Crisel v. Stearns Nursing and Rehabilitation Center, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CATHERINE B. CRISEL, independent )

administrator of the Estate of Bernitta )

Rena Howard, Deceased, )

)

Plaintiff, )

)

vs. ) Case No. 22-cv-685-DWD

)

STEARNS NURSING AND )

REHABILITATION CENTER, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Bernitta Rena Howard (“Howard”) a resident of Stearns Nursing and

Rehabilitation Center, L.L.C. (“Stearns”), a long-term care facility, died on August 13,

2020 after being diagnosed with COVID-19. Catherine B. Crisel (“Plaintiff”), as the

independent administrator of Howard’s estate, filed a lawsuit in Madison County,

Illinois against Stearns and three other defendants, alleging that Howard’s death was

caused by Defendants’ negligence. Defendants removed the case to federal court. See 28

U.S.C. §§ 1441(a), 1446(a).

As their basis for removal, Defendants invoke the Public Readiness and

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

related federal regulations, which they argue completely preempt Plaintiff's state-law

claims and provide federal question jurisdiction. See 28 U.S.C. § 1331. Alternatively,

Defendants contend that removal is proper under the Grable doctrine, see Grable & Sons

Metal Prod., Inc. v. Darue Eng’g, 545 U.S. 308 (2005), or under the federal officer removal

statute. See 28 U.S.C. § 1442(a)(1). Plaintiff now moves to remand (Doc. 15) for lack of

subject-matter jurisdiction. See 28 U.S.C. § 1447(c). For the following reasons, the Court

GRANTS the motion.

Background

At this stage of the proceedings, the Court accepts the allegations in Plaintiff’s

Complaint (Doc. 1-3) as true. Howard resided in Stearns from approximately June 2017

through August 2020. According to the Complaint, Defendants failed to respond

adequately to the COVID-19 pandemic, resulting in Howard’s death. Among other

things, Defendants allegedly failed to provide appropriate infectious disease precautions

and infection control measures, ensure routine monitoring of vital signs, provide

appropriate accommodations and separation for COVID positive and COVID negative

residents, ensure routine COVID testing was performed on all residents and staff,

provide appropriate personal protective equipment, provide appropriate training and

education to staff, provide appropriate housekeeping measures to prevent the spread of

infection, and follow the facility’s Coronavirus policy and procedures.

Plaintiff asserts a claim for negligence under the Illinois Nursing Home Care Act

(“INHCA”), 210 ILCS 45/1-101 et seq., against Stearns. She also asserts claims for

negligence under the Illinois wrongful death statute, 740 ILCS 180/1 et seq., and under

the Illinois survival statute, 755 ILCS 5/27-6, against each defendant.

Defendants timely removed the case, and Plaintiff subsequently filed a motion to

remand to state court.

Legal Standard

In the instant case, Defendants bear the burden of demonstrating removal is

proper. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). Removal is proper

“if it is based on statutorily permissible grounds, 28 U.S.C. § 1441, and if it is timely. 28

U.S.C. § 1446.” Id.

Discussion

Defendants make two arguments in support of removal: First, Defendants contend

that the PREP Act supplies federal question jurisdiction, either through the complete

preemption doctrine or because Plaintiff's state-law claims necessarily raise a substantial

federal issue (the “Grable doctrine”). See 28 U.S.C. § 1331; 28 U.S.C. § 1441; Grable & Sons

Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). Second, Defendants argue

that they qualify for removal under the federal officer removal statute. See 28 U.S.C. §

1442(a)(1).

Not surprisingly, lawsuits implicating the same issues raised by the parties have

emerged in federal courts across the country. Prior to the parties briefing the remand

issue, dozens of district courts and three appellate courts had issued decisions holding

that neither § 1441(a) nor § 1442(a)(1) permits removal of state law claims seeking

damages on account of health-care providers’ actions during the COVID-19 pandemic.

See Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (rejecting the

arguments raised by Defendants in the instant case, and noting that “[n]early every

federal district court to confront these cases has dismissed for lack of jurisdiction and

remanded to the state court”);1 Mitchell v. Advanced HCS, L.L.C., (5th Cir. 2022) (neither

federal officer removal, nor complete preemption under the PREP Act, nor the Grable

doctrine provided a basis for removing plaintiff’s state law causes of action for

negligence); Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) (same).

Since the parties briefed the removal issue, the Seventh Circuit Court of Appeals

issued a decision rejecting each of the Defendants’ arguments as to the existence of federal

subject matter jurisdiction in this case. Martin v. Petersen Health Operations, LLC, ---F.4th-

--, 2022 WL 2154870 (7th Cir. June 15, 2022). In Martin, the administrator of a nursing

home resident’s estate filed suit in state court under the Illinois Nursing Home Care Act

against a nursing home for the decedent’s COVID-19 related death. The nursing home

removed the case to federal court, asserting (1) the PREP Act provided a basis for removal

under either the complete preemption doctrine or the Grable doctrine; or (2) the federal

officer removal statute provided a basis for removal. The district court found that

removal was not authorized and remanded the case to state court, and the nursing home

appealed.2

1 Defendants briefly discuss in their briefing, suggesting that the appellate court’s decision

supports their complete preemption argument. (Doc. 19, p. 10). Specifically, Defendants indicate that

the Third Circuit concluded the PREP Act’s language “unambiguously” and “easily satisfies the

standard for complete preemption of particular causes of action.” But Defendants fail to note that,

although the Third Circuit concluded the PREP Act is completely preemptive as to willful-misconduct

claims, it is preemptive as to state-law negligence claims. The appellate court also concluded that

removal was not warranted based on either the federal officer removal statute or the

doctrine. Thus, Defendants’ citation to this particular aspect of , without further

explanation, is misleading.

2 The Seventh Circuit had jurisdiction over the appeal because removal was based on a claim of right

under § 1442. , at *1.

As to § 1442(a)(1), the Seventh Circuit explained that federal regulation does not

turn a private entity, such as a nursing home, into a public actor for purposes of federal

officer removal. Martin at *1 (“We do not doubt that the nursing home must comply with

many federal requirements, but it has been understood for a long time that regulation

does not turn a private entity into a public actor.”). As to preemption, the Seventh Circuit

concluded that the PREP Act only preempts wrongs “involving willful misconduct in

using covered countermeasures, and does not preempt any other kind of claim, let alone

occupy the field of health safety.” Id. at 2. The Court went on to explain that the plaintiff’s

state law claims were not even arguably preempted because they were wholly unrelated

to a “covered countermeasure:”

Face masks and other personal protective equipment are among the

countermeasures defined by the Secretary, but [the plaintiff] does not allege

that face masks led to her mother’s death; instead, she alleges that the

nursing home failed to use masks and other protective equipment. This is

the opposite of a contention that a covered countermeasure caused harm.

Id. Finally, the Seventh Circuit concluded that removal was not proper under the

approach articulated in Grable, explaining as follows:

[T]he principal disputes requiring adjudication in this suit are likely to be

issues such as whether the nursing home allowed members of the staff to

work while ill, failed to isolate residents who contracted COVID-19, and so

on. These issues have nothing to do with any federal statute, so the

conditions that Grable sets for federal jurisdiction are not satisfied.

Id. at *3.

In Martin, the Seventh Circuit considered and rejected each jurisdictional

argument advanced by Defendants in this case. Martin is binding precedent and dictates

the result here: Plaintiff filed her action in state court and asserts only state law claims

sounding in negligence. Those claims do not come within the removal-triggering

exclusive jurisdiction of the PREP Act, and they do not “necessarily raise” a substantial

federal issue within the meaning of Grable. Further, Defendants were not “acting under”

federal officers within the meaning of § 1442(a)(1). As such, Plaintiff’s claims are not

removable.

Requests for Costs and Fees

Plaintiff asks the Court to order Defendants to pay the attorney fees and costs

associated with removal. Attorney's fees may be awarded under 28 U.S.C. §

1447(c) “where the removing party lacked an objectively reasonable basis for seeking

removal”). The Seventh Circuit’s decision in Martin was not issued until after Defendants

removed the instant action. Accordingly, the Court finds that, at the time of removal,

Defendants’ arguments were not foreclosed by clearly established law. As such, no fees

or costs will be awarded.

Disposition

The Court GRANTS the Motion to Remand (Doc. 15). It is ORDERED that this

action be REMANDED to the Circuit Court of Madison County, Illinois.

Defendant did not lack an objectively reasonable basis for seeking removal, so no

fees or costs are awarded. The Clerk of Court is DIRECTED to transmit a certified copy

of this Order to the clerk of the state court, and to CLOSE this case.

All pending motions are DENIED as MOOT, and all deadlines and hearings are

CANCELLED.

SO ORDERED.

Dated: June 24, 2022 Lowe i oe

DAVIDW.DUGAN

United States District Judge