# Manyweather v. Woodlawn Manor Inc

> District Court, W.D. Louisiana · October 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10194510

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** October 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

FELIX MANYWEATHER, ET AL. CASE NO. 3:21-CV-1317

VERSUS JUDGE TERRY A. DOUGHTY.

WOODLAWN MANOR AND MAG. JUDGE KAYLA D. MCCLUSKY
LOUISIANA NURSING HOME
ASSOCIATION LIABILITY TRUST

REPORT AND RECOMMENDATION
Before the undersigned is a motion to dismiss for failure to state a claim and for improper
venue filed by Defendants, Woodlawn Manor, Inc., doing business as The Oaks (“The Oaks”)
and Louisiana Nursing Home Association Liability Trust (“LNHAT”), together referred to as
Defendants. [doc. #7-1]. Plaintiffs, Felix Manyweather, Kimmieko Manyweather, Alison
Tucker, Emanami Kirk, Timonthy Manyweather, individually and on behalf of the unopened
Succession of Barbara Jean McGraw (“Plaintiffs”) oppose this motion. [doc. #15].
For the reasons assigned below, it is RECOMMENDED that the Court GRANT the
motion IN PART, DISMISS Plaintiffs’ claims for relief under the Americans with Disabilities
Act and Medicare and Medicaid regulations, and REMAND Plaintiffs’ remaining claims to the
4th Judicial District Court of Ouachita Parish, Louisiana.
I. BACKGROUND
On March 11, 2020, the World Health Organization declared Covid-19, a virus causing
flu-like symptoms and often more severe complications such as blood clots, strokes, and death, a
global pandemic. [doc. #1-2]. During this time, Plaintiffs’ mother, Barbara Jean McGraw, (the
“Decedent”) was a resident at The Oaks, a nursing facility in Monroe, Louisiana. Id. Plaintiffs
claim that, during this time, the Decedent contracted Covid-19 due to The Oaks’s failure to
implement recommended guidelines and regulations relating to Covid-19. Id. Specifically,
Plaintiffs claim that The Oaks failed to restrict all non-essential visitors from the facility, screen

residents, staff, and visitors for Covid-19 symptoms, and provide PPE to staff and residents. Id.
Plaintiffs also allege that The Oaks failed to cancel group activities, restrict residents to their
rooms, and enforce social distancing. Id. According to Plaintiffs, Defendants’ failure to comply
with these regulations violated state and federal law, as well as public health guidelines. Id.
After Plaintiffs filed this suit in state court, Defendants filed a notice of removal,
claiming that Plaintiffs assert claims “arising under” federal law within the meaning of 28 U.S.C.
§ 1331. [doc. #1]. Specifically, Defendants allege that Plaintiffs have made claims under the

Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101, et seq.; federal
Medicare and Medicaid laws and regulations (“CMS1 regulations”); and the Public Readiness
and Emergency Preparedness Act (“PREP Act”), 41 U.S.C. § 247d-6d, 247d-6e. Id. Although
Defendants concede that Plaintiffs allege state law claims for “gross negligence,” Defendants
claim the PREP Act expressly preempts all state law claims that Plaintiffs have asserted. [doc.
#1].

The PREP Act, passed in 2005, is a federal statute which provides the Secretary of Health
and Human Services (the “Secretary”) the authority to issue declarations determining that “a
disease or other health condition or other threat to health constitutes a public health emergency.”
41 U.S.C. § 247d-6d(b). Once a declaration has been issued, the PREP Act applies broad

1 CMS is an abbreviation for the Centers for Medicare and Medicaid Services.
immunity to covered persons for liability arising from the use or administration of a covered
countermeasure relating to the subject of the declaration. 41 U.S.C. § 247d-6d(a)(1). In March
2020, the Secretary issued a declaration relating to Covid-19. 85 Fed. Reg. 15198 (Mar. 17,
2020). Accordingly, the PREP Act immunizes conduct which leads to Covid-19 related death or

injuries, provided the defendant constitutes a “covered person” and the covered person’s alleged
conduct constitutes “covered countermeasures.”
II. LEGAL STANDARD
The Federal Rules of Civil Procedure allow dismissal of a claim for “failure to state a

claim upon which relief can be granted.” FED.R.CIV.P. 12(b)(6). To state a claim, the pleading
must contain a “short and plain statement . . . showing that the pleader is entitled to relief . . .”
FED.R.CIV.P. 8(a)(2). While the pleading need not assert detailed factual allegations, it must
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). A claim is plausible on its face “when the pleaded factual content allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 663 (2009).

In deciding a motion to dismiss, the Court must accept as true all of the plaintiff’s
allegations, unless the allegation is a “threadbare recital[] of a cause of action’s elements,
supported by mere conclusory statements.” Id. Although legal conclusions may be asserted,
“they must be supported by factual allegations” to gain the assumption of truth. Id. at 664. A
well-pleaded complaint may proceed even if it strikes the Court that actual proof of the asserted
facts is improbable, and that recovery is unlikely. Twombly, 550 U.S. at 556. Nevertheless, the
Court may dismiss a complaint “if it clearly lacks merit – for example, where there is an absence
of law to support a claim of the sort made.” Thurman v. Med. Transp. Mgmt., Inc., 982 F.3d
953, 956 (5th Cir. 2020) (citations and internal quotation omitted).

III. DISCUSSION
Plaintiffs assert multiple claims against Defendants for their alleged failure to properly
protect Plaintiffs from exposure to Covid-19. [doc. #1-2]. Plaintiffs expressly bring state law
claims for negligence and/or gross negligence and allude to claims arising under the ADA and
CMS. Id. In their motion to dismiss, Defendants list a host of reasons that Plaintiffs’ claims
should be dismissed. [doc. #7-1]. Among others, Defendants contend, inter alia, that Plaintiffs’

claims are barred by the PREP Act and two Louisiana state statutes, all of which Defendants
claim provide immunity for the decisions they made relating to Covid-19. Id. Defendants also
assert that Plaintiffs’ ADA claims under Title III must be dismissed because they seek damages
when Title III provides for only injunctive relief and, alternatively, because of Plaintiffs’ failure
to exhaust administrative remedies prior to seeking judicial relief. Id. Defendants also move for
dismissal of Plaintiffs’ claim under the CMS regulations because there is no private cause of
action in favor of third parties. Id.

A. Plaintiffs’ Claims Under the ADA
Defendants argue that Plaintiffs’ ADA claims must be dismissed because Plaintiffs failed
to exhaust administrative remedies before filing suit. Id. They further contend that Title III of
the ADA provides only for injunctive relief, not the damages Plaintiffs seek. Id. In their reply
memorandum, Plaintiffs failed to oppose Defendants’ ADA arguments. [doc. # 15].

Plaintiffs’ Petition includes language mirroring that of Title III, indicating that they
intended to assert this type of ADA claim. [doc. #1-2]. Title III of the ADA provides that “[n]o
individual shall be discriminated against on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or leases to), or operates a place of
public accommodation.” 42 U.S.C. § 12182(a).

To state a prima facie claim under Title III of the ADA, a plaintiff must show: (1)
that she is “disabled” as defined by the ADA; (2) that the defendant is a private
entity that owns, leases, or operates a place of public accommodation; and (3) that
the defendant discriminated against the plaintiff because of the plaintiff's
disability. 42 U.S.C. § 12182(a).

Kramer v. Lakehills S., LP, No. A-13-CA-591, 2014 WL 51153, at *6 (W.D. Tex. Jan. 7, 2014).
While it is undisputed that employment-related disability claims under Title I of the ADA require
administrative exhaustion prior to filing suit, it is not settled whether Title III of the ADA
requires exhaustion. Wyatt v. Liljenquist. 96 F.Supp.2d 1062, 1064 (C.D. Cal. 2000).
Courts’ disagreement on whether plaintiffs with Title III must exhaust administrative
remedies before seeking judicial relief stems from 42 U.S.C. § 12188, which states that the
remedies and procedures of Title VII of the Civil Rights Act, specifically 42 U.S.C. § 2000a-
3(a), also apply to claims under Title III of the ADA. 42 U.S.C. § 12188. Section 2000a-3(a)
itself is limited to providing claimants with the right to seek injunctive relief. 42 U.S.C. §
2000a-3(a). However, 42 U.S.C. § 2000a-3(c) requires claimants to give notice to the
appropriate state or local authority before seeking judicial relief. 42 U.S.C. § 2000a-3(c).
Essentially, courts disagree on whether 42 U.S.C. § 12188 incorporates only Section 2000a-3(a),
or Section 2000a-3(c) as well. Under one line of cases, courts have found that, because Section
2000a-3(a) is limited by the notice requirement in Section 2000a-3(c), both sections apply to
claimants seeking relief under Title III of the ADA and thus, claimants bringing Title III claims
must comply with the notice requirement. Howard v. Cherry Hills Cutters, Inc., 935 F.Supp.
1148, 1149-50 (D. Colo. 1997); Daigle v. Friendly Ice Cream Corp., 957 F.Supp. 8, 10 (D. N.H
1997). Under a second line of cases, other courts have found that because the ADA incorporates
only Section 2000a-3(a), not Section 2000a-3(c), administrative exhaustion is not required for
Title III claims. See, e.g., Soignier v. Am. Bd. of Plastic Surgery, No. 95 C 2736, 1996 WL 6553,

at *1 (N.D. Ill. Jan. 8, 1996), aff’d 92 F.3d 547 (7th Cir. 1997), cert. denied, 519 U.S. 1093
(1997); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 139 (2d Cir. 2007).
Although it does not appear that the Fifth Circuit has decided the issue, the district courts
in the Fifth Circuit that have addressed this issue have followed the second line of cases. See
Kirk v. Rental Assoc., P.A., No. 07-CA-009, 2007 WL 2048833, at *5 (W.D. Tex. July 16, 2007)
(“Title III of the ADA does not require exhaustion of state or federal administrative remedies.”);
Meriweather v. ABC Training/Safety Council Tex. Gulf Coast Chapter, No. 15-cv-862, 2016 WL

8711726, at *3 (N.D. Tex. Oct. 24, 2016) (“Unlike Title I, neither Title II nor Title III of the
ADA requires that a plaintiff file an administrative complaint with the EEOC or otherwise
exhaust state or federal administrative remedies before filing a lawsuit.”). Although the analyses
in Kirk and Meriweather are not robust, both cases rely on an in-depth statutory analysis
conducted in Wyatt v. Liljenquist. 96 F.Supp.2d at 1062. In that case, a California district court
looked to the plain meaning of 42 U.S.C. § 12188 and determined that “[b]y its express terms,
the ADA adopts only Section 2000a-3(a), which says nothing about notice or exhaustion
remedies. Furthermore, Section 2000a-3(a) makes no reference to subsection (c)” and therefore,
“[t]he unambiguous language of Section 12188(a)(1) defeats” the argument that the ADA

incorporates a notice requirement. Id. at 1064. The undersigned agrees and does not recommend
dismissal on Plaintiffs’ Title III ADA claims on the basis of lack of notice.
Defendants further argue, however, that they are entitled to dismissal of Plaintiffs’ Title
III claims for damages because that Title provides for injunctive relief, not damages. [doc. #7-
1]. The undersigned agrees. See 42 U.S.C. § 12188 (“The remedies and procedures set forth in
section 2000a–3(a) of [Title 42 U.S.C.] are the remedies and procedures [Title III] provides to

any person who is being subjected to discrimination . . .”); see also Plumley v. Landmark
Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir. 1997) (“Damages are not available for a Title III
ADA claim brought by a private party, but a private party may seek injunctive relief.”). To the
extent that Plaintiffs seek damages under Title III of the ADA, it is recommended that
Defendants’ motion to dismiss be granted and these claims be dismissed with prejudice.2
B. Plaintiffs’ Claims Under CMS Regulations

Defendants move for dismissal of Plaintiffs’ claims under CMS regulations on the basis
that the laws and regulations governing Medicare and Medicaid reimbursements do not provide a
cause of action for third parties. [doc. #7-1]. Plaintiffs also failed to oppose Defendants’
arguments on these claims in their reply memorandum. [doc. #15].

While Plaintiffs cite several times in their Petition to Defendants’ violations of CMS
guidelines or protocols relating to Covid-19, [doc. #1-2], it is unclear whether they are
attempting to assert a cause of action under the CMS regulations or merely using the alleged
violations as evidence of Defendants’ gross negligence. Unlike their references to the ADA,
Plaintiffs do not cite language from CMS guidelines or make clear which protocols Defendants
allegedly failed to implement. Rather, Plaintiffs’ references to CMS violations are vague and
generally circle back to Plaintiffs’ claims for negligence. For example, Plaintiffs state that

2 As Plaintiffs did not seek injunctive relief, their ADA claim will be dismissed in its entirety if
the district court adopts this Report and Recommendation.
Defendants failed to comply with guidelines from the CMS and “[a]s a result, [sic] of
defendant’s negligence and/or gross negligence as set forth herein and hereinabove, the
Defendant’s facility became rampant with the coronavirus which spread to the staff and
residents.” [doc. #1-2, p. 12]. A fair reading of the Complaint suggests that Plaintiffs do not

allege a cause of action based on violations of CMS regulations, but, rather, use those alleged
violations as evidence of Defendants’ negligence.
Out of an abundance of caution, however, the undersigned recommends that the Court
dismiss Plaintiffs’ claims, if any, under the CMS regulations. As Defendants properly point out,
there is no private right of action for violations of CMS regulations. See, e.g., Steward v. Abbott,
189 F.Supp.3d 620, 639, n. 14 (W.D. Tex. 2016) (collecting cases); see also Drain v. Drs.
Hospice of Ga., Inc., No. 18-cv-2947, 2018 WL 9868572, at *2 (N.D. Ga. July 6, 2018

(“Congress did not create a remedy for private individuals to enforce the conditions of
participation in the regulations at issue—that responsibility falls to CMS.”). Accordingly, it is
recommended that the Court grant Defendants’ motion to dismiss and dismiss with prejudice
Plaintiffs’ claims, if any, under the CMS regulations.
C. Plaintiffs’ Claim for Negligence and/or Gross Negligence

If Plaintiffs’ claims under the ADA and CMS regulations are dismissed, only Plaintiffs’
state law claims of negligence and gross negligence will remain. Defendants posit that these
claims are expressly preempted by federal law and, thus, confer onto this Court subject matter
jurisdiction under 28 U.S.C. § 1331. [doc. #1].
Express or complete preemption exists 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 (1987) (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). As a
result, state law claims which are completely preempted effectively become federal claims and
thus, allow federal courts to exercise subject matter jurisdiction. A finding of complete

preemption requires a defendant claiming preemption to 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 clear Congressional
intent that claims brought under the federal law be removable.
Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000). This is a stringent standard which
few federal statutes have been able to meet.3 Aaron v. Nat’l Union Fire Ins. Co. of Pittsburg,
Pa., 876 F.2d 1157, 1161 (5th Cir. 1989).
Defendants insist that Plaintiffs’ state law negligence claims are preempted by the PREP
Act; however, the majority of courts to decide the issue have found exactly the opposite. See
Dupervil v. All. Health Operations, LLC, 516 F.Supp.3d 238, 255 (E.D. N.Y. 2021). Most
notably, the Third Circuit, the first appeals court to decide the issue, recently found that the
PREP Act does not completely preempt state law negligence claims. Est. of Maglioli v. Alliance
HC Holdings, LLC, No. 20-2833 (3d Cir. Oct. 20, 2021). Additionally, “[n]early every district
court to consider this issue,” including several within the Fifth Circuit, “has concluded the PREP
Act is not a complete preemption statute.” Est. of Cowan v. LP Columbia KY, LLC, No. 20-
00118, 2021 WL 1225965 (W.D. KY Mar. 31, 2021); see also Schuster v. Percheron

3 In fact, the Supreme Court has recognized only three statutes which completely preempt state
law: The Labor Management Relations Act, ERISA, and the National Bank Act. Additionally,
“[t]he Fifth Circuit has found that the Carmack Amendment and Interstate Commerce
Commission Termination Act completely preempt certain claims related to interstate shipping.”
Russell v. Irving Place Assocs., No. 20-cv-805 (W.D. La. Aug. 5, 2021).
Healthcare, Inc., 493 F.Supp.3d 533 (N.D. Tex. 2021); Brannon v. J. Ori, LLC, No. 21-cv-
00058, 2021 WL 2339196 (E.D. Tex. 2021); Russell v. Irving Place Assocs., Docket No. 5:20-
cv-805 (W.D. La., Monroe Division, Aug. 5, 2021); Jones, 2021 WL 3416993. Specifically,
courts have found that the PREP Act fails the stringent test the Fifth Circuit requires the statute

to meet to be considered a complete preemption statute. The undersigned agrees.
First, to qualify as a complete preemption statute, the PREP Act must contain a civil
enforcement provision which both replaces and protects the analogous area of law. Johnson, 214
F.3d at 632. Many courts have decided, and this Court agrees, that it does not. “[T]he PREP Act
is, at its core, an immunity statute; it does not create rights, duties, or obligations.” Dupervil,
516 F.Supp.3d at 251. Rather, when the PREP Act applies, it provides tortfeasors immunity for
injuries “caused by, arising out of, relating to, or resulting from the administration of a covered

countermeasure . . .” 42 U.S.C. § 247d-6d(a). Instead of filing suit against the tortfeasor, injured
persons are limited to seeking recovery from the “Covered Countermeasure Process Fund,” a
compensation fund administered by the Secretary. Id. A claimant may file suit in the United
States District Court for the District of Columbia; however, “only when the case involves death
or serious physical injury proximately caused by willful misconduct of a covered person, and
then only after the claimant has exhausted administrative avenues and declined to accept
compensation from the” compensation fund. Russell, No. 20-cv-805, at *11. The PREP Act is
not analogous to a state law tort suit. Except for claims of willful misconduct, plaintiffs are
barred from bringing their suit or recovering in district courts. Moreover, even for the very

limited exception regarding willful misconduct claims, plaintiffs must exhaust administrative
remedies, and may instead choose recovery under the compensation fund. Thus, the PREP Act
fails to meet this requirement for complete preemption.
Second, to be considered a complete preemption statute, the PREP Act must specifically
grant jurisdiction to federal courts to enforce a right. Johnson, 214 F.3d at 632. However, the
PREP Act does not provide that claims resulting from the administration of covered
countermeasures must be brought in federal courts. Instead, it confers jurisdiction to the

Secretary who has sole discretion of the compensation fund. The only claims which the PREP
Act confers jurisdiction onto federal courts to hear are those involving willful misconduct.
However, as discussed supra, those claims must first be administratively exhausted, and the
claimant may instead choose to be compensated from the compensation fund. Moreover, only
one federal district court has jurisdiction to hear these claims, and it must be heard in front of a
panel of three judges. Therefore, except for an incredibly limited situation, suits brought
pursuant to the PREP Act cannot be brought in federal court. Thus, the PREP Act does not meet
the second requirement for complete preemption.

Finally, to satisfy complete preemption, there must be evidence that Congress clearly
intended claims brought under the PREP Act to be removable. Johnson, 214 F.3d at 632. To
show this intent, Defendant seem to point to the Secretary’s Fourth Amendment to his
Declaration which stated that his Declarations ‘“must’ be construed in accordance with
subsequent Advisory Opinions,” which renders them “as no longer ‘advisory,’ but as having the
same authority as the Declaration itself which, in turn, is granted the force of law.” [doc. #7-1].
On January 8, 2021, the Secretary issued an advisory opinion which claimed that the PREP Act
“is a ‘complete preemption’ statute” because it establishes “a federal cause of action,

administrative or judicial, as the only viable claim.” Advisory Op. 21-01. However, this opinion
does not mold the PREP Act into a complete preemption statute. In the advisory opinion itself,
the Secretary cautions that “[i]t is not a final agency action or final order. It does not have the
force or effect of law.” Id. Therefore, “even assuming arguendo that Congress intended to
delegate authority to the Secretary . . . ‘generally to make rules carrying the force of law,’ the
Office of the General Counsel interpretation relied upon by Defendant here explicitly was not
‘promulgated in the exercise of that authority.’” Jones, 2021 WL 3416993, at *3. Therefore,

this element, like the previous two, fails. Without this required showing of Congressional intent,
the PREP Act cannot meet the final requirement for complete preemption.
In support for their claim that the PREP Act completely preempts state claims for
negligence relating to nursing homes’ failure to prevent the spread of Covid-19, Defendants
point to a recent opinion from this Court. [doc. #1]. In Rachal v. Natchitoches Nursing &
Rehabilitation Ctr., LLC, the Court found that the PREP Act expressly preempts state law by
comparing it to the Air Transportation Safety and System Stabilization Act (the “ATSSSA”), a

recovery statute passed after the September 11, 2001 terrorist attacks which the Second Circuit
held expressly preempted state law claims. Docket No. 1:21-cv-00334 (W.D. La., Alexandria
Division, Apr. 30, 2021). The purpose of the ATSSSA was to provide relief to the victims of the
attacks, and in order to do so, created a Victim’s Compensation Fund under which those injured
by the attacks could recover. 49 U.S.C. § 40101; In re WTC Disaster Site, 414 F.3d 352, 357 (2d
Cir. 2005). In Rachal, this Court found that the PREP Act, which also established relief through
a compensation fund, was analogous to the ATSSSA and therefore, is also a complete
preemptive statute. No. 1:21-cv-00334, at *n. 3.

However, there is a crucial distinction between the ATSSSA and the PREP Act, namely
that in addition to a compensation fund, the ATSSSA created an exclusive federal cause of action
for claims arising out of the terrorist attacks. See Air Transportation Safety and System
Stabilization Act of 2001, Pub. L. No. 107-42, § 408, 115 Stat. 230. 240-41 (“There shall exist a
federal cause of action for damages arising out of the hijacking and subsequent crashes of
American Airlines flights 11 and 77, and United Airlines flights 93 and 175, on September 11,
2001 . . . . [T]his cause of action shall be the exclusive remedy for damages arising out of the
hijacking and subsequent crashes of such flights.”). In determining that the ATSSSA preempted

state claims arising out of the terrorist attacks, the Second Circuit concluded that “it was [the]
exclusive federal remedy . . . that gave the statute its extraordinary preemptive force, such that
any claim within its scope was really a federal-law claim.” Lopez v. Advanced HCS, LLC, No.
21-cv-00470, 2021 WL 1259302, at *4 (N.D. Tex., Apr. 5, 2021). The PREP Act, on the other
hand, creates no such federal cause of action other than those actions for willful misconduct,
“and even those claims require administrative exhaustion before they may be filed in federal
court.” Bolton v. Gallatin Ctr. for Rehabilitation & Healing, LLC, No. 20-cv-00683, 2021 WL
1561306, at *7 (M.D. Tenn. Apr. 21, 2021). The majority of the courts that have decided the
issue have found that this distinction is pivotal to the comparison between the PREP Act and the
ATSSSA and precludes the statutes from being considered analogous. See Id.; Russell, No. 1:20-

cv-805, at *15; Jones, 2021 WL 3416993, at *5; Schuster, 493 F.Supp.3d at 539; Bolton, 2021
WL 1561306, at *7. The undersigned agrees and recommends that the Court join the majority of
other courts that have found that this difference requires the conclusion that the PREP Act is not
completely preempted by federal law.
D. Supplemental Jurisdiction

Having found that Plaintiffs’ state law claims are not expressly preempted by federal law,
the Court’s only basis for subject matter jurisdiction over the claims remaining in this lawsuit is
under supplemental jurisdiction, 28 U.S.C. § 1367(c). Section 1367(c) provides federal district
courts the discretion to exercise or decline supplemental jurisdiction after dismissing all claims
over which the court has original jurisdiction. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 639 (2009). The Fifth Circuit has said that when all federal claims in a case have been
disposed of before trial, the district court should use its discretion to decline to exercise
supplemental jurisdiction over the remaining state law claims. Brim v ExxonMobil Pipeline Co.,

213 Fed.App’x 303, 305 (5th Cir. 2007). The Court explained that this is because in “case[s] in
which all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine – judicial economy, convenience, fairness, and comity –
will point toward declining to exercise jurisdiction over the remaining state-law claims.” Parker
& Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 586-87 (5th Cir. 1992) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, n. 7 (1988)) (quotations omitted).
Here, weighing these factors clearly indicates that the Court should decline to exercise

supplemental jurisdiction. First, judicial economy would be best served by declining to exercise
jurisdiction because this case is still in the very early stages of litigation. Defendants removed
on May 18, 2021 – less than five months from the date of this report and recommendation. [doc.
#1]. No discovery has been performed, nor have any motions, other than the instant motion to
dismiss, been adjudicated. Second, it is convenient to remand this suit because the parties will
not have to perform a significant amount of redundant or burdensome work after the case is
transferred back to state court. Even if Defendants are required to file in state court an additional
motion to dismiss or the equivalent of one, Defendants’ position on why the Court should
dismiss Plaintiffs’ negligence claims will likely remain the same. Therefore, while filing the

same argument in a different court may present some inconvenience to Defendants, any
inconvenience will be negligible at best. Third, federalism and comity weigh in favor of
declining jurisdiction. The issues remaining in this case involve questions of substantive
Louisiana law, and, although negligence by itself is not particularly novel or complex, nursing
homes’ negligence as it relates to failed implementation of Covid-19 protocols is relatively new.
Accordingly, this issue, which based in state law negligence, should be decided by Louisiana
state courts. Finally, remanding this case is not unfair to either party. The parties will not be

required to repeat the discovery process, and as the Court already mentioned, any state court
motion to dismiss that Defendants may file will likely be on the same basis as this motion.
Therefore, this factor weighs in favor of declining to exercise supplemental jurisdiction.
Accordingly, for the reasons set forth above, IT IS RECOMMENDED that Defendants’
motion to dismiss be GRANTED IN PART and DENIED IN PART,4 Plaintiffs’ ADA and
CMS claims be DISMISSED, and Plaintiffs’ remaining state law claims for negligence and/or
gross negligence be REMANDED to the 4th Judicial District Court of Ouachita Parish,

Louisiana.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of
Civil Procedure, the parties have fourteen (14) days from service of this Report and
Recommendation to file specific, written objections with the Clerk of Court. A party may
respond to another party’s objections within fourteen (14) days after being served with a copy
thereof. A courtesy copy of any objection or response for extension of time shall be furnished to

the District Judge at the time of filing. Timely objections will be considered by the District
Judge before he makes a final ruling.

4 The undersigned does not reach Defendants’ remaining arguments in their motion to dismiss,
and they will be free to raise those arguments to the state court (or to re-urge them in this form if
the district judge declines to adopt the recommendation of remand).
A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED
FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THIS
REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE
SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR,
FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL
FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.

THUS DONE in Chambers on this 22nd day of October 2021.

~~ yy
r fi cles □□
KAYZADYE MCCILUSKY
UNITED STATES MAGISTRATE JUDGE

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10194510. Public record. Not legal advice.