The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JENNIFER RAVAIN CIVIL ACTION
individually, and on behalf of her
minor child, J.R.
VERSUS NO: 21-2365
OCHSNER MEDICAL CENTER SECTION: "A" (4)
KENNER, LLC, ET AL.
ORDER AND REASONS
This matter is before the Court upon Defendant Ochsner’s removal of a state court
action pursuant to 28 U.S.C. § 1441. Plaintiff has filed an opposition to Defendants’
motions to dismiss pending before the Court. (Rec. Doc. 12). In Plaintiff’s opposition, she
presents a challenge to the Court’s jurisdiction over this matter, which we are obligated
to investigate. For the reasons stated below, this action is REMANDED to the state court
from which it was removed for lack of subject matter jurisdiction.
I. BACKGROUND
Plaintiff Jennifer Ravain, individually and on behalf of her minor child, J.R., initiated
this action in state court against Ochsner Medical Center Kenner, LLC (“Ochsner”),
Jefferson Parish School Board (“JPSB”), and East Jefferson High School (“EJHS”). This
suit arises out of an incident that occurred on October 20, 2021, wherein Ms. Ravain’s
16-year-old child, J.R., was administered a COVID-19 vaccine by Ochsner at his high
school, EJHS. (Rec. Doc. 1-1, State Court Petition). According to the petition, when J.R.
arrived at the Ochsner mobile vaccine unit stationed at EJHS, he was given a consent
form and told to sign his name where a minor’s parents would be required to sign. (Id. at
p. 2). J.R. was allegedly under the impression that he was signing up for the vaccine and
that it would be scheduled at a later time, as he wanted to investigate and discuss the
issues with his mother first. (Id.). Instead, the vaccine was immediately administered. (Id.).
Ms. Ravain alleges that, because J.R. was 16 at the time of the incident, he did not
have the legal capacity to consent to the vaccine and that, by administering a foreign
substance into the body of a minor without legal consent, Ochsner has committed the
intentional tort of battery upon J.R. (Id. at p. 9). Ms. Ravain further alleges that Defendants
JPSB and EJHS are liable for the battery because JPSB failed to ensure that Ochsner
would adhere to the law regarding consent and EJHS failed to take proper precautions or
implement proper procedures to protect minor children in its custody from being
administered the COVID-19 vaccine without proper consent. (Id. at p. 10). Ms. Ravain
alleges that Defendants’ failure to obtain her consent prior to administering the vaccine
inflicted extreme emotional distress on her. (Id.).
As a result of the “intentional and/or negligent actions of Defendants” Ms. Ravain
claims the following damages: loss of parental right to direct the medical care of her minor
child; past, present, and future emotional distress over the fear of possible side effects
and adverse events to her son; and punitive damages for the intentional and egregious
actions of Ochsner in not obtaining parental consent to administer the vaccine to a minor
in derogation of Louisiana law. (Id. at p. 11). Ms. Ravain claims the following damages on
behalf of J.R.: past, present, and future emotional distress caused by the battery and by
the fear of possible side effects and adverse events from the vaccine. (Id.).
On December 22, 2021, Ochsner, with the consent of JPSB, removed the case to
this Court based on federal question jurisdiction as set forth in 28 U.S.C. § 1331.1 (Rec.
Doc. 1, Notice of Removal). No other basis for original subject matter jurisdiction is
alleged. Ochsner alleges that federal question jurisdiction exists over the matter pursuant
to the complete-preemption doctrine. (Id. at p. 2). According to Ochsner, all three
requirements for complete preemption are present in the Public Readiness and
Emergency Preparedness Act (PREP Act) and the scope of this preemption
encompasses Plaintiff’s claims. (Id. at p. 4). To the extent that any of Plaintiff’s claims are
not covered by PREP Act preemption, Ochsner asserts that the Court possesses
supplemental jurisdiction over those claims. (Id. at p. 6).
Defendants Ochsner, JPSB, and EJHS subsequently filed two motions to dismiss
(Rec. Docs. 10 & 11), moving for the dismissal of Plaintiff’s claims pursuant to Fed. R.
Civ. Proc. 12(b)(6).2 In response, Plaintiff filed an Opposition and Incorporated Motion to
Remand (Rec. Doc. 12), arguing that the Court lacks subject matter jurisdiction because
Plaintiff’s claims do not arise under federal law. Specifically, Plaintiff urges that the petition
does not allege a federal cause of action, that the PREP Act only provides a defense of
immunity and is not an essential element of Plaintiff’s state law claims, and that the PREP
Act is not a complete preemption statute. (Id.).
In a joint reply, Defendants argue that Plaintiff’s objection to removal on the basis
of procedural impropriety, which was asserted in opposition to the motions to dismiss and
not in a remand motion, is untimely, and therefore has been waived. (Rec. Doc. 16 at p.
1 Ochsner maintains that JPSB and EJHS were not properly served or joined and that, therefore,
their consent for removal was not required. (Rec. Doc. 1 at p. 6). However, Ochsner states that
JPSB’s consent was obtained in an abundance of caution. (Id. at p. 7; Rec. Doc. 1-5).
2 In Defendants JPSB and EJHS’s Motion to Dismiss (Rec. Doc. 11), they adopt in full, as their
own, Defendant Ochsner’s Motion to Dismiss and the memorandum of law in support of the motion
(Rec. Docs. 10 & 10-1).
2). Defendants further assert that federal question jurisdiction exists in this matter
because the complete-preemption doctrine clearly applies. (Id. at pp. 3–5).
As an initial matter, the Court notes that Plaintiff’s argument in favor of remand is
based on a lack of subject matter jurisdiction, rather than procedural impropriety. And,
although procedural defects to removal must be raised by a motion to remand within 30
days after the notice of removal is filed, the 30-day deadline does not apply to subject
matter jurisdiction defects. See 28 U.S.C. § 1447(c).3 Further, federal courts have an
independent obligation to determine whether subject matter jurisdiction exists. Arbaugh
v. Y&H Corp., 546 U.S. 500, 501 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S.
547, 583 (1999)). The question of subject matter jurisdiction can never be waived.
Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir. 1985). Nor can jurisdiction
be conferred by conduct or consent of the parties. Id. Thus, even if no motion to remand
is filed, the Court has a duty to sua sponte question jurisdiction. See Howery v. Allstate
Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (citing Kidd v. Southwest Airlines, Co., 891
F.2d 540, 546 (5th Cir.1990)). We now address whether removal of this action was proper.
II. LEGAL STANDARD
Generally, a defendant may only remove a case to federal court if the plaintiff could
have originally filed the case there. 28 U.S.C. § 1441(a). The burden of establishing
subject matter jurisdiction in federal court rests on the party seeking to invoke it. St. Paul
3 Section 1447(c) states in part that:
A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.
28 U.S.C. § 1447(c) (emphasis added).
Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citing Gaitor v.
Peninsular & Occidental S.S. Co., 287 F.2d 252, 253–54 (5th Cir.1961)). Any ambiguities
as to the law and/or facts alleged in support of jurisdiction are construed against removal
because the removal statute should be strictly construed in favor of remand. Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown
& Root, Inc., 200 F.3d 335, 339 (5th Cir.2000)).
Federal district courts have original jurisdiction over cases “arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The presence or
absence of federal question jurisdiction is governed by the “well-pleaded complaint rule,”
which provides that federal jurisdiction exists only when a federal question is presented
on the face of the plaintiff's properly pleaded complaint. Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987) (citing Gully v. First National Bank, 299 U.S. 109, 112–13 (1936)).
The rule makes the plaintiff the master of the claim; he or she may avoid federal
jurisdiction by exclusive reliance on state law. Id.
In support of federal question jurisdiction, Defendants characterize Plaintiff’s
petition as one asserting Louisiana tort claims that are preempted by the PREP Act. The
complete-preemption doctrine is an independent corollary to the well-pleaded complaint
rule. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987). It creates federal
jurisdiction if Congress, by statute, “completely pre-empt[s] a particular area [such] that
any civil complaint raising [the] select group of claims is necessarily federal in character.”
Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 585 (5th Cir. 2022) (quoting Metro. Life
Ins. Co., 481 U.S. at 63–64)(citing GlobeRanger Corp. v. Software AG, 691 F.3d 702, 705
(5th Cir. 2012)). That happens when a federal law creates an “exclusive cause of action”
and “set[s] forth procedures and remedies governing that cause of action,” such that it
“wholly displaces the state-law cause of action.” Id. (quoting Beneficial Nat'l Bank v.
Anderson, 539 U.S. 1, 8 (2003)).
The complete-preemption corollary is narrow. Manyweather v. Woodlawn Manor,
Incorporated, 40 F.4th 237, 243 (5th Cir. 2022). To establish complete preemption,
Defendants must show that: “(1) the statute contains a civil enforcement provision that
creates a cause of action that both replaces and protects the analogous area of state law;
(2) there is a specific jurisdictional grant to the federal courts for enforcement of the right;”
and (3) there is a clear congressional intent that the federal cause of action be exclusive.
Mitchell, 28 F.4th at 585 (citing Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir. 2008)).
Once those conditions are met, the party invoking federal jurisdiction must show that the
plaintiff “could have brought” her state-law claims under the federal cause of action. Id.
(quoting Aetna Health Inc. v. Davila, 542 U.S. 200, 210 (2004). If so, they are completely
preempted.
III. DISCUSSION
Defendants contend that the PREP Act completely preempts Plaintiff’s state-law
claims. The Act contains a broad grant of immunity for covered persons from suits and
liability “for loss[es] caused by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered countermeasure.” Mitchell, 28
F.4th at 586 (quoting 42 U.S.C. § 247d-6d(a)(1)). These protections only apply, however,
if the Secretary of the Department of Health and Human Services makes a declaration
through the Federal Register, identifies a current or impending public health emergency,
identifies covered countermeasures like vaccines and treatments, states the immunity
provision is in effect, and meets other statutory requirements. Id. (quoting 42 U.S.C.
§ 247d-6d(b)). For most who suffer an injury that falls under the immunity provision, “the
sole remedy is compensation” from a fund administered by the Secretary. Id; see also 42
U.S.C. § 247d-6e(a).
The Act states only one exception to this immunity: A claimant may sue “a covered
person for death or serious physical injury proximately caused by [that person's] willful
misconduct.” 42 U.S.C. § 247d-6d(d)(1). The United States District Court for the District
of Colombia has exclusive jurisdiction to adjudicate these willful-misconduct claims, but
only after the claimant has exhausted administrative remedies. Id. § 247d-6d(d)(1)–(e)(1).
The exception is substantively narrow. The Act defines willful misconduct as “an act or
omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without
legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great
as to make it highly probable that the harm will outweigh the benefit.” Id. § 247d-
6d(c)(1)(A). Willful misconduct is a “more stringent” standard of liability than is
“recklessness” or any “standard of negligence.” Id. § 247d-6d(c)(1)(B).
We turn now to the question of whether the PREP Act preempts Plaintiff’s claims
in this case. A liberal reading of Plaintiff’s petition reveals state-law claims of negligence
and intentional torts. The Fifth Circuit recently held that the PREP Act “does not
completely preempt . . . state-law negligence claims.” Mitchell, 28 F.4th at 586; accord
Perez v. Southeast SNF, L.L.C., et al., 2022 WL 987187, at *2 (5th Cir. 2022) (per curiam)
(“this court determined in Mitchell that the PREP Act ‘does not completely preempt . . .
state-law negligence claims.’”). The Fifth Circuit first noted that the Act does not create a
cause of action for negligence—only for willful misconduct via the exception to the
immunity provision found at 42 U.S.C. § 247d-6e(d)(1)). Id. at 586–87. Assuming, without
deciding, that the willful-misconduct cause of action in the Act is completely preemptive,
the Court found that the plaintiff could not have brought his claims under that cause of
action because he only asserted negligence. Id. Second, the Court determined that “the
compensation fund that the Act creates is not completely preemptive under [Fifth Circuit]
precedents,” in part because the fund itself is not a cause of action, nor does it create
one. Id. at 586. Because “the PREP Act does not create a general cause of action that
would preempt state-law negligence claims[,]” or “contain a specific jurisdictional grant to
the federal courts to adjudicate any such cause of action,” the Act could not preempt the
plaintiff’s claims. Id. at 587.
In Manyweather v. Woodlawn Manor, Inc., 40 F.4th 237 (5th Cir. 2022), the Fifth
Circuit reaffirmed its holding in Mitchell regarding the PREP Act and state-law negligence
claims. There, in addition to arguing that the plaintiffs’ state-law negligence claims are
preempted, the defendant asserted that the plaintiffs pleaded a willful-misconduct claim
which is also preempted by the PREP Act. Id. at 244. The Fifth Circuit disagreed, finding
first that state-law negligence claims are not preempted by the Act pursuant to Mitchell
and, second, that the petition did not suggest that the plaintiffs “could have brought” or
meant to bring a willful-misconduct claim because the claims in the petition sound in
negligence. Id. at 245. The Court further found that, even assuming the plaintiffs did mean
to plead a willful-misconduct claim and that the Act’s cause of action for willful misconduct
satisfies the requisites for complete preemption, the defendant had not demonstrated that
the plaintiffs “could have brought” their willful-misconduct claim under the Act. Id. The
Court reasoned that the shield from suit or liability that the Act provides is in relation to
claims that have a causal relationship with the administration or use of a covered
countermeasure, and the plaintiffs instead assert that the failure to use/administer those
countermeasures caused their mother’s death. Id. at 236. Thus, the Fifth Circuit
concluded that the Act did not completely preempt the plaintiffs’ claims.
Under Mitchell, it is clear that the PREP Act does not completely preempt Plaintiff’s
state-law negligence claims in this case. The question that remains, however, is whether
the Act completely preempts Plaintiff’s state-law intentional tort claims. Defendants argue
that, in pleading her state-law tort claims, Plaintiff makes allegations of willful misconduct
which are completely preempted by the Act. While the elements for intentional torts may
be broad enough to fit within the “willful misconduct” standard, that does not necessarily
mean that Plaintiff “could have brought” a willful-misconduct claim under the Act. Even if
we assume that Plaintiff “could have brought” or meant to bring a willful-misconduct claim
under the Act, the Act’s willful-misconduct cause of action must satisfy the three
requirements for complete preemption.4
Although the Fifth Circuit has acknowledged that the PREP Act creates a cause of
action for willful misconduct, it has reserved the question of whether that cause of action
satisfies the requisites for complete preemption. Manyweather, 40 F.4th 237, n.6 (“We
reserved that question in Mitchell, 28 F.4th at 587, and again reserve it here.”).
Considering the narrow application of complete preemption, we are not convinced that
the PREP Act is one of those rare statutes where a federal statutory scheme is so
comprehensive that it entirely supplants state-law intentional tort claims.
4 Recall that, to establish complete preemption, Defendants must show: “(1) the statute contains
a civil enforcement provision that creates a cause of action that both replaces and protects the
analogous area of state law; (2) there is a specific jurisdictional grant to the federal courts for
enforcement of the right;” and (3) there is a clear congressional intent that the federal cause of
action be exclusive. Mitchell, 28 F.4th at 585 (citing Gutierrez v. Flores, 543 F.3d 248, 252 (5th
Cir. 2008)).
In conclusion, we find that the PREP Act does not completely preempt Plaintiff's
claims. Because Defendants have not carried their burden of demonstrating that removal
was proper, this action must be remanded.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that this action is REMANDED to the state court from which it
was removed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
August 11, 2022 C C . t
fT)
ae TAY C SANEY
U D STATES DISTRICT JUDGE
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