the administration to or the use by an

6 individual of a covered countermeasure[.]” 42 U.S.C. § 247d-6d(a)(1). The PREP Act’s

7 immunity provision provides as follows:

8 The immunity under paragraph (1) applies to any claim for loss that

has a causal relationship with the administration to or use by an

9 individual of a covered countermeasure, including a causal

relationship with the design, development, clinical testing or

10 investigation, manufacture, labeling, distribution, formulation,

packaging, marketing, promotion, sale, purchase, donation,

11 dispensing, prescribing, administration, licensing, or use of such

countermeasure.

12

42 U.S.C. § 247d-6d(a)(2)(B). If the PREP Act applies, the only remedies available to an injured

13

person are: (i) compensation for covered injuries from an administrative “Covered

14

Countermeasures Process Fund” administered by the Secretary, or (ii) an action filed in the U.S.

15

District Court for the District of Columbia if there is “death or serious physical injury proximately

16

caused by willful misconduct.” 42 U.S.C. §§ 247d-6d(d)(1), 247d-6e. It does not provide

17

generally for a federal claim that can be brought in district court.

18

2. Applicability of the PREP Act

19

Before addressing the more global question of complete preemption, the Court notes that it

20

spears that Plaintiffs’ claims do not even fall within the scope of the PREP Act. Plaintiffs allege

21

that Decedent’s death was the result of Defendants’ inaction with regard to her individualized care

22

plan (hydration, nutrition, etc.) and inadequate staffing. Compl. ¶¶ 39-53. Defendants argue that

23

the PREP Act applies to Plaintiff’s claims because the Secretary’s Fourth Amendment makes clear

24

that the failure to use a covered countermeasure can fall within the PREP Act’s protections and

25

that the failure to properly implement an effective infection control program by its very nature

26

implicates the use of covered countermeasures such as, personal protective equipment and

27

COVID-19 testing. Opp’n at 10.

1 Although, the HHS Secretary’s Fourth Amendment makes clear that an “inaction claim” is

2 not necessarily beyond the scope of the PREP Act, such claims appear to only fall under the scope

3 of the PREP Act where: (1) there are limited covered countermeasures; and (2) there was a failure

4 to administer a covered countermeasure to one individual because it was administered to another

5 individual. 85 Fed. Reg. at 79197 (illustrating a causal relationship between (1) administering and

6 (2) not administering a covered countermeasure where person-A “was able to receive the [single

7 covered countermeasure] only because it was not administered to” person B). Therefore, pursuant

8 to the HHS Secretary’s Fourth Amendment, “there appears to only be immunity for ‘inaction

9 claims’ when the failure to administer a covered countermeasure to one individual has ‘a close

10 causal relationship’ to the administration of that covered countermeasure to another individual.”

11 Stone, 2021 WL 1163572, at *4 (citing Anson v. HCP Prairie Village KS Opco LLC, 2021 WL

12 308156 (D. Kan. Jan. 29, 2021)). For example, “[p]rioritization or purposeful allocation of a

13 Covered Countermeasure, particularly if done in accordance with a public authority’s directive,

14 can fall within the PREP Act and th[e] Declaration’s liability protections.” 85 Fed. Reg. at 79197.

15 However, “other ‘inaction claims’ may not.” Stone, 2021 WL 1163572, at *4.

16 Plaintiffs do not allege that the Decedent’s cause of death was causally connected to the

17 administration or use of any covered countermeasure in their complaint. Rather, Plaintiffs allege

18 that Decedent’s death was the result of Defendants’ inaction, not with respect to rationing a

19 covered countermeasure, but with regard to the Decedent’s general individualized care plan

20 (hydration, nutrition, etc.) and inadequate staffing. Compl. ¶¶ 39-53. Plaintiff’s complaint does

21 not explicitly allege that Defendants failed to create a proper infection control mechanism to avoid

22 the transmission of the COVID-19 virus or that Defendants failed to properly train staff with

23 regard to the COVID-19 virus and utilize personal protective equipment. Several district courts

24 have concluded this kind of inaction – where the plaintiff explicitly faults a nursing home

25 defendant for failing to create and maintain a proper infection control program during the

26 pandemic – do not fall within the scope of the PREP Act. See, e.g., Estate of McCalebb, 2021 WL

27 911951, at *1, 5 (concluding that the action does not appear to be about a purposeful allocation of

1 implement, and adhere to all CDC guidelines on how to protect and treat the decedent in light of

2 the risk of COVID-19, and where “the gravamen of the Complaint is that Defendant was generally

3 neglectful in operating the Facility”); Robertson v. Big Blue Healthcare, Inc., 2021 WL 764566, at

4 *2, 7-9 (D. Kan. Feb. 26, 2021) (concluding that inaction claims premised on a failure to take

5 preventative measures to stop the spread of COVID-19, including allegations that the defendants

6 failed to “follow proper infection control protocols” and “provide personal protective equipment

7 (‘PPE’) to staff” do not fall within the scope of the PREP Act).

8 The Court agrees. None of the Defendants’ conduct alleged by Plaintiffs qualifies as

9 administration or use of a covered countermeasure within the meaning of the PREP Act. There is

10 no causal connection between the injury and the use or administration of a covered

11 countermeasure. That the claims herein – typical of claims arising from alleged inadequate care in

12 facilities for the elderly – do not, on their face, fall within the purview of the PREP Act

13 underscores the thin thread upon which the claim of complete preemption rests.

14 3. Lack of Complete Preemption

15 The PREP Act does not provide a basis for complete preemption, because it does not

16 satisfy the Ninth Circuit’s two pronged complete preemption test. First, the PREP Act does not

17 completely replace state law claims related to COVID-19. As the above discussion demonstrates,

18 common claims of inadequate health care, even where resulting COVID-19 infections, do not fall

19 within the purview of the PREP Act. More specifically, numerous courts have held that the PREP

20 Act does not prevent a plaintiff from bringing state law claims based on an alleged failure to use

21 covered countermeasures. See, e.g., Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 2020

22 WL 4671091, at *1, *9 (D. N.J. Aug. 12, 2020) (holding that the failure to “observe a wide range

23 of appropriate safety precautions” “would not be preempted by the PREP Act, which is designed

24 to protect those who employ countermeasures, not those who decline to employ them”); Jackson,

25 2020 WL 4815099, at *8 (holding the PREP Act does not apply to “the non-administration or non-

26 use of covered countermeasures” and concluding that the PREP Act did not apply to the plaintiff’s

27 claims because “[d]efendants fail[ed] to point to any claim in the complaint where Plaintiff alleges

1 decedent's death”). As the court in Stone emphasized, “[t]hese cases plainly hold that the PREP

2 Act does not ‘wholly displace’ state law claims that implicate healthcare entities and COVID-19.”

3 Stone, 2021 WL 1163572, at *5 (citing Parker v. St. Jude Operating Co., LLC, 2020 WL

4 8362407, at *5 (D. Or. Dec. 28, 2020); Beneficial Nat'l Bank, 539 U.S. at 8).

5 Nor is the second prong of the Ninth Circuit’s complete preemption test satisfied; the

6 PREP Act does not provide a substitute cause of action for Plaintiff’s claims based on Defendants’

7 alleged negligence. See Estate of McCalebb, 2021 WL 911951. “Instead, when applicable, the

8 PREP Act provides immunity to defendants on state law negligence claims.” Parker, 2020 WL

9 8362407, at *5. As the district court in Estate of McCalebb, recently explained:

10 Other than for willful misconduct, Congress provided no federal

remedy that could be pursued through a federal cause of action.

11 Instead, Congress established an emergency fund to provide

adequate compensation to eligible individuals for covered injuries

12 directly caused by the administration or use of a covered

countermeasure. The HHS Secretary is responsible for establishing

13 procedures to administer this compensation program. The

Secretary's determination of eligibility and compensation under the

14 program is final and not subject to judicial review.

15 In this case, Plaintiffs have brought negligence claims. If their

negligence claims were preempted, then Plaintiffs would have to

16 look to the Secretary’s compensation program for relief. Under

Ninth Circuit law, such administrative relief is not the type of

17 displacement remedy that triggers complete preemption. For

purposes of complete preemption, the displacement remedy must

18 supply a federal cause of action. An administrative remedy will not

suffice because the complete-preemption doctrine rests on the theory

19 that any state claim within its reach is transformed into federal

claims. This transformation is the source of original federal

20 jurisdiction by supplying a federal cause of action.

21 The PREP Act does not create original federal jurisdiction over a

covered claim for negligence or recklessness. On the contrary,

22 Congress precluded it by vesting exclusive jurisdiction in the HHS

Secretary. In this circumstance, allowing removal to federal court on

23 complete-preemption grounds is internally inconsistent: the district

court must have jurisdiction for removal to be proper, but the court

24 must then dismiss the removed case because only the administrative

agency, not federal courts, have primary jurisdiction. Thus, the

25 PREP Act does not completely preempt such covered claims.

26 2021 WL 911951, at * 4 (internal quotations, citations, footnotes, and alterations omitted). Thus,

27 the PREP Act does not appear to satisfy the Ninth Circuit’s two-pronged complete preemption

1 More fundamentally, unlike the rare three instances in which Congress has found that the

2 need for uniformity of federal law is so compelling as to require complete preemption of the field

3 to the total exclusion of state law (see City of Oakland, 969 F.3d at 905-06), there is no indication

4 of such Congressional intent here. The purpose of the PREP Act is specific – to grant the

5 Secretary of HHS the authority to devise specific countermeasures in the face of a public health

6 crisis and encourage implementation of those countermeasures by providing immunity for

7 providers who implement those countermeasures.

8 It is therefore not surprising that nearly all courts addressing this issue have consistently

9 held that the PREP Act does not satisfy these requirements for complete preemption. See, e.g.,

10 Robin Roebuck v. Mayo Clinic, No. 21-cv-00510, 2021 WL 1851414, at *5 (D. Ariz. May 10,

11 2021) (“[T]he Court joins the growing consensus finding that the PREP Act is not a complete

12 preemption statute. The PREP Act does not satisfy the Ninth Circuit’s complete preemption test

13 because it does not completely replace state law claims related to COVID-19 and does not provide

14 a substitute cause of action for [Plaintiff’s] medical negligence claim.”); Golbad v. GHC of

15 Canoga Park, No. 2:21-cv-01967, 2021 WL 1753624, at *2 (C.D. Cal. May 4, 2021) (“[S]imply

16 put, the PREP Act does not satisfy the Ninth Circuit’s two-part complete preemption test.”);

17 Padilla v. Brookfield Healthcare Ctr., No. 21-cv-2062, 2021 WL 1549689, at *4 (C.D. Cal. Apr.

18 19, 2021) (“Nearly every other federal court addressing the issue of complete preemption has

19 found that the PREP Act is not a statute with complete preemptive effect.”); see also Bolton v.

20 Gallatin Ctr. for Rehab. & Healing, LLC, No. 3:20-cv-00683, 2021 WL 1561306, at *7 (M.D.

21 Tenn. Apr. 21, 2021) (“[N]early every district court to consider whether the PREP Act completely

22 preempts similar state-law claims against nursing homes has concluded the PREP Act is not a

23 complete preemption statute, or at least does not have such an effect on claims like those presented

24 here.”) (internal quotation marks and citation omitted).

25 To be sure, in the Fourth Amendment to the Declaration, the HHS Secretary: (1) opined

26 that “[t]here are substantial federal legal and policy issues, and substantial federal legal and policy

27 interests within the meaning of Grable & Sons Metal Products, Inc. v. Darue Eng’g. & Mf’g., 545

1 Declaration “must be construed in accordance with the Department of Health and Human Services

2 (HHS) Office of the General Counsel (OGC) Advisory Opinions on the Public Readiness and

3 Emergency Preparedness Act and the Declaration (Advisory Opinions)” and expressly

4 incorporated the Advisory Opinions for that purpose. 85 Fed. Reg. at 79191, 79197. On January

5 8, 2021, OGC issued an Advisory Opinion, which opined that the PREP Act “is a ‘complete

6 preemption’ statute” because it establishes “a federal cause of action, administrative or judicial, as

7 the only viable claim.” HHS OGC Advisory Opinion 21-01 at 2.3 The January 8, 2021 Advisory

8 Opinion also opined that “the Fourth Amendment to the Secretary’s Declaration supports the

9 Grable doctrine.” Id. at 4. The Advisory Opinion, however, cautions that “[i]t is not a final

10 agency action or a final order. It does not have the force or effect of law.” Id. at 5.

11 However, the Court is not persuaded this Opinion changes the analysis. “[T]he Office of

12 the General Counsel interpretation is not entitled to Chevron deference.” Dupervil v. Alliance

13 Health Operations, 516 F. Supp. 3d 238, 252 (E.D. N.Y. Feb. 2, 2021). It is not a duly

14 promulgated regulation interpreting the statute. See United States v. Mead Corp., 533 U.S. 218,

15 226-27, (2001) (deciding that no Chevron deference is due where an agency’s rule or opinion was

16 not “promulgated in the exercise of” any delegated congressional authority). Instead, it is entitled

17 only to the limited difference afforded by Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See

18 id. (In applying the Fair Labor Standards Act, the Supreme Court explained that “[w]e consider

19 that the rulings, interpretations and opinions of the Administrator under this Act, while not

20 controlling upon the courts by reason of their authority, do constitute a body of experience and

21 informed judgement to which courts and litigants may properly resort for guidance. [However,]

22 [t]he weight of such a judgment in a particular case will depend upon the thoroughness evident in

23 its consideration, the validity of its reasoning, its consistency with earlier and later

24 pronouncements, and all those factors which give it power to persuade, if lacking power to

25 control.”). The Advisory Opinion is not persuasive. Both the Supreme Court and the Ninth

26

3 The Department of Health & Human Services, Advisor Opinion 21-01 On the Public Readiness

27

and Emergency Preparedness Act Scope of Preemption Provision (Jan. 8, 2021),

1 Circuit have held that a federal statute is completely preemptive only where it provides an

2 exclusive federal cause of action; yet, the Advisory opinion fails to cite any case law for its

3 proposition that an exclusive federal administrative remedy is sufficient to implicate complete

4 preemption. The Advisory Opinion “lacks the ‘power to persuade.’” Dupervil, 516 F. Supp. 3d at

5 252 (quoting Skidmore, 323 U.S. at 140); see also Evon Smith v. Colonial Care Center, Inc., 2021

6 WL 1087284, at *6 (C.D. Cal. Mar. 19, 2021) (finding that the defendants’ argument that the

7 plaintiff’s claims were completely preempted because of the Advisory Opinion was contrary to

8 law and as such, “the OGC’s January 8, 2021 Advisory Opinion lacks the power to persuade”);

9 Estate of McCalebb, 2021 WL 911951, at *3 (“Neither the Secretary nor the OGC provides any

10 significant analysis of Grable’s narrow holding and its two-pronged test. Deference to the

11 Secretary’s jurisdictional assertion is not due, and adherence to his conclusory assertion is not

12 warranted.”).

13 Defendants also rely on Garcia, 522 F. Supp. 3d 734 and Rachal, 2021 U.S. Dist. LEXIS

14 105847 in asserting complete preemption. Opp’n at 11. Neither are persuasive. In denying the

15 Plaintiff’s motion for remand, the district court in Garcia heavily relied on the OGC’s Advisory

16 Opinion to find that the PREP act was a complete preemption statute. See Garcia, 522 F. Supp.

17 3d 745 (“because the OGC stated that the PREP Act is a complete preemption statute, the Court

18 finds that an adequate basis for federal question jurisdiction exists” and did not decide whether

19 “federal question jurisdiction exists because of either the Grable [d]octrine or because the claims

20 fall squarely within the PREP Act.”). For the reasons stated above, this Court disagrees. See

21 Golbad, 2021 WL 1753624, at *3 (noting that “[t]he court in Garcia deferred to the HHS

22 Secretary’s opinion of PREP Act complete preemption, but failed to consider the Ninth Circuit’s

23 two-part complete preemption test.”). In Rachal, the district court found that the defendants, a

24 nursing and rehabilitative center, were “clearly ‘covered persons,’ ” under the PREP Act, but that

25 it was “not clear from the face of the petition that the entirety of the claims at issue relate to [the]

26 [d]efendants’ administration or use of covered countermeasures.” Rachal, 2021 U.S. Dist. LEXIS

27 105847, at *9. On that basis, the Rachal court denied the defendants’ motion to dismiss and

1 to conduct discovery as to the nature of the plaintiff’s claims, including the defendant’s specific

2 acts of alleged misconduct and whether those acts were “covered countermeasures” under the

3 PREP Act. Id. at *14. Notably, the district court in Rachal did not address whether the PREP Act

4 is a complete preemption statute.

5 The Court concludes complete preemption does not apply.

6 B. Imbedded Federal Question Under the Grable Doctrine

7 Under the Grable doctrine, in order for a state law claim to provide federal question

8 jurisdiction, the “state law claim [must] necessarily raise a stated federal issue, actually disputed

9 and substantial, which a federal forum may entertain without disturbing any congressionally

10 approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Products,

11 Inc., 545 U.S. at 314. Further, the Supreme Court has stated “federal jurisdiction over a state law

12 claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and

13 (4) capable of resolution in federal court without disrupting the federal-state balance approved by

14 Congress." Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not enough that the federal issue

15 be significant to the particular parties in the immediate suit; that will always be true when the state

16 claim ‘necessarily raise[s]’ a disputed federal issue, as Grable separately requires. The

17 substantiality inquiry under Grable looks instead to the importance of the issue to the federal

18 system as a whole.” Gunn, 568 U.S. at 260 (italics in original).

19 District courts have consistently rejected healthcare providers’ or assisted living facilities’

20 arguments that claims arising out of patients or residents getting COVID-19 raise embedded

21 federal issues with respect to the PREP Act. See, e.g., Stone, 2021 WL 1163572, at *7 (“The

22 federal issue relates to Defendant’s defense, not the claims alleged by Plaintiff. As such, the

23 federal issue is not necessarily raised.”); Lyons v. Cucumber Holdings, LLC, 520 F. Supp. 3d

24 1277, 1288 (“the federal issue raised relates to Defendants’ defense” so the court concluded that it

25 did not have subject matter jurisdiction based on embedded federal question grounds); Estate of

26 McCalebb, 2021 WL 911951, at *3 (“Defendant has not demonstrated that federal jurisdiction lies

27 under Grable” and “Plaintiff’ state claims do not require an interpretation, or challenge the

1 The Court agrees with these decisions. The Grable doctrine relies on the claims made by

2 the plaintiff, not the defenses raised by the defendant. Plaintiffs have raised standard medical

3 negligence and elder abuse claims arising under California law and those claims do not necessarily

4 raise a federal issue. Defendants appear to be the only parties that raise a federal issue, for

5 example in asserting their immunity defense under the PREP Act. Opp’n at 20-23. This is not

6 enough to implicate Grable. “No federal issue is ‘necessarily raised’ by Plaintiffs’ complaint

7 because an interpretation of the PREP Act is not an essential element of any of Plaintiffs’ state law

8 claims.” Hopman v. Sunrise Villa Culver City, No. 2:21-cv-01054, 2021 WL 1529964, at *6

9 (C.D. Cal. Apr. 16, 2021); see also Padilla, 2021 WL 1549689 (finding no subject matter

10 jurisdiction under Grable based on PREP Act defense). Moreover, as noted above, issues raised

11 by Plaintiffs that have no causal connection with any PREP Act countermeasures; nothing requires

12 interpretation of the PREP Act. In any event, “a case may not be removed to federal court on the

13 basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated

14 in the plaintiff's complaint, and even if both parties concede that the federal defense is the only

15 question truly at issue.” Caterpillar Inc., 482 U.S. at 393.

16 Accordingly, it appears that this Court does not have subject matter jurisdiction based on

17 an embedded federal question under Grable. See, e.g., Robertson, 2021 WL 764566, at * (D. Kan.

18 Feb. 26, 2020) (“To be certain, Defendants intend to assert the PREP Act as a defense to

19 Plaintiff’s claim. But that is not enough.”); Dupervil, 516 F. Supp. 3d at 258 (“But this only

20 shows that Defendants may have an affirmative defense to Plaintiff’s claims, not that Plaintiff’s

21 claims are affirmatively premised on, or on their face necessarily require resolution of, the PREP

22 Act.”).

23 C. Federal Officer Removal

24 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the removing party]

25 is a ‘person’ within the meaning of the statute; (b) there is a causal nexus between its actions,

26 taken pursuant to a federal officer’s directions, and plaintiff’s claims; and (c) it can assert a

27 ‘colorable federal defense.’ ” Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018).

1 to be pleaded in the complaint in order for the district court to have subject matter jurisdiction

2 based on a federal question. See N.G. v. Downey Reg’l Med. Ctr., 140 F. Supp. 3d 1036, 1039

3 (C.D. Cal 2015).

4 Here, there does not appear to be a dispute as to whether the removing parties (Defendants)

5 are “persons” for purposes of the federal officer removal statute. The next inquiry is whether

6 Defendants acted “pursuant to a federal officer’s directions,” whether there is a “causal nexus”

7 between Defendants’ actions and Plaintiffs’ claims, and whether Defendants can assert a colorable

8 federal defense. Notably, Defendants point to government regulations and public directives

9 regarding the response to the COVID-19 pandemic. The court in Fidelitad stated that, “[f]or a

10 private entity to be acting under a federal officer, the private entity must be involved in an effort to

11 assist, or to help carry out, the duties or tasks of the federal superior.” Fidelitad, Inc., 904 F.3d at

12 1095. However, a “private firm’s compliance (or noncompliance) with federal laws, rules, and

13 regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal

14 ‘official.’ And that is so even if the regulation is highly detailed and even if the private firm’s

15 activities are highly supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551

16 U.S. 142, 153 (2007).

17 Defendants argue that the government regulations and public directives implemented

18 during the COVID-19 pandemic are tantamount to directions from a federal officer. See Notice of

19 Removal ¶¶ 51-61. For instance, Defendants argue that at “all relevant times [Defendant] Orinda

20 [Care Center]—as part of the nation’s critical infrastructure—was acting at the specific direction

21 of federal authorities to address the on-going federal effort and national state of emergency to

22 contain the COVID-19 pandemic and prevent the spread of the virus. Id. ¶ 62. Here, Defendants

23 fail to establish that their alleged conduct at issue in this case was “pursuant to a federal officer's

24 directions.” See Stirling v. Minasian, 955 F.3d 795, 800 (9th Cir. 2020). Defendants point to only

25 general regulations and directives regarding the provision of medical services, and argue that, as a

26 skilled nursing facility, they are subject to a high degree of federal regulation. Reply at 27-31. As

27 noted above, there appears to be no causal relationship between the claims in this suit and the

1 Unsurprisingly, similar arguments have been consistently rejected by district courts

2 considering similar claims against assisted living facilities based on their actions during the

3 COVID-19 pandemic. See, e.g., Nava v. Parkwest Rehab. Ctr. LLC, No. 2:20-cv-07571, 2021 WL

4 1253577, at *2 (C.D. Cal. Apr. 5, 2021) (holding that “general regulations and directives” and

5 being “subject to a high degree of federal regulation” is not enough for federal officer removal);

6 Saldana, 2020 WL 6713995, at *3 (rejecting the defendants’ argument that “in taking steps to

7 prevent the spread of COVID-19, [they] did so in compliance with CDC and CMS directives,

8 which were aimed at helping achieve the federal government’s efforts at stopping or limiting the

9 spread of COVID-19” as insufficient for federal officer removal because “[t]he directions

10 Defendants point to are general regulations and public directives regarding the provision of

11 medical services.”); Martin, 2020 WL 5422949 (finding that the COVID-19 directives that the

12 defendant relied on were nothing more than “general regulations and public directives regarding

13 the provision of medical services”) (quoting Watson, Inc., 551 U.S. at 153).

14 Accordingly, the Court finds that Defendants have not established that removal is proper

15 based on the federal officer removal statute and GRANTS Plaintiffs’ Motion to Remand.

16 IV. DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE

17 On August 2, 2021, Defendants filed a Request for Judicial Notice in support of the Notice

18 of Removal, specifically requesting that the Court take judicial notice of: Ex. 1- Plaintiff’s

19 Complaint for Damages filed on May 13, 2021; Ex. 2 - United States, Department of Health and

20 Human Services (“HHS”) “Notice of Declaration Under the Public Readiness and Emergency

21 Preparedness Act for Medical Countermeasures Against COVID–19.” 85 Fed. Reg. 52,15198

22 (Mar. 17, 2020); Ex. 3 - HHS “Amendment to Declaration Under the Public Readiness and

23 Emergency Preparedness Act for Medical Countermeasures Against COVID–19.” 85 Fed. Reg.

24 73,21012 (Apr. 15, 2020); Ex. 4 - HHS “Second Amendment to Declaration Under the Public

25 Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID–19.”

26 85 Fed. Reg. 110,35100 (June 8, 2020); Ex. 5 – HHS “Fourth Amendment to the Public Readiness

27 and Emergency Preparedness Act for Medical Countermeasures Against COVID-19.” 85 Fed.

1 Charrow, General Counsel for the Office of the Secretary of HHS, to Thomas Barker of Foley

2 Hoag, LLP; Ex. 7 - HHS Advisory Opinion 20-04 issued October 22, 2020 as amended October

3 23, 2020, by General Counsel Robert Charrow; Ex. 8 – HHS Advisory Opinion on the Public

4 Readiness and Emergency Preparedness Act and The March 10, 2020 Declaration Under the Act,

5 April 17, 2020, as modified on May 19, 2020, by General Counsel Robert Charrow; Ex. 9 - HHS

6 Advisory Opinion 21-01, PREP Act Scope of Preemption Provision, issued January 8, 2021, by

7 General Counsel Robert Charrow; Ex. 10 - United States, Food and Drug Administration (“FDA”)

8 List of Covered Countermeasures subject to Emergency Use Authorizations by the United States

9 FDA; Ex. 11 – United States, Centers for Disease Control and Prevention (“CDC”) CDC Health

10 Advisory dated Jan. 8, 2020, “Outbreak of Pneumonia of Unknown Etiology (PUE) in Wuhan,

11 China”; Ex. 12 - CDC Update and Interim Guidance dated January 17, 2020, “Outbreak of 2019

12 Novel Coronavirus (2019-nCoV) in Wuhan, China” with guidance to state and local health

13 departments and healthcare providers; Ex. 13 - CDC Interim Infection Prevention and Control

14 Recommendations for Patients with Known or Patients Under Investigation for 2019 Novel

15 Coronavirus (2019-nCoV) in a Healthcare Setting, dated January 24, 2020; Ex. 14 - CDC Health

16 Update and Interim Guidance on Outbreak of 2019 Novel Coronavirus (2019-nCoV), dated Feb.

17 1, 2020; Ex. 15 – State of California, Health and Human Services Agency, CA Department of

18 Public Health (“CDPH”). All Facilities Letters (AFLs) disseminating information and directives

19 issued by the CDC with respect to identification of Patients Under Investigation and infection

20 prevention and control; AFLs 20-09, 20-10, 20-11, 20-13, and 20-15; Ex. 16 – United States,

21 Centers for Medicare and Medicaid Services (“CMS”). Memorandum QSO 20-09-ALL dated Feb.

22 6, 2020, instructing healthcare providers to adhere to CDC directives regarding the use of

23 standard, contact, and airborne precautions when interacting with Persons Under Investigation; Ex.

24 17 - CDC Update and Interim Guidance on the Outbreak of 2019 Novel Coronavirus (COVID-19),

25 dated Feb. 28, 2020; Ex. 18 - CDC “Strategies to Prevent the Spread of COVID-19 in Long-Term

26 Care Facilities (LTCF)”, dated Mar. 1, 2020; Ex. 19 - CDPH All Facilities Letter AFL 20-17,

27 dated Mar. 3, 2020; Ex. 20 - United States, Centers for Medicare and Medicaid Services (“CMS”)

1 Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes,”

2 dated Mar. 4, 2020; Ex. 21 - CDC “Updated Guidance on Evaluating and Testing Persons for

3 Coronavirus Disease 2019 (COVID-19)”, dated Mar. 8, 2020; Ex. 22 - CDC “Interim Infection

4 Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus

5 Disease 2019 (COVID-19) in Healthcare Settings”, dated Mar. 10, 2020; Ex. 23 - CMS

6 Memorandum QSO 20-17-ALL regarding “Guidance for Use of Certain Industrial Respirators by

7 Health Care Personnel”, dated Mar. 10, 2020; Ex. 24 - CDPH All Facilities Letter AFL 20-22.1

8 regarding “Guidance for Limiting the Transmission of COVID-19 in Long-Term Care Facilities”,

9 dated Mar. 11, 2020; Ex. 25 - CMS Memorandum QSO-20-14-NH regarding “Guidance for

10 Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes

11 (REVISED)”, dated March 13, 2020; Ex. 26 - CDC documents containing strategies for

12 optimizing limited supplies of eye protection, isolation gowns, N95 respirators, and face masks,

13 dated Mar. 17, 2020; Ex. 27 -CMS Memorandum QSO 20-20-ALL regarding “Prioritization of

14 Survey Activities”, dated Mar. 20, 2020; Ex. 28 - CDC publication entitled “Preparing for COVID

15 19: Long-term Care Facilities, Nursing Homes”, dated Mar. 21, 2020; Ex. 29 - CDC “COVID-19

16 Long-Term Care Facility Guidance”, dated Apr. 2, 2020; Ex. 30 - HHS “Fifth Amendment to

17 Declaration Under the Public Readiness and Emergency Preparedness Act for Medical

18 Countermeasures Against COVID–19”, effective Jan. 28, 2021; Ex. 31 - Statement of Interest of

19 United States submitted in Bolton v. Gallatin Center for Rehabilitation & Healing, LLC, No. 3:20-

20 cv-00683 (M.D. Tenn.), dated Jan. 21, 2021; Ex. 32 – United States District Court, Central District

21 of California. Civil Minutes dated Feb. 10, 2021. [IN CHAMBERS] Order Regarding Plaintiff’s

22 Motions for Remand and Defendant’s Motion to Dismiss Complaint in Garcia v. Welltower OpCo

23 Group LLC, No. 8:20- CV-02250, at *8-9 (C.D. Cal. Feb. 10, 2021); Ex. 33 - HHS “Sixth

24 Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for

25 Medical Countermeasures Against COVID-19, effective Feb. 20, 2021; Ex. 34 – HHS “Seventh

26 Amendment to Declaration Under the Public Readiness and Emergency Preparedness Act for

27 Medical Countermeasures Against COVID-19, effective Mar. 11, 2021. Defs. RJN, Docket No. 9.

1 judicial notice. See Defs. RJN, Docket No. 9. However, the Court can properly take judicial

2 notice of these document because this information was made publicly available by government

3 entities and neither party disputes the authenticity. See Fed. R. Evid. 201; Daniels-Hall v. Nat’l

4 Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (“It is appropriate to take judicial notice of this

5 information, as it was made publicly available by government entities . . . , and neither party

6 disputes the authenticity . . . or the accuracy of the information displayed therein.”). Accordingly,

7 this Court GRANTS Defendants’ request for judicial notice.

8 V. CONCLUSION

9 In light of the foregoing, the Court finds that Defendants have failed to carry their burden

10 to show removal was proper. The Court therefore GRANTS Plaintiffs’ Motion to Remand the

11 matter to the Contra Costa County Superior Court and DENIES Defendants’ Motion to Dismiss as

12 moot. Additionally, in granting the motion for removal, the Court makes clear that it makes no

13 decision as to whether Plaintiffs’ claims are barred by the PREP Act under principles of ordinary

14 defensive preemption, or otherwise. That issue is for the state court to decide. See Dupervil, 516

15 F. Supp. 3d at 257.

16 This order disposes of Docket Nos. 8 and 18.

17

18 IT IS SO ORDERED.

19

20 Dated: November 9, 2021

21

22 ______________________________________

EDWARD M. CHEN

23 United States District Judge

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25

26

27