Leroy v. Hume

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

JEFFRY LEROY, as Co-Guardian of SILVIA LEROY, : No. 20-CV-5325 (ARR)

Incapacitated Person, SHIRLEY LICIN, as Co-Guardian : (CLP)

of SILVIA LEROY, Incapacitated Person, and JEFFRY :

LEROY, Individually, : NOT FOR ELECTRONIC

: OR PRINT PUBLICATION

Plaintiffs, :

:

-against- : OPINION & ORDER

:

HEATHER HUME, M.D., MINDY BRITTNER, M.D., :

MIRA JOHN, M.D., MOUNT SINAI HOSPITAL, MARY :

TOUSSAINT-MILORD, M.D., KANIZ B. BANU, M.D., :

MAHREEN AKRAM, M.D., JAMIE CELESTIN- :

EDWARDS, CNM, BROOKDALE HOSPITAL MEDICAL :

CENTER, JILL BERKIN, M.D., and KEVIN TROY, M.D. :

:

Defendants. :

:

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ROSS, United States District Judge:

Silvia Leroy suffered a severe case of COVID-19 in the spring of 2020 that left her with

debilitating brain damage and quadriplegia. Plaintiffs Jeffry Leroy and Shirley Licin, Mrs. Leroy’s

guardians, brought suit in state court against the medical personnel who treated her and their

affiliated hospitals, alleging medical malpractice and other claims. Defendants removed the case

to this court based on, inter alia, federal officer jurisdiction under 28 U.S.C. § 1442. On August

12, 2021, I granted plaintiffs’ motion for remand to Kings County Supreme Court. Defendants

now move for a permanent stay of my August 12th Remand Order, pending resolution of their

appeal of the same to the United States Circuit Court for the Second Circuit. For the reasons

discussed herein, defendants’ motion is DENIED.

BACKGROUND

The instant motion relates to plaintiffs’ suit against defendants for the medical treatment

that Mrs. Leroy received as a patient of Brookdale Hospital Medical Center (“Brookdale”) and

Mount Sinai Hospital (“Mount Sinai”) in the spring of 2020. Compl. ¶ 39, ECF No. 27-4. While

Mrs. Leroy was a patient at Brookdale, she was not tested for COVID-19 despite one of her

doctors, defendant Mary Toussaint-Milord, M.D., requesting that she be so tested. Id. ¶ 36. While

she was a patient at Mount Sinai, she suffered from, inter alia, pulmonary embolism, cardiac arrest,

and clotting. Id. ¶ 39. Mrs. Leroy’s illness resulted in serious permanent injuries, including brain

damage and quadriplegia. Id.

On October 7, 2020, plaintiffs sued defendants in state court for “reckless misconduct and

wanton, willful, reckless and/or grossly negligent medical malpractice.” Id. at p. 4. Defendants

removed the case to federal court on November 3, 2020. Notice of Removal 1, ECF No. 1. On

January 8, 2021, Plaintiffs moved to remand the case back to state court. Mot. Remand, ECF No.

27. I granted the motion on August 12, 2021. Remand Order, ECF No. 38. Subsequently,

defendants requested an automatic 30-day stay of enforcement of my Remand Order (“August

12th Order” or “Remand Order”), Mot. 30-Day Stay, ECF No. 39, which I granted on August 25,

2021. Defendants thereafter filed notices of appeal of my Remand Order to the Second Circuit.

Mount Sinai Notice of Appeal, ECF No. 44; Brookdale Notice of Appeal, ECF No. 43.

The 30-day stay of enforcement of my August 12th Order expires September 24, 2021. On

September 10, 2021, pursuant to F.R.A.P. § 8(a)(1), defendants filed the instant motion to stay my

Remand Order pending resolution of their appeal.1 Defs.’ Mot. Stay Order (“Defs.’ Mot.”), ECF

1 My August 12th Order discussed the Secretary of Health and Human Services’ (“HHS”)

Declaration Under the Public Readiness and Emergency Preparedness Act for Medical

Countermeasures Against COVID-19, 85 Fed. Reg. 15,198 (“Declaration”), which, at the time of

No. 45.

DISCUSSION

I. Legal Standard.

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes on its docket with economy of time and effort for itself, for

counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). However, a “stay is

not a matter of right, even if irreparable injury might otherwise result.” Virginian Ry. Co. v. United

States, 272 U.S. 658, 672 (1926). Instead, it is a discretionary determination dependent on the

specifics of the matter before the court. Nken v. Holder, 556 U.S. 418, 433–34 (2009). “The party

requesting a stay bears the burden of showing that the circumstances justify an exercise of that

discretion,” and the court is to apply the traditional four-factor standard to determine the stay’s

propriety: “(1) whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)

where the public interest lies.” Id. (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see

also Uniformed Fire Officers Ass’n v. de Blasio, 973 F.3d 41, 48 (2d Cir. 2020).

While the first two factors are the most important, “[t]he degree to which a factor must be

present varies with the strength of the others; ‘more of one [factor] excuses less of the other.’” U.S.

S.E.C. v. Daspin, 557 F. App’x 46, 48 (2d Cir. 2014) (quotations omitted) (alterations in original).

In turn, “[t]he probability of success [on the merits] that must be demonstrated is inversely

parties’ briefing, had been amended seven times. The Declaration has since been amended twice

more to “expand the authority for certain Qualified Persons authorized to prescribe, dispense, and

administer covered countermeasures….” Eighth Amended Declaration, 86 Fed. Reg. 41,977 (Aug.

4, 2021); see also Ninth Amended Declaration, 86 Fed. Reg. 51,160 (Sept. 14, 2021). The

arguments in defendants’ present motion are not based on the Eighth or Ninth Declaration, nor do

the amended Declarations impact my previous analysis.

proportional to the amount of irreparable injury plaintiff[] will suffer absent the stay. Simply

stated, more of one excuses less of the other.” Paulsen v. All Am. Sch. Bus Corp., No. 13-CV-3762

(KAM), 2013 WL 5744483, at *2 (E.D.N.Y. Oct. 23, 2013) (quoting Mohammed v. Reno, 309

F.3d 95, 101 (2d Cir. 2002)).

II. A Stay is Not Warranted Under the Traditional Four-Factor Test.

Defendants seek appellate review of my order remanding their case to state court under 28

U.S.C. § 1447(d), which, as relevant here, allows a party to appeal a remand order when the case

was originally removed based on federal officer jurisdiction. See 28 U.S.C. § 1447(d); id. § 1442.

In support of their request for a permanent stay pending appeal, defendants appear to make three

arguments. First, they argue that a stay is necessary to preserve their right to seek appellate review

of my Remand Order denying federal officer jurisdiction. Defs.’ Mot. 5. Defendants contend that

absent a permanent stay, their appellate right under 28 U.S.C. § 1447(d) will be rendered “largely

meaningless” because while their appeal is pending, they will be forced to do the very thing that

federal officer jurisdiction protects against: litigate in state court.2 Id. at 9. Second, defendants

suggest that there is a risk of conflicting federal and state decisions absent a stay. Because my

entire remand order will be reviewable on appeal,3 defendants assert that the Second Circuit is

2 In support of their argument, defendants suggest that in 28 U.S.C. § 1447(d), Congress intended

to allow for complete appellate review of a remand order “before the remand order is effectuated.”

Defs.’ Mot. 8 (citing BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1536

(2021)) (emphasis added). As evidence of this intent, defendants point to the Supreme Court’s

recent decision in BP P.L.C. v. Mayor & City Council of Baltimore, where, in describing the history

of 28 U.S.C. § 1447(d), the Court submitted that “Congress [] deemed it appropriate to allow

appellate review before a district court may remand a case [removed pursuant to 28 U.S.C. § 1442]

to state court,” id. at 1536 (emphasis added). However, 28 U.S.C. § 1447(d) is silent as to the

timing of effectuating a remand order. Absent express statutory language, I decline to read into the

Court’s dicta on congressional intent.

3 The Supreme Court recently clarified that 28 U.S.C. §1447(d) authorizes appellate courts to

review district courts’ remand orders in their entirety—not merely the aspects related to federal

likely to address “the scope of the [Public Readiness and Emergency Preparedness Act’s (the

“PREP Act”)] immunity and preemption of state law claims.” Id. at 6. According to defendants,

this could lead to confusion if the state and federal courts rule differently on the PREP Act’s ambit.

Id. Finally, and related to their first two arguments, defendants argue that the issuance of a stay is

necessary to avoid “unnecessary and duplicative simultaneous litigation.” Id. at 13. I evaluate

defendants’ claims under the four-factor standard affirmed in Nken v. Holder, 556 U.S. 418.

A. Defendants are not likely to succeed on the merits.

When seeking a stay pending appeal, a movant “need not always show a ‘probability of

success’ on the merits; instead, the movant need only present a substantial case on the merits when

a serious legal question is involved and show that the balance of equities weighs heavily in favor

of granting the stay.” LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994) (quoting Laurenzo v. Miss.

High Sch. Activities Ass’n, 708 F.2d 1038, 1042 (5th Cir.1983) (per curiam)). Defendants argue

there is a “substantial case on the merits” involving “serious legal questions” on two grounds: 1)

in cases like the instant one, “some” courts have found removal proper, and 2) no appellate court

has yet assessed the propriety of federal officer jurisdiction for healthcare workers responding to

the COVID-19 pandemic. Defs.’ Mot. 12.

In support of their first claim, defendants cite two district court cases wherein removal was

held proper on the grounds that the PREP Act provides complete preemption. See id. (citing Garcia

v. Welltower OpCo Grp. LLC, No. 20-CV-2250 (JVS), 2021 WL 492581, at *7 (C.D. Cal. Feb.

officer jurisdiction. BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532, 1538

(2021). Accordingly, the Second Circuit’s review of my August 12th Order will examine each of

the three grounds for removal initially asserted by defendants—federal preemption under the

Public Readiness and Emergency Preparedness Act (the “PREP Act”), federal officer jurisdiction

(raised only by Brookdale defendants), and federal question jurisdiction. See Mount Sinai Opp’n

Remand 22–34, ECF No. 30; Brookdale Opp’n Remand 22–29, ECF No. 28.

10, 2021) and Rachal v. Natchitoches Nursing & Rehab. Ctr. LLC, No. 12-CV-334 (DCJ), 2021

U.S. Dist. LEXIS 105847, *3 n.3 (W.D. La. Apr. 30, 2021)).4 However, in my August 12th Order,

I declined to follow those two decisions for reasons I need not rearticulate here. Over the past

eighteen months, several dozen district courts have addressed the argument of complete

preemption put forth by defendants, and the overwhelming consensus among them is that claims

like plaintiffs’ are not completely preempted by the PREP Act. See, e.g., Garcia v. N.Y.C. Health

and Hosps. Corp., No. 20-CV-9970 (CM), 2021 WL 1317178, at *1 (S.D.N.Y. Apr. 8, 2021);

Padilla v. Brookfield Healthcare Ctr., No. 21-CV-2062 (DMG), 2021 WL 1549689, at *4–5 (C.D.

Cal. Apr. 19, 2021) (collecting cases and noting that “[n]early every other federal court addressing

the issue of complete preemption has found that the PREP Act is not a statute with complete

preemptive effect”); Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, No. 20-CV-683 (WDC),

2021 WL 1561306, at *5–8 (M.D. Tenn. Apr. 21, 2021); Shapnik v. Hebrew Home for the Aged

at Riverdale, No. 20-CV-6774 (LJL), 2021 WL 1614818, at *10–16 (S.D.N.Y. Apr. 26, 2021);

Elliot v. Care Inn of Edna LLC, No. 20-CV-3185 (KGS), 2021 WL 2688600, at *4 n.1 (N.D. Tex.

June 30, 2021) (collecting cases). This consensus remains unchanged.5 See, e.g., Dorsett v.

4 Defendants additionally cite a Fifth Circuit order denying interlocutory appeal of a district court

decision finding federal officer jurisdiction in the COVID-19 context. See Fields v. Brown, No.

20-CV-475, 2021 WL 510620 (E.D. Tex. Feb. 11, 2021), petition for interlocutory appeal denied,

No. 21-CV-90021 (5th Cir. June 21, 2021) (per curiam). In Fields, the plaintiff-employees sued

the defendant-employers for requiring plaintiffs to continue going into work notwithstanding a

statewide stay-at-home order. Id. at *1. Defendants in the present case suggest that the Fifth

Circuit’s denial of the petition for interlocutory appeal implies that “[the Court] saw no obvious

error in [the district court’s] holding.” Defs.’ Mot. 12. However, the Fifth Circuit provided no

reason for its denial, and defendants interpretation is therefore conjectural. See Fields, No. 21-CV-

90021 (5th Cir. June 21, 2021) (per curiam) (stating in full, “It is ordered that the motion for leave

to appeal from the interlocutory order [of the district court] is denied.”).

5 In addition to arguing that some district courts have found removal proper in analogous cases,

defendants suggest that there is a “substantial case on the merits” involving “serious legal

questions” because the Secretary of Health and Human Services’ favored removal in his Fourth

Highlands Lake Ctr., LLC, No. 21-CV-910 (KKM), 2021 WL 3879231, at *5–11 (M.D. Fla. Aug.

31, 2021); Est. of Melvia Jones v. Beverly W. Healthcare, LLC, No. 21-cv-5417 (AB), 2021 WL

4197133, at *4 (C.D. Cal. Sept. 14, 2021).

Defendants’ argument that there is a “substantial case on the merits” because “there has

been no appellate treatment of the issue of federal officer jurisdiction for health care personnel

participating in this nation’s COVID-19 response,” Defs.’ Mot. 12, is likewise unavailing. That

the issue of federal officer jurisdiction in the context of COVID-19 is one of first impression on

appeal does not render defendants’ federal officer claim more colorable. The Supreme Court has

clearly stated that “simply complying with [federal] law,” as defendants have shown, is not enough

to constitute “acting under” a federal officer. Watson v. Phillip Morris Cos., 551 U.S. 142, 152

(2007) (emphasis omitted). Even a “highly regulated” defendant must show more than “federal

regulation alone.” Id. at 153. Instead, a defendant must show that a “special relationship” of

“delegation” exists between the federal entity and themself. Id. at 157. Thus, courts in this circuit

have held that health care personnel responding to the COVID-19 crisis are not “acting under” a

federal officer. See Dupervil v. All. Health Operations, LCC, 516 F. Supp. 3d 238, 260–61

(E.D.N.Y. 2021) (finding that defendants, a nursing home and certain of its employees, failed to

show that they were anything more than “highly regulated” private persons complying with federal

laws pertaining to COVID-19, and that therefore the federal officer removal statute did not apply);

see also Garcia, 2021 WL 1317178, at *2 (collecting cases finding “that hospitals that are

following federal guidelines during the current pandemic emergency are not ‘acting under’ federal

Amended Declaration and his January 8, 2021 Advisory Opinion 21-01. See Defs.’ Mot. 12.

However, neither the Fourth Amended Declaration nor Advisory Opinion 21-01 is entitled to

Chevron deference, and I already rejected identical arguments in my August 12th Order. See

Remand Order 10.

officers for the purpose of federal officer jurisdiction”). Considering the consensus among district

courts on this matter, it is immaterial that appellate courts have not yet reviewed federal officer

jurisdiction in the context of the COVID-19 health care response.

It is clear defendants have merely repurposed the same arguments made in their Opposition

to Plaintiffs’ Motion for Remand to suggest there is a “substantial case on the merits” involving

“serious legal questions.” But even under this first prong’s lower standard for success on the

merits, defendants cannot prevail because there is near unanimity among district courts

nationwide—and unequivocal agreement among district courts in the Second Circuit—that there

is no federal subject matter jurisdiction, based on either complete preemption under the PREP Act

or federal officer jurisdiction, in cases like the instant one. I therefore find that, contrary to

defendants’ contention, this factor weighs against the issuance of a stay pending appeal.

B. Defendants do not face irreparable injury.

A harm is irreparable “where, but for the grant of equitable relief, there is a substantial

chance that upon final resolution of the action the parties cannot be returned to the positions they

previously occupied.” Brenntag Int’l Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir.

1999) (discussing factor in relation to preliminary injunctive relief). Turning to each of defendants’

arguments for a stay pending appeal—to give effect to their statutory right to appeal; to avoid

confusion from conflicting decisions; and, relatedly, to avoid “unnecessary and duplicative”

litigation, Defs.’ Mot. 13—I find that the balance of factors weighs against issuing such relief.6

6 “The sole exception” to immunity from liability under the PREP Act is a claim of “death or

serious physical injury proximately caused by willful misconduct.” 42 U.S.C. § 247d-6d(d)(1).

The United States District Court for the District of Columbia retains exclusive federal jurisdiction

over such claims, which can be brought only after the plaintiff has exhausted administrative

remedies. Id. §§ 247d-6d(e)(1), 247d-6e(d)(1). Additionally, an order denying a motion to dismiss

or a motion for summary judgment, based on a willful misconduct claim, is immediately

appealable to the United States Court of Appeals for the District of Columbia Circuit. Id. § 247d-

1. Confusion from conflicting state and federal court decisions

Defendants aver that once in state court, they will move for dismissal based on, inter alia,

PREP Act immunity. Id. at 6. As on appeal the Second Circuit’s review of the PREP Act may

“involve a determination as to the scope of the PREP Act in the first place,” defendants assert there

is a risk of conflicting decisions between the federal and state courts. Id. For example, defendants

point to a possible scenario in which the state court dismisses their claims based on PREP Act

immunity while the Second Circuit “holds simultaneously” that there is federal subject matter

jurisdiction after assessing the extent of immunity and preemption under the PREP Act.7 Id.

However, defendants’ argument rests on several tenuous assumptions: that the Second Circuit will

not review defendants’ appeal before the state court adjudicates defendants’ prospective motion to

dismiss, that the Second Circuit will find federal subject matter jurisdiction, and finally, that the

6d(e)(10). In the introduction of their Motion to Stay, defendants briefly suggest that if the state

court adjudicates the merits of plaintiffs’ claims before the Second Circuit has weighed in on the

scope of PREP Act immunity, defendants will lose the benefits of this limited exclusive federal

jurisdiction. Defs.’ Mot. 5–6. This argument is not subsequently raised in defendants’ legal

analysis but appears once more in their Reply, again without any substantive explanation. See

Defs. Reply Pls.’ Opp’n 2, ECF No. 47 (“[I]f the appeal is successful, all of the proceedings in

State Court will have been in vein [sic] due to a lack of subject matter jurisdiction.”). Defendants’

argument is both difficult to follow as it relates to the plaintiffs’ claims and inadequately

developed. Moreover, as explained in my Remand Order, although plaintiffs’ complaint nominally

asserts a cause of action “for reckless misconduct, wanton, willful, reckless, and/or grossly

negligent medical malpractice,” Compl. 3 (emphasis added), plaintiffs do not appear to assert any

claims for “willful misconduct,” as defined by the PREP Act, in the substance of their complaint,

see 42 U.S.C. §§ 247d-6d(c), 247d-6d(d)-(e). I therefore decline to evaluate the merits of

defendants’ contention.

7 Defendants additionally argue that as the PREP Act provides immunity from suit and liability,

its benefits will be lost if they “are forced to litigate in state court while the appeal is pending.”

Defs.’ Mot. 10. It is unclear what defendants intend by this argument. The defense of immunity

under the PREP Act may be made in state court, and defendants themselves state their intent to

raise it on a motion to dismiss plaintiffs’ claims. Id. 6. I can only understand defendants’ argument,

therefore, as a judgment impugning the state court’s ability to evaluate PREP Act immunity. I

reject this position.

state court and Second Circuit will disagree on the scope of immunity under the PREP Act. These

assumptions are speculative at best. However, to be irreparable, “harm must be truly imminent,

and not mere possible injury, or remote and speculative injury.” Daspin, 557 F. App’x at 48

(citation omitted). Defendants’ argument that a stay is appropriate to avoid the risk of conflicting

decisions is therefore unavailing.

2. Preserving the purpose of the right to appeal under 28 U.S.C. § 1447(d)

Defendants contend that absent the issuance of a stay, their right to appeal will be rendered

“nugatory,” Vision Bank v. Bama Bayou, LLC, No. 11-cv-568 (KD), 2012 WL 1592985, at *2

(S.D. Ala. May 7, 2012), because they will be forced to litigate in state court, which federal officer

jurisdiction—the basis of their appeal—protects against, Defs.’ Mot. 9 (citing Northrop Grumman

Tech. Servs., Inc. v. DynCorp Int'l LLC, No. 16-cv-534 (JCC/IDD), 2016 WL 3346349, at *3 (E.D.

Va. June 16, 2016) (collecting cases finding that a stay is appropriate where necessary to preserve

the purpose of a party’s statutory right to appeal)).

I find that although this claim gestures toward irreparable injury, it does not amount to one

in the present case. Defendants right to appeal is rendered “nugatory” only if the state court reaches

the merits of plaintiffs’ claims before the Second Circuit, on appeal, holds that I improperly

remanded plaintiffs’ case. However, the likelihood of this outcome is, once again, not “truly

imminent,” but rather a “remote and speculative” injury. Daspin, 557 F. App’x at 48. Defendants

have already filed a notice of Appeal in the Second Circuit. See Mount Sinai Notice of Appeal;

Brookdale Notice of Appeal. Upon remand, pre-trial proceedings will first commence in state

court. Because the parties will first have to brief pretrial motions before proceeding to discovery,

it is highly unlikely that Kings County Supreme Court will reach the merits of defendants’ case

before the Second Circuit considers defendants’ appeal. And, as plaintiffs correctly submit, “any

discovery obtained in state court [will] be relevant and applicable if the case [is] later removed to

federal court.” Pls.’ Opp’n Mot. Stay 13 (“Pls.’ Opp’n”), ECF No. 46 (quoting Manier v. Medtech

Prods., Inc., 29 F. Supp. 3d 1284, 1288 (S.D. Cal. 2014)). Therefore, contrary to defendants’

assertion, defendants will not be irreparably injured by the start of state court proceedings while

their appeal awaits resolution.

3. Duplicative and unnecessary litigation

While duplicative litigation can warrant a stay in certain circumstances, see, e.g., Jock v.

Sterling Jewelers, Inc., 738 F. Supp. 2d 445, 448 (S.D.N.Y. 2010), “[m]ere litigation expense,

even substantial and unrecoupable cost, does not constitute irreparable injury,” Renegotiation Bd.

v. Bannercraft Clothing Co., Inc., 415 U.S. 1, 24 (1974). As just explained, see supra, Discussion

II.B.2, when the present case returns to state court, pretrial proceedings will begin. Any subsequent

discovery obtained in state court will be relevant to the case’s adjudication even if the case is

subsequently removed to federal court. As such, I do not find litigation of parties’ claims in state

court to amount to irreparable injury to defendants.

C. Harm to plaintiffs is substantial.

Contrary to defendants’ contention, plaintiffs stand to suffer substantially if state court

proceedings are stayed. Mrs. Leroy has debilitating brain damage and quadriplegia, Compl. ¶ 39,

and requires constant care, Pls.’ Opp’n 9. This is not an instance where plaintiffs can be returned

“to the positions they previously occupied” if ultimately awarded money damages. See Brenntag

Int’l Chems., Inc., 175 F.3d at 249 (“[B]ecause monetary injury can be estimated and compensated,

the likelihood of such injury usually does not constitute irreparable harm.”). Here, any delay in

receiving money damages compounds Mrs. Leroy’s harm because plaintiffs, Mrs. Leroy’s

guardians, need financial help to ensure Mrs. Leroy can access the care she requires now. Pls.’

Opp’n 9 (submitting that plaintiffs “need financial help and they simply cannot wait any longer to

proceed with [their] case”).

While I will not speculate whether Mrs. Leroy’s guardians will ultimately be successful on

their claims, I find that the risk of postponed compensation is significant enough to weigh against

the issuance of a stay.

D. Public interest would not be furthered by a stay.

Defendants submit that a stay pending appeal would further public interest by

“facilitat[ing] adequate appellate review of potentially dispositive questions of law that would have

bearing on COVID-19 litigation across the country.” Defs.’ Mot. 14–15. But, as discussed above,

see supra Discussion II.A, district courts nationwide have ruled nearly unanimously on the very

questions of law raised by defendants. That is because the body of law governing defendants’

arguments for removal is clear: defendants lack subject matter jurisdiction.

Here, public interest favors prompt resolution of plaintiffs’ claims. The Second Circuit has

recognized that “there is a public interest in having [plaintiffs] who might be entitled to recovery

receive compensation while still living and able to use it to cover medical costs and improve the

quality of their lives.” In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170–71 (2d Cir.

2007) (finding that harm to defendants, who might be entitled to immunity from suit, was

outweighed by hastening plaintiffs’ trial). Mrs. Leroy “has suffered a life-threatening injury.” Pls.’

Opp’n 12. Although it remains to be seen whether plaintiffs will succeed on their claims, I find

that public interest favors moving plaintiffs’ case forward so that if plaintiffs do prevail, Mrs.

Leroy is not “denied compensation while she is alive and when she needs it the most.” Id.

As each prong in the four-factor test weighs against defendants, I find that the issuance of

a stay pending resolution of defendants’ appeal is improper.

III. A Stay Pending Resolution of Defendants’ Appeal is Not Otherwise Warranted.

A review of decisions on like motions in other circuits does not shift the balance of factors

in defendants’ favor. It is true that at least two district courts, cited by defendants in support of

their motion, have stayed the remands of similar actions pending resolution of the defendants’

appeals. See Riggs v. Country Manor La Mesa Healthcare Ctr., No. 21-CV-331 (CAB), 2021 WL

2103017, at *4 (S.D. Cal. May 25, 2021); Est. of Maglioli v. Andover Subacute Rehab. Ctr. I, No.

21-CV-2114 (KM), 2021 WL 2525714, at *7 (D.N.J. June 18, 2021) (finding public interest

warrants a stay because the issue before the court is of national importance, similar actions have

been filed nationwide, and there is a risk of conflicting decisions).8 However, I find these

authorities unpersuasive. The Riggs court did not apply the traditional four-factor test in reaching

the conclusion to stay enforcement of their remand order. Instead, the stay was granted in the

court’s discretion, without significant analysis. See Riggs, 2021 WL 2103017, at *4 (granting

plaintiff’s motion to remand but providing a stay pending resolution of the defendant’s appeal, if

noticed within 14 days).9

While the district court in Estate of Maglioli applied Nken’s four-factor standard, at the

time of the court’s decision the case was in a unique posture and distinct from the matter before

me. The defendants in that case, which concerned related actions brought against nursing care

facilities for their COVID-19-related care, twice removed their cases to federal court. Following

the defendants’ first removal, the plaintiffs moved to remand to state court, which the court

8 Defendants also cite Burris v. Fairmount Long Term Care, in which the parties had not appealed

to the Third Circuit, but the court stayed proceedings pending resolution of the circuit’s decision

in Estate of Maglioli v. Andover Subacute Rehabilitation Center I, 2021 WL 2525714. No. 21-CV-

80 (E.D. Pa. March 9, 2021).

9 The court in Burris similarly did not apply the four-factor standard. 21-CV-80 at 7–8.

granted. The defendants subsequently appealed the court’s remand order. This appeal was pending

in the Third Circuit when the United States Department of Health and Human Services (“HHS”)

issued its Advisory Opinion 21-01. The defendants thereafter removed the cases once more,

arguing that HHS’s opinion was controlling authority that conferred federal jurisdiction. Est. of

Maglioli, 2021 WL 2525714, at *3. The plaintiffs again filed motions to remand their actions, after

which defendants filed a motion to stay the case pending resolution of the appeal. Accordingly,

unlike the present case, where defendants are asking that I stay proceedings in state court, the

defendants in Estate of Maglioli asked the district court to pause its own proceedings pending

review of its initial remand order by the Third Circuit. In finding that a stay was warranted, the

court noted that “[t]he exercise of such power [to stay] is particularly appropriate where the

outcome of another case may substantially affect or be dispositive of the issues in a case pending

before a district court.” Id. at *5 (citation omitted) (emphasis added).

Additionally, in reaching its decision to stay the plaintiffs’ pending remand motions, the

Estate of Maglioli court relied in part on HHS’s then-newly issued Advisory Opinion 21-01, which

“while not controlling,” addressed issues relevant to the defendants’ federal subject matter

jurisdiction arguments. Id. at *6. However, in my August 12th Order, I found that Advisory

Opinion 21-01, which is not entitled to Chevron deference, was not persuasive, and thus did not

weigh against granting plaintiffs’ motion to remand. See Remand Order 8–10.

Finally, other courts have declined to issue stays pending appeals when granting motions

for remand in analogous cases. See Smith v. Colonial Care Ctr., Inc., No. 21-CV-494 (RGK), 2021

WL 1087284, at *9 (C.D. Cal. Mar. 19, 2021); Thomas v. Century Villa Inc., No. 21-CV-3013

(MCS), 2021 WL 2400970, at *7 (C.D. Cal. June 10, 2021).

CONCLUSION

Thus, given that the none of defendants’ arguments for a stay pending resolution of their appeal

prevails, I deny their motion. The Clerk of Court is directed to inform Kings County Supreme

Court of my decision at close of business on September 27, 2021.

SO ORDERED.

/s/

Allyne R. Ross

United States District Judge

Dated: September 24, 2021

Brooklyn, New York