Gunter v. CCRC OPCO- Freedom Square, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JESSICA A. GUNTER,

Plaintiff,

v. Case No: 8:20-cv-1546-T-36TGW

CCRC OPCO-FREEDOM SQUARE, LLC,

et al.,

Defendants.

___________________________________/

ORDER

This matter comes before the Court on Plaintiff’s Motion to Remand (Doc. 33). In the

motion, Plaintiff, Jessica Gunter, as Personal Representative of the Estate of Donald J. Jack, seeks

an Order remanding this case to the Circuit Court of the Sixth Judicial Circuit in and for Pinellas

County, Florida. Defendants, CCRC OPCO-Freedom Square, LLC; Healthpeak Properties, Inc.;

Brookdale Senior Living, Inc.; BKD Twenty-One Management Company, Inc.; American

Retirement Corporation; Life Care Services, LLC; and Cynthia Ayala (collectively “Defendants”),

filed a response in opposition (Doc. 36). Defendants contend the motion to remand should be

denied because the Public Readiness and Emergency Preparedness Act (“PREP” Act), 42 U.S.C.

§ 247d-6d, preempts Plaintiff’s claims and supplies federal subject matter jurisdiction. The parties

filed additional supplemental authority supporting their respective positions. See Docs. 35, 37, 38,

41, 49, 50, 51.1 The Court, having considered the motion, the response, and being fully advised

in the premises, will grant the motion and remand this case to state court.

1 Although docketed as a response, Doc. 49 is titled a motion for oral argument in opposition to

Plaintiff’s motion to remand. See Doc. 49 at 1. The request for oral argument is denied. Both sides

have thoroughly briefed the matter, including filing multiple supplements, and thus the Court

concludes oral argument is unnecessary to determine the issues. Moreover, contrary to

I. BACKGROUND

This case arises out of claims of nursing home negligence that allegedly resulted in the

death of Donald Jack (“Jack”) during his residency at Defendants’ skilled nursing facility known

as Seminole Pavilion Rehabilitation and Nursing Services (“the Facility”). Plaintiff, Jessica

Gunter, is the Personal Representative for the Estate of Jack. Doc. 33-1 at 42. She filed a four-

count Complaint in state court on behalf of the Estate and the survivors seeking damages due to

Jack’s death. Doc. 33-1. The Complaint sues the Facility’s administrator, Cynthia Ayala, and five

corporate Defendants who are alleged to be owners, operators, and/or managers of the Facility and

the property. Id.

Plaintiff alleges that Defendants were on high-alert for COVID-192 since January 2020.

Id. ¶ 50. On March 4, 2020, Defendants represented to staff, residents and relatives that Defendants

were taking actions to address COVID-19 concerns. Id. ¶ 41. On March 13, 2020, the Florida

Governor ordered all nursing home facilities to lock down and implemented a visitation ban in an

effort to mitigate the risk to Florida’s elderly population who are highly vulnerable to COVID-19,

particularly those individuals who also have certain underlying medical conditions. Id. ¶ 44. On

March 15, 2020, Defendants updated their website with additional actions Defendants continued

to take to address COVID-19 concerns. Id. ¶ 45.

Defendants’ claim that these issues are one of first impression, the applicability of the PREP Act’s

immunity in the context of a nursing home negligence case has been addressed recently by several

other jurisdictions. See Sherod v. Comprehensive Healthcare Mgmt. Svcs., LLC, No. 20cv1198,

2020 WL 6140474 (W.D. Pa. Oct. 16, 2020); Martin v. Serrano Post Acute LLC, No. 20-5937DSF

(SKx), 2020 WL 5422949 (C.D. Cal. Sept. 10, 2020); Lutz v. Big Blue Healthcare, Inc., No. 2:20-

cv-2316-HLT-JPO, 2020 WL 4815100 (D. Kan. Aug. 19, 2020); Est. of Maglioli v. Andover

Subacute Rehab. Ctr. I, No. 20-6605(KM)(ESK), 2020 WL 4671091 (D. N.J. Aug. 12, 2020).

2 Coronavirus disease 2019, known as COVID-19, is the illness caused by the SARS-CoV-2 virus.

On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.

Jack admitted himself to the Facility on or about April 2, 2020, for short-term rehabilitation

due to generalized weakness resulting from chemotherapy treatment for his recent diagnosis of

Hodgkin’s Lymphoma. Id. ¶ 47. He was 75 years old at the time. Id. At the time of his admission,

Jack had various diagnoses, including Hodgkin’s Lymphoma, Type II diabetes, and abnormality

of albumin. Id. ¶ 48. Due to his age and underlying medical conditions, Defendants knew Jack was

one of the residents highly vulnerable to COVID-19. Id. ¶ 49. Notwithstanding this knowledge,

Defendants are alleged to have failed to implement adequate protocols, service, and care to control

and minimize the spread of the infection at the Facility. Id. ¶ 51.

On April 16, 2020, lab results confirmed Jack was positive for COVID-19. Id. ¶ 61. As of

that date, approximately 30 residents and staff members tested positive for COVID-19. Id. ¶ 62.

The Facility began transferring residents to area hospitals because it was overwhelmed by the

outbreak of COVID-19. Id. ¶ 63.

On April 17, 2020, Jack, along with the remaining Facility residents were transferred to

local hospitals. Id. ¶ 64. On April 21, 2020, Jack died as a result of COVID-19, which he contracted

while a resident of Defendants’ Facility. Id. ¶ 66. Plaintiff contends that the Facility has a history

of insufficient infection control, noting documented Department of Health citations in 2018 and

2019. Id. ¶¶ 68, 69.

Plaintiff alleges that Defendants’ negligent acts and omissions included the following:

failing to properly use resident funds; failing to have an adequate emergency preparedness plan;

failing to implement adequate safety protocols to minimize the risk and spread of COVID-19;

failing to implement an adequate system for identifying, reporting, preventing and controlling

infections and communicable diseases; failing to notify authorities, staff, residents and relatives of

the potential dangers of COVID-19 and the positive cases at the Facility; forcing staff to reuse

personal protection equipment (“PPE”); failing to supply proper masks and gowns; failing to

follow Center for Disease Control (“CDC”) guidelines; failing to communicate the outbreak to

authorities and avail themselves of available PPE; failing to implement safety protocols and

disinfect common areas to minimize the spread of the virus; failing to provide adequate staff in

number and training; failing to be forthcoming about the outbreak with employees, residents and

relatives; reducing basic cleaning practices for which the residents pay for; permitting widespread

safety failures such as inadequate staff and equipment; having inadequate management oversight;

and permitting asymptomatic staff who had been exposed to COVID-19 to continue to work at the

Facility. Doc. 33-1 ¶ 51.

On June 8, 2020, Plaintiff filed a four-count complaint asserting solely state law claims

against Defendants in the Circuit Court for the Sixth Judicial Circuit in and for Pinellas County.

Plaintiff sues Defendants for breach of fiduciary duty (Count I), aiding and abetting breach of

fiduciary duty (Count II), violations of Florida Statutes § 415.1111 (Count III), and violations of

Florida’s Deceptive and Unfair Trade Practices Act § 501.201, et seq. (Count IV). Doc. 33-1.

Defendants timely removed the case to this Court. Doc. 1. In their Notice of Removal, Defendants

contend jurisdiction is proper because Plaintiff’s Complaint asserts a claim “arising under” federal

law within the meaning of § 1331.3 Id. ¶ 7. Specifically, Defendants submit that Plaintiff’s

Complaint presents a federal question under the Public Readiness and Emergency Preparedness

Act (PREP Act), 42 U.S.C.A. §§ 247d-6d, 247d-6e (2020). Defendant argues that where a federal

statute, such as PREP, provides the exclusive remedy for the substance of the allegations and relief

sought in the Complaint, federal law expressly preempts state law for purposes of federal question

jurisdiction.

3 Diversity jurisdiction is not alleged.

II. The PREP Act

The PREP Act was enacted December 30, 2005, and “authorizes the Secretary of Health

and Human Services (the Secretary) to issue a Declaration to provide liability immunity to certain

individuals and entities (Covered Persons) against any claim of loss caused by, arising out of,

relating to, or resulting from the manufacture, distribution, administration, or use of medical

countermeasures (Covered Countermeasures), except for claims involving “willful misconduct”

as defined in the PREP Act. Declaration Under the Public Readiness and Emergency

Preparedness Act for Medical Countermeasures Against COVID-19, 85 FR 15198-01 (Dep’t of

Health and Human Svcs., Mar. 17, 2020). Effective February 4, 2020, the Secretary issued a

Declaration to provide liability immunity for activities related to medical countermeasures against

COVID-19. Id. The PREP Act defines “covered countermeasure” as a qualified pandemic or

epidemic product, drug, biological product, or device. See 42 U.S.C. §§ 247d-6d(i)(1); 247d-

6b(c)(1)(B); 247d-6d(i)(7). The term “covered person” under the PREP Act “when used with

respect to the administration or use of a covered countermeasure means . . . a person or entity that

is (i) a manufacturer of such countermeasure; (ii) a distributor of such countermeasure; (iii) a

program planner of such countermeasure; (iv) a qualified person who prescribed, administered, or

dispensed such countermeasure; or (v) an official, agent, or employee of a person or entity

described in clause (i), (ii), (iii), or (iv).” 42 U.S.C. § 247d-6d(i)(2). The Act provides a civil

remedy to compensate individuals through the Countermeasures Injury Compensation Fund for

injuries resulting from the manufacture, testing, development, distribution, administration, or use

of one or more Covered Countermeasures.

III. DISCUSSION

Plaintiff urges remand is warranted because her Complaint does not present a federal

question and Plaintiff’s claims do not fall within the scope of the PREP Act. The Court agrees.

When evaluating whether a case arises under federal law, this Court “is guided by the ‘well-

pleaded complaint’ rule, which provides that the plaintiff’s properly pleaded complaint governs

the jurisdictional determination.” Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182

F.3d 851, 854 (11th Cir. 1999) (citing Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152

(1908)); see Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (“[T]he question

whether a claim ‘arises under’ federal law [for purposes of removal] must be determined by

reference to the ‘well-pleaded complaint.’”).

Here, it is undisputed Plaintiff has alleged purely state law causes of action. Plaintiff alleges

two claims based on Florida common law (Counts I and II) and two claims based on violations of

Florida statutory law (Counts III and IV). Plaintiff is the master of her Complaint and may prevent

removal by choosing not to allege a federal claim. Blab, 182 F.3d at 854.

Defendants argue that, notwithstanding the well-pleaded complaint rule, this case falls

within the narrow circumstance of a federal law’s complete preemption of the state tort causes of

action. Defendants contend the PREP Act governs the claims in this case, and as such, jurisdiction

is proper in federal court. Defendants are correct that complete preemption allows for “a narrowly

drawn means of assessing federal removal jurisdiction.” Blab, 182 F.3d at 854. However, the Court

concludes the PREP Act is inapplicable here as discussed below.

Complete preemption occurs when “the pre-emptive force of a statute is so ‘extraordinary’

that it converts an ordinary state common-law complaint into one stating a federal claim for

purposes of the well-pleaded complaint rule.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 393

(1987). Limited applications of the doctrine have been seen in the context of Labor Management

Relations Act (LMRA) claims, see Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968), and

in Employee Retirement Income Security Act (ERISA) claims, see Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 23–24 (1983); Metropolitan Life Insurance Co.

v. Taylor, 481 U.S. 58, 63–64 (1987). See also Cmty. State Bank v. Strong, 651 F.3d 1241, 1260

n.16 (11th Cir. 2011) (“Complete preemption is a rare doctrine . . . .”).

Defendants have raised the PREP Act as an affirmative defense here, claiming that the Act

provides the sole civil remedy for those circumstances implicating covered countermeasures such

that Plaintiff’s sole remedy is to seek compensation from the Covered Countermeasures Process

Fund by making requests for benefits under the Countermeasures Injury Compensation Fund

(CICP). It is clear, however, that “the presence of a federal defense does not make the case

removable, even if the defense is preemption and even if the validity of the preemption defense is

the only issue to be resolved in the case.” Blab, 182 F.3d at 854 (citing Caterpillar, 482 U.S. at

393). A review of Plaintiff’s claims reveals that the allegations challenge, among other things, the

Defendants’ negligent conduct in failing to properly staff the Facility, failing to effectively

communicate with residents and families, failing to provide necessary medical supplies to the staff,

reducing the cleaning practices in the Facility, and failing to properly use resident’s funds. These

acts and omissions have nothing to do with the administration of a qualified pandemic or epidemic

product, drug, biological product, or device for which the PREP Act provides immunity.

The United States District Court in New Jersey had occasion to recently consider this same

issue in the companion cases Estate of Maglioli v. Andover Subacute Rehabilitation Center, No.

20-6605 (KM)(ESK), and Estate of Kaegi v. Andover Subacute Rehabilitation Center II, No. 20-

6985 (KM)(ESK), 2020 WL 4671091 (D. N.J. Aug. 12, 2020). Although not binding, the Court

finds the opinion persuasive. The cases arose out of treatment of residents at two nursing home

facilities owned and/or operated by defendants. The residents died while in defendants’ care,

allegedly due to defendants’ failure to exercise due care with respect to the coronavirus infections.

Id. at *2. The plaintiffs’ complaints, which were filed in state court, alleged only state law claims.

Id. Defendants removed the cases on the basis that plaintiffs’ claims are preempted by the PREP

Act. Id. In finding that removal was improper, the court noted that the PREP Act covers the

administration and distribution of products meant to curb the spread of COVID-19, and is not, by

its plain terms, intended to cover generally the care received by patients in their healthcare

facilities. Id. at 9.

The New Jersey District Court further observed that guidance from the Department of

Health and Human Services (DHH) suggests that the PREP Act does not “occupy the field” of

negligence and malpractice claims. Id. “[I]t is the Secretary’s interpretation . . . the Act precludes,

for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or

negligence by a health care provider in prescribing the wrong dose, absent willful misconduct.”

https://www.phe.gov/Preparedness/legal/prepact/Pages/COVID19.aspx. Thus, the Act is confined

to addressing claims related to the administration of certain countermeasures and does not seek to

completely preempt the type of state law negligence claims asserted here.

In a factually similar case from the District Court of Kansas, that court found that the

defendants’ PREP Act affirmative defense was insufficient to establish federal court jurisdiction

and support removal where the plaintiff’s complaint alleged that the nursing home resident died

because of defendants’ failure to take preventative measures to stop the entry and spread of

COVID-19 within the facility. See Lutz v. Big Blue Healthcare, Inc., No. 2:20-cv-2316-HLT-JPO,

2020 WL 4815100 (D. Kan. Aug. 19, 2020). “The PREP Act preempts state laws that create

different standards regarding covered countermeasures.” Id. at *5 (citing 42 U.S.C. § 247d-

6d(b)(8). Like in Lutz, Plaintiff does not allege a claim under the PREP Act, nor does she allege

any claim under a state law that differs or conflicts with the PREP Act. Further, the Complaint

does not raise that the decedent’s death was causally connected to the administration or use of any

drug, biological product, or device. As the party invoking the Court’s jurisdiction, it is Defendants’

burden to show that Plaintiff’s allegations fall within the purview of the PREP Act. Pacheco de

Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998) (“removing party bears the burden of

showing the existence of federal jurisdiction”). Courts construe removal jurisdiction narrowly, and

any doubts regarding the existence of federal jurisdiction and propriety of removal shall be

resolved in favor of the non-removing party. Id. (citing Diaz v. Sheppard, 85 F.3d 1502, 1505

(11th Cir. 1996)). Despite Defendant’s efforts to recast Plaintiff’s claim into a federal cause of

action, Plaintiff alleges state law claims for nursing home negligence due to substandard care. The

PREP Act is inapplicable here.

Defendants filed as supplemental authority a DHS General Counsel Advisory Opinion 20-

04 regarding the PREP Act. Doc. 51-1. This opinion does not salvage their cause. As a preliminary

matter, the Advisory Opinion does not bind the federal courts, nor does it have the “force or effect

of law.” Id. at 7. Moreover, the Advisory Opinion explains that the PREP Act “covers a broad

range of entities when such entities take reasonable steps to follow public-health guidelines and

directives in using covered medical products.” Id. at 1. While the Opinion provides that PREP Act

immunity can apply to private individuals and organizations, such coverage applies to these private

entities only when acting in accordance with the PREP Act and the Declaration. The Opinion’s

discussion of the broad application of “administration” of “activities related to management and

operation of programs and locations for providing countermeasures” was in the context of

operating a vaccination program. Jd. at 7. Plaintiff does not allege that Defendants were in any

way involved in a recommended activity such as the manufacture, testing, development,

distribution, administration or use of any countermeasure. Plaintiff does not allege that any

manufacture, testing, development, distribution, administration, or use of countermeasure caused

or contributed to the injuries and death of Jack. Plaintiff does not assert any theory of liability that

is in any way related to the Defendants’ “physical provision” of any “countermeasure.” Thus, the

Court concludes Plaintiffs claims do not fall within the scope of the PREP Act, and therefore do

not provide a basis for this Court’s jurisdiction.

Defendants have failed to demonstrate that federal jurisdiction exists. Accordingly, it is

hereby

ORDERED:

1. Plaintiff's Motion to Remand (Doc. 33) is GRANTED.

2. This case is REMANDED to the Circuit Court of the Sixth Judicial Circuit in and

for Pinellas County, Florida, Case No. 20-002755-CI, for lack of subject matter jurisdiction.

3. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the

Sixth Judicial Circuit Court, in and for Pinellas County, Florida.

4. The Clerk is further directed to terminate any pending deadlines and close this case.

DONE AND ORDERED in Tampa, Florida on October 29, 2020.

Chaken 2 AJ ards Kn Ts pl yd 0.

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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