Gerber v. Forest View Center

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NONA GERBER, as Administrator of the

Estate of

RIDA ZAVULUNOVA, Deceased.

MEMORANDUM AND ORDER

Plaintiff, 21-cv-05359 (KAM)(JRC)

-against-

FOREST VIEW CENTER,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Nona Gerber, individually, and as Administrator of the

Estate of Rida Zavulunova (“Plaintiff”) commenced this action

against Forest View Center (“Defendant”), a domestic

corporation, in the New York State Supreme Court, Queens County

for negligence, gross negligence, wrongful death, medical and

nursing malpractice, and violations of New York Public Health

Law. Defendant then removed the action to federal court.

Plaintiff now moves to remand the action to state court for lack

of subject matter jurisdiction. Plaintiff’s motion to remand is

GRANTED, because this Court lacks subject matter jurisdiction

over this action.

Background

I. Background

For approximately two months, from March 9, 2020 until

May 5, 2020, Rida Zavulunova was a resident of Defendant’s

nursing home facility in Forest Hills, New York. (ECF No. 1-1,

Summons and Complaint (“Compl.”) at 12.) On or about May 1,

2020, the plaintiff-decedent’s condition began to deteriorate,

and she was diagnosed with Coronavirus (“COVID-19”) on May 5,

2020. (Id. at 20.) The plaintiff-decedent died later that day.

(Id. at 6.)

Thereafter, on August 24, 2021, Plaintiff Nona Gerber,

as administrator of the estate of the plaintiff-decedent Rida

Zavulunova and Zavulunova’s next of kin, filed a complaint

against Defendant in the Supreme Court of the State of New York,

Queens County. (Id. at 4.) Plaintiff claimed that “as a direct

and foreseeable consequence of Defendant’s failures in taking

safety precautions during the Covid-19 pandemic,” Zavulunova

unnecessarily lost her life. (Id. at 6.) Plaintiff asserted

one statutory claim for violation of New York Public Health Law

§ 2801-D and 2803-C and six common law claims for negligence,

gross negligence, conscious pain and suffering, wrongful death,

and medical malpractice. (See id. at 9-24.)

Defendant timely removed the case to this Court on

September 27, 2021. (See ECF No. 1, Notice of Removal

(“Notice”).) Defendant claims there are multiple grounds for

this Court to exercise subject matter jurisdiction over the

action: (1) the Complaint “arises under” federal law pursuant to

28 U.S.C. §§ 1441(a), 1442(a)(1), 1446, and the Public Readiness

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

6d, 247d-6e (2020), and related federal regulations, thereby

completely pre-empts Plaintiff’s claims; (2) the Court has

jurisdiction under the Grable doctrine, see Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005),

because “there are substantial federal legal and policy . . .

interests within the meaning of [the Grable doctrine] in having

a unified, whole-of-nation response to the COVID-19 pandemic

among federal, state, local, and private-sector entities”; and

(3) the Court has jurisdiction under the federal officer removal

statute pursuant to 28 U.S.C. § 1442(a)(1), because Defendant

acted at all relevant times “to assist, or to help carry out,

the duties or tasks of the federal superior,” by helping “carry

out the duties of the [federal] government” with respect to

treating and preventing the spread of COVID-19. (ECF No. 9,

Memorandum of Law in Opposition to Motion to Remand (“Opp.

Mot.”) at 14, 35, 37; see ECF No. 1, Notice.)

Pending before the Court is Plaintiff’s motion to

remand to state court. (ECF No. 11, Motion to Remand (“Mot.”).)

Plaintiff argues that remand is warranted because the Complaint

alleges only state law tort claims, the parties are not diverse,

and the action is not removable on any of the bases proffered by

Defendant. Defendant opposes this motion. (See ECF No. 9, Opp.

Mot.)

II. PREP Act

The PREP Act generally provides that:

a covered person shall be immune from suit and

liability under Federal and State law with

respect to all claims for loss caused by,

arising out of, relating to, or resulting from

the administration to or the use by an

individual of a covered countermeasure if a

declaration [by the Secretary of Health and

Human Services] has been issued with respect

to such countermeasure.

42 U.S.C. § 247d-6d(a)(1). In March 2020, the Secretary of

Health and Human Services (the “Secretary”) issued a declaration

under the PREP Act to provide immunity from liability for

activities related to medical countermeasures against COVID-19

(the “Declaration”). 85 Fed. Reg. 15,198 (Mar. 17, 2020). The

Declaration was most recently amended on January 7, 2022. Tenth

Amended Declaration, 87 Fed. Reg. 982 (Jan. 7, 2022).

A “covered countermeasure” under the PREP Act is

defined as “a qualified pandemic or epidemic product”; “a

security countermeasure”; a “drug . . . , biological

product . . . , or device . . . that is authorized for emergency

use in accordance with section 564, 564A, or 564B of the Federal

Food, Drug, and Cosmetic Act [‘FDCA’]”; or “a respiratory

protective device that is approved by the National Institute for

Occupational Safety and Health [‘NIOSH’], ... and that the

Secretary determines to be a priority for use during a public

health emergency declared under section 247d of this title.” 42

U.S.C. § 247d-6d(i)(1).

“[A]dministration” of covered countermeasures “means

physical provision of the countermeasures to recipients, or

activities and decisions directly relating to public and private

delivery, distribution and dispensing of the countermeasures to

recipients, management and operation of countermeasure programs,

or management and operation of locations for purpose of

distributing and dispensing countermeasures.” Declaration, 85

Fed. Reg. at 15,202. The Declaration further specifies, “it is

the Secretary’s interpretation that, when a Declaration is in

effect, 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.” Id.

In December 2020, the Secretary amended the

Declaration “to make explicit that there can be situations where

not administering a covered countermeasure to a particular

individual can fall within the PREP Act” and the liability

protections it affords. Fourth Amended Declaration, 85 Fed.

Reg. at 79,194. Accordingly, “[w]here there are limited Covered

Countermeasures, not administering a Covered Countermeasure to

one individual in order to administer it to another individual

can constitute ‘relating to ... the administration to ... an

individual’ under [the PREP Act].” Id. at 79,197. In other

words, “[p]rioritization or purposeful allocation of a Covered

Countermeasure, particularly if done in accordance with a public

health authority’s directive, can fall within the PREP Act” and

its liability protections. Id. The Fourth Amended Declaration

specifically contemplates a situation where there is a limited

number of COVID-19 vaccines and a covered person under the Act

chooses not to administer vaccines to those in less vulnerable

populations so that those in more vulnerable populations may be

vaccinated. See id.

A “covered person” under the Act includes

manufacturers, distributors, program planners, and qualified

persons who prescribed, administered, or dispensed such

countermeasures. 42 U.S.C. § 247d-6d(i)(2). In turn, a

“qualified person” includes any licensed health professional or

other person authorized to prescribe, administer, or dispense

covered countermeasures, including hospitals, nursing homes and

other entities. Id. § 247d-6d(i)(8). A “program planner”

includes “persons” who supervise or administer a program with

respect to the administration, provision, or use of a covered

countermeasure, or who “provides a facility to administer or use

a covered countermeasure in accordance with a declaration [from

the Secretary].” Id. § 247d-6d(i)(6). Neither the text of the

PREP Act nor the Secretary’s Declaration expressly includes

nursing homes within the definition of “covered person.” The

Fourth Amended Declaration, however, makes clear that the PREP

Act “must be construed in accordance with the Advisory Opinions

of the Office of the General Counsel [of the U.S. Department of

Health and Human Services (“HHS”)] (Advisory Opinions),” and the

Declaration expressly incorporates such Advisory Opinions.

Fourth Amended Declaration, 85 Fed. Reg. at 79,194–95.

When the PREP Act applies, it provides broad immunity

“from suit and liability under Federal and State law,” 42 U.S.C.

§ 247d-6d(a)(1), and the remedy available to an injured

plaintiff is an administrative “Covered Countermeasure Process

Fund” (“Process Fund”), administered by the Secretary, that

provides “timely, uniform, and adequate compensation to eligible

individuals for covered injuries directly caused by the

administration or use of a covered countermeasure,” see id. §§

247d-6e(a), 247d-6e(b)(1). “No court of the United States, or

of any State, shall have subject matter jurisdiction to review,

whether by mandamus or otherwise, any action by the [HHS]

Secretary” in administering the Process Fund, id. § 247d-

6e(b)(5)(C), and compensation through the Process Fund “shall be

exclusive of any other civil action or proceeding for any claim

or suit this section encompasses,” id. § 247d-6e(d)(4). The

only exception is if there is “death or serious physical injury

proximately caused by willful misconduct,” id. § 247d-6d(d)(1),

in which case an action may “be filed and maintained only in the

United States District Court for the District of Columbia,” id.

§ 247d-6d(e)(1). There is an administrative exhaustion

requirement before a plaintiff may bring a suit for injury

proximately caused by willful misconduct, id. § 247d-6e(d)(1),

and a plaintiff may instead elect to accept compensation from

the Process Fund, if the Secretary determines that the plaintiff

qualifies, id. § 247d-6e(d)(5).

The PREP Act also includes a provision expressly

preempting state laws that conflict with the terms of the

statute:

During the effective period of a declaration

[by the Secretary], or at any time with

respect to conduct undertaken in accordance

with such declaration, no State or political

subdivision of a State may establish, enforce,

or continue in effect with respect to a

covered countermeasure any provision of law or

legal requirement that—

(A) is different from, or is in conflict with,

any requirement applicable under this

section; and

(B) relates to the design, development,

clinical testing or investigation,

formulation, manufacture, distribution,

sale, donation, purchase, marketing,

promotion, packaging, labeling, licensing,

use, any other aspect of safety or

efficacy, or the prescribing, dispensing,

or administration by qualified persons of

the covered countermeasure, or to any

matter included in a requirement

applicable to the covered countermeasure

under this section or any other provision

of this chapter, or under the [FDCA].

Id. § 247d-6d(b)(8).

In sum, the PREP Act—with one limited exception for

“willful misconduct”—provides covered persons with immunity from

suit for all claims of loss caused by, arising out of, relating

to, or resulting from the administration to or use by an

individual of covered countermeasures, which include certain

drugs, biological products, and devices. Id. Covered persons

broadly include individuals as well as private and public

entities, and the administration of a covered countermeasure can

include “purposeful allocation” of the countermeasure, including

decisions not to provide a countermeasure to an individual. Id.

The PREP Act expressly preempts conflicting state laws and, in

the view of the Secretary, implicates “substantial” federal

legal and policy interests. Id.

Standard of Review

To adjudicate whether an action was properly removed

from state court, a federal district court must have original

jurisdiction pursuant to either 28 U.S.C. §§ 1331 or 13321. See

1 The defendant does not rely on § 1332 (diversity jurisdiction) as a basis for

removal.

28 U.S.C. § 1441. Under 28 U.S.C. § 1331, “[t]he district

courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. “It is long settled law that a

cause of action arises under federal law only when the

plaintiff’s well-pleaded complaint raises issues of federal

law.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 62 (1987).

Following the removal of an action to federal court,

“[i]f 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). Defendant bears the burden

of demonstrating that federal subject matter jurisdiction

exists. See, e.g., Wilds v. United Parcel Serv., Inc., 262 F.

Supp. 2d 163, 171 (S.D.N.Y.2003) (citing, inter alia, United

Food & Comm. Workers Union, Local 919, AFL–CIO v. CenterMark

Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994))

(“On a motion to remand, the party seeking to sustain the

removal, not the party seeking remand, bears the burden of

demonstrating that removal was proper.” (quotation omitted)).

“Unless that burden is met, the case must be remanded back to

state court. At [the motion to remand] stage . . . , the party

seeking remand is presumed to be entitled to it unless the

removing party can demonstrate otherwise.” Id. (quoting

Bellido–Sullivan v. Am. Int’l Grp., Inc., 123 F. Supp. 2d 161,

163 (S.D.N.Y. 2000)). Therefore, in the context of a motion to

remand, “federal courts construe the removal statute narrowly,

resolving any doubts against removability.” Sherman v. A.J.

Pegno Constr. Corp., 528 F. Supp. 2d 320, 325 (S.D.N.Y. 2007)

(quoting Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d

Cir. 1994)).

Discussion

Defendant has not carried its burden of demonstrating

that removal is proper, and therefore, remand is required.

“This Court is not the first to consider whether a federal court

has jurisdiction to hear claims against a health care facility

arising from a patient’s COVID-19-related death or illness.”

Ranieri v. Providence Rest, Inc., No. 22-CV-1030 (NRB), 2022 WL

2819411, at *1 (S.D.N.Y. 2022) (collecting cases); Rivera v.

Eastchester Rehab. & Health Care LLC, No. 22-CV-02019 (CM), 2022

WL 2222979, at *2 (S.D.N.Y. June 21, 2022) (collecting cases).

The unanimous consensus among courts that have considered the

issues presented by the instant motion to remand is that removal

is improper and remand of the case back to state court is

required. This Court does not see any reason to deviate from

the established authority and respectfully rejects Defendant’s

arguments that there is federal jurisdiction in this case under

the preemptive force of the PREP Act, the Grable doctrine, or

the federal officer removal statute.

I. Removal Under 28 U.S.C. § 1441(a) Was Improper

Pursuant to 28 U.S.C. § 1441(a), “any civil action

brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed by the

defendant.” In other words, a claim may only be removed to

federal court if it could have been filed in federal court

originally. See Fax Telecomms. Inc. v. AT&T, 138 F.3d 479, 486

(2d Cir. 1998). Where, as here, there is no diversity of

citizenship, the Court must have federal question jurisdiction

for removal to be proper. Marcus v. AT&T Corp., 138 F.3d 46, 52

(2d Cir. 1998) (citing Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987)).

“The presence or absence of federal question

jurisdiction is governed by the well-pleaded complaint rule.”

Id. Pursuant to this rule, “federal question jurisdiction

exists only when the plaintiff’s own cause of action is based on

federal law, and only when plaintiff’s well-pleaded complaint

raises issues of federal law.” Id. (citations omitted). Thus,

the plaintiff—as the “master of the complaint”—can “avoid

federal jurisdiction by pleading only state claims even where a

federal claim is also available.” Id. (citing Caterpillar, 482

U.S. at 392).

Notably, a defendant cannot “evade [the well-pleaded

complaint] rule by raising a federal question in its responsive

pleadings and then attempting to remove on that basis.” Calabro

v. Aniqa Halal Live Poultry Corp., 650 F.3d 163, 166 (2d Cir.

2011) (per curiam) (citing Holmes Grp., Inc. v. Vornado Air

Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002)). It is

therefore not enough that a defendant assert as grounds for

removal a federal (1) defense, Caterpillar, 482 U.S. at 393; New

York v. Shinnecock Indian Nation, 686 F.3d 133, 138 (2d Cir.

2012) (“It is not enough that the complaint anticipates a

potential federal defense.”); (2) counterclaim, Vaden v.

Discovery Bank, 556 U.S. 49, 60 (2009) (“Nor can federal

jurisdiction rest upon an actual or anticipated counterclaim.”);

Sovereign Bank, N.A. v. Lee, 968 F. Supp. 2d 515, 518 (E.D.N.Y.

2013); or (3) third-party claim, see, e.g., Calabro, 650 F.3d at

166 (holding that a defendant was “objectively unreasonable” in

arguing for removal based on federal claims in its third-party

complaint); Certain Underwriters at Lloyd’s London v. Art

Crating, Inc., No. 12-CV-5078(NGG)(VMS), 2014 WL 123488, at *8

(E.D.N.Y. 2014) (“[T]hird-party pleadings do not provide a basis

for removal of the initial action in almost all cases.”).

Defendant asserts that federal question jurisdiction

exists in this case under 28 U.S.C. § 1331, which grants

district courts original jurisdiction “of all civil actions

arising under the Constitution, laws, or treaties of the United

States.” (See ECF No. 1, Notice at 14.) However, Plaintiff’s

Complaint pleads no federal claim on its face, instead alleging

“garden-variety state law claims” of common-law negligence,

gross negligence, wrongful death, and medical and nursing

malpractice, as well as violations of New York Public Health

Law. (See ECF No. 1-1, Compl. at 9–24.); see also Rivera v.

Eastchester Rehab. & Health Care LLC, No. 22-CV-02019 (CM), 2022

WL 2222979, at *2 (S.D.N.Y. June 21, 2022). “Even if some of

these claims implicate or are preempted by federal law by way of

an affirmative defense, such defenses do not appear on the face

of the well-pleaded complaint, and accordingly do not authorize

removal to federal court.” Dupervil v. All. Health Operations,

LCC, 516 F. Supp. 3d 238, 249 (E.D.N.Y. 2021); see Metro. Life,

481 U.S. 63; Franchise Tax Bd. v. Constr. Laborers Vacation Tr.

for S. Cal., 463 U.S. 1, 14 (1983); Gully v. First Nat’l Bank,

299 U.S. 109, 116 (1936); see also Marcus v. AT&T Corp., 138

F.3d 46, 52 (2d Cir. 1998) (“Generally, a complaint that pleads

only state law causes of action may not be removed to federal

court even where Congress has chosen to regulate the entire

field of law in the area in question.”).

There are, however, exceptions to the well-pleaded

complaint rule. For one, a state law claim may be completely

preempted by federal law in a particular area such that the

claim “is really one of federal law”. Franchise Tax Bd., 463

U.S. at 13 (quotation omitted). For another, under the Grable

doctrine, a well-pleaded state-law claim may still involve “some

substantial, disputed question of federal law [as] a necessary

element,” as Defendant alleges here. Id. The Court addresses

each of these exceptions in turn.

A. The PREP Act Does Not Establish Complete Preemption

Defendant argues that PREP Act affords the Court

subject matter jurisdiction over this action pursuant to the

complete preemption doctrine. (ECF No. 9, Opp. Mot. at 1.)

Complete preemption “converts an ordinary state common-law

complaint into one stating a federal claim for purposes of the

well-pleaded complaint rule.” Metro. Life, 481 U.S. at 65.

Where “a federal statute ‘wholly displaces the state-law cause

of action,’ such that the claim, ‘even if pleaded in terms of

state law, is in reality based on federal law,’” complete

preemption applies, and a defendant may properly remove the

state-law claim. McCulloch Orthopaedic Surgical Servs., PLLC v.

Aetna Inc., 857 F.3d 141, 145 (2d Cir. 2017) (quoting Aetna

Health Inc. v. Davila, 542 U.S. 200, 207-08 (2004)).

The complete preemption doctrine only applies where

the federal statute exhibits “extraordinary” preemptive force.

Metro. Life, 481 U.S. at 65. The Supreme Court has identified

just three statutes that meet this high standard: § 301 of the

Labor-Management Relations Act (“LMRA”), § 502(a) of the

Employee Retirement Income Security Act (“ERISA”), and §§ 85 and

86 of the National Bank Act. Sullivan v. Am. Airlines, Inc.,

424 F.3d 267, 272 (2d Cir. 2005); see Whitehurst v. 1199SEIU

United Healthcare Workers East, 928 F.3d 201, 206 (2d Cir.

2019). “[T]o determine whether a federal statute completely

preempts a state-law claim within its ambit, [the court] must

ask whether the federal statute provides the exclusive cause of

action for the asserted state-law claim,” and if so, the claim

is removable under 28 U.S.C. § 1441. Sullivan, 424 F.3d at 275-

76 (internal quotations omitted). “Put another way, ‘[o]nly

state-court actions that originally could have been filed in

federal court may be removed to federal court by the

defendant.’” Id. (quoting Caterpillar, 482 U.S. at 392; see

Franchise Tax Bd., 463 U.S. at 13 (holding that if plaintiff’s

causes of action filed in state court “come within the original

jurisdiction of the federal courts, removal was proper”).

Here, the PREP Act does not provide an exclusive cause

of action for the claims within its scope. Whether the PREP Act

is a complete preemption statute has been thoroughly analyzed by

a court in this District in Dupervil v. Alliance Health

Operations, LLC, 516 F. Supp. 3d 238 (E.D.N.Y. 2021). In

Dupervil, the plaintiff brought state law claims of negligence,

gross negligence, wrongful death, and medical malpractice in New

York State Supreme Court related to the death of a COVID-19

patient that occurred while under the care of the nursing home

defendants. Id. at 242. There, as here, the defendants removed

the action to federal court arguing that the court had subject

matter jurisdiction because, inter alia, the PREP Act completely

preempted plaintiff’s claims. Id. The Honorable Pamela K. Chen

remanded the case back to state court, finding that the PREP Act

is not a complete preemption statute because it “does not

provide the exclusive cause of action for claims that fall

within its scope.” Id. at 249-50.

That the PREP Act does not exhibit the “extraordinary”

preemptive force required for complete preemption has been

decided by several district courts throughout the Second

Circuit. See Escobar v. Mercy Med. Ctr., No. 21CV02101JMAARL,

2022 WL 669366, at *2 (E.D.N.Y. Mar. 7, 2022); Rivera-Zayas v.

Our Lady of Consolation, 2021 WL 3549878, at *2 (E.D.N.Y. 2021);

Leroy v. Hume, No. 20-CV-5323, 2021 WL 3560876, at *6 (E.D.N.Y.

2021); Garcia v. N.Y.C. Health & Hosps. Corp., No. 20-CV-9970,

2021 WL 1317178, at *1 (S.D.N.Y. Apr. 8, 2021); Shapnik v.

Hebrew Home for Aged at Riverdale, No. 20-CV-6774, 2021 WL

1614818 (S.D.N.Y. Apr. 26, 2021); see also Saldana v. Glenhaven

Healthcare LLC, No. 20-56194, 2022 WL 518989, at *5 (9th Cir.

Feb. 22, 2022).

Following the analysis previously presented in

Dupervil, courts in this District noted that the Act is, “at its

core, an immunity statute; it does not create rights, duties, or

obligations.” 516 F. Supp. 3d 251 (E.D.N.Y. 2021). Except for

the narrow exception around “willful misconduct” claims, the

PREP Act does not allow claims within its scope to be brought in

state or federal court and, instead, confers the Secretary of

Health and Human Services agency with the “sole authority” to

adjudicate claims involving the PREP Act. Id.

Similarly, in the controlling Second Circuit case

Sullivan, the relevant statute (the Railway Labor Act or “RLA”)

gave primary jurisdiction over relevant claims to a “board of

adjustment” established under the RLA, rather than the federal

courts. 424 F.3d at 270, 276; Dupervil, 516 F. Supp. 3d at 250-

51. The Second Circuit concluded that it was “clear that the

RLA does not completely preempt state-law claims that come

within its scope,” because state-law claims under the RLA could

not have been filed in the first instance in federal court.

Accordingly, this Court finds that Defendant has not presented

any compelling legal reasons to stray from the overwhelming

consensus that the PREP Act is not a complete preemption statute

and Plaintiff’s state-law claims are not preempted within the

statute’s scope.

B. None of Plaintiff’s Claims Necessarily Raise A

Substantial, Disputed Federal Question Under The Grable

Doctrine

In addition to its complete preemption argument,

Defendant also asserts that there is federal question

jurisdiction over this matter pursuant to the Grable doctrine.

(ECF No. 9, Opp. Mot. at 36.) The Grable doctrine functions as

a limited exception to the well-pleaded complaint rule, and

provides that “in certain cases[,] federal-question jurisdiction

will lie over state-law claims that implicate significant

federal issues.” Grable, 545 U.S. at 312 (citation omitted).

Application of the Grable doctrine requires four elements: the

federal issue must be (1) “necessarily raised, (2) actually

disputed, (3) substantial, and (4) capable of resolution in

federal court without disrupting the federal-state balance

approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013)

(internal quotation marks and citations omitted); accord New

York ex rel. Jacobson v. Wells Fargo Nat’l Bank, N.A., 824 F.3d

308, 315 (2d Cir. 2016). All four requirements must be

fulfilled for the Grable doctrine to apply. See Gunn, 568 U.S.

at 258; Jacobson, 824 F.3d at 315.

Here, Plaintiff raises the claims of negligence, gross

negligence, wrongful death, malpractice, and violations of New

York Public Health Law. See Dupervil at 258. The first of the

four requirements is clearly not fulfilled, as “none of

Plaintiff’s various claims . . . are affirmatively premised on

the PREP Act, nor is the PREP Act an essential element of any of

Plaintiff’s claims.” Id. Defendant argues that “a federal

issue is ‘necessarily raised’ because the PREP Act, and its

implementation to combat COVID-19, involves substantial federal

issues in terms of the national, unified response to the

pandemic.” (ECF No. 9, Opp. Mot. at 37.) Defendant’s

invocation of Grable is unconvincing given the marked

differences between issue in Grable and the Plaintiff’s claims

in this case, which “could not be more different.” Shapnik, 535

F. Supp. 3d at 320. In Grable, the Internal Revenue Service had

seized real property without giving notice pursuant to 26 U.S.C.

§ 6335, implicating the Internal Revenue Code as central to the

plaintiff’s claims for losses. 545 U.S. at 308. Here, the

“PREP Act is raised only as an immunity defense, and ‘the

immunity question is not an element of [p]laintiffs’ state-law

causes of action.’” Leroy, 554 F. Supp. 3d at 481 (quoting

Shapnik, 535 F. Supp. 3d at 320); see also Dupervil, 516 F.

Supp. 3d at 257–59.

Defendant argues that the PREP Act is integral to this

action, because it raises purportedly federal defenses:

“immunity, preemption and failure to exhaust federal

administrative remedies under the PREP Act.” (ECF No. 9, Opp.

Mot. at 36 n. 19.) But it is well-established that “a case may

not be removed to federal court on the basis of a federal

defense.” Caterpillar, 482 U.S. at 393. The PREP Act, a

statute affording immunity, is not an essential element of any

of Plaintiff’s state-law causes of action. The existence of

immunity is ordinarily a defense that can be raised or waived by

a defendant. See, e.g., Donohue v. Cuomo, 980 F.3d 53, 77 (2d

Cir. 2020) (“The Eleventh Amendment ‘does not automatically

destroy original jurisdiction,’ but rather ‘grants the State a

legal power to assert a sovereign immunity defense should it

choose to do so. The State can waive the defense’ and a court

need not ‘raise the defect on its own.’”) (quoting Wis. Dep’t of

Corr. v. Schacht, 524 U.S. 381, 389 (1998)); Harris v. Miller,

818 F.3d 49, 63 (2d Cir. 2016). Plaintiff need not prove that

Defendant is not immune in order to prevail and, therefore, this

Court must remand where the “face of [the] well pleaded

complaint” allege “only state tort and contract claims” and does

not “necessarily [or at all] depend on a disputed and

substantial issue of federal law.” Glatzer v. Bear Stearns &

Co., 201 F. App’x 98, 99 (2d Cir. 2006).

This Court therefore adopts the analysis of other

well-reasoned opinions from this Circuit, which conclude that

Grable “does not support federal question and removal

jurisdiction in this case.” Shapnik, 535 F. Supp. 3d at 319-20;

see also Leroy, 554 F. Supp. 3d at 481; Dupervil, 516 F. Supp.

3d at 257–59; Ranieri, 2022 WL 2819411, at *1; Rivera, 2022 WL

2222979, at *3; Escobar, 2022 WL 669366, at *2.

II. Removal Under 28 U.S.C. § 1442(a)(1) Was Improper Because

Defendant Is Not A Federal Officer

Defendant also argues that the case is removable under

28 U.S.C. § 1442(a)(1), “federal officer jurisdiction.” (ECF

No. 9, Opp. Mot. at 28-36.) Under this statute, a case may be

removed if it is against (1) the United States; (2) any agency

of the United States; or (3) “any officer (or any person acting

under that officer) of the United States or of any agency

thereof, in an official or individual capacity, for or relating

to any act under color of such office.” 28 U.S.C. § 1442(a)(1).

Here, Defendant relies on the third prong, asserting the federal

government’s various Declarations and Advisory Opinions

“specifically declared defendants to be a critical partner in

the fight against COVID-19, and therefore it necessarily was

‘acting under’ a federal agency as a federal officer and

instrumentality of the federal government.” (Id. at 35.)

Removal under this third prong of 28 U.S.C. § 1442(a)(1) is

proper if Defendant (1) is a “person[] within the meaning of the

statute who acted under a federal officer”; (2) “performed the

actions for which [it is] being sued under color of federal

office”; and (3) “raise[s] a colorable federal defense.”

Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d Cir. 2008)

(internal citations, quotations, and alterations omitted).

A “person” within the meaning of the statute “includes

corporate persons,” but the Supreme Court has made clear that,

for a private person to be considered “acting under” a federal

officer, his or her actions “must involve an effort to assist,

or to help carry out, the duties or tasks of the federal

superior.” Watson v. Philip Morris Cos., 551 U.S. 142, 152

(2007) (citing Davis v. South Carolina, 107 U.S. 597, 600

(1883)). “Merely complying with federal directives and

regulations does not fall within the scope of Section

1442(a)(1), even if the actor is a highly regulated private

entity.” Id. at 153; see also Veneruso v. Mt. Vernon

Neighborhood Health Ctr., 586 App’x. 604, 607-08 (2d Cir. 2014).

Defendant claims that because it “had a special and close

relationship with the federal government during the pandemic and

[] acted under its direction in [] response to the COVID-19

pandemic,” it was acting under a federal officer. (ECF No. 9,

Opp. Mot. at 35.) Defendant’s relationship to the federal

government responding to Covid-19 is not more close or direct

than the other, nursing homes that were indeed “vital” to

combatting the Covid-19 pandemic, but similarly found not to be

“federal officers”. See Rivera, 2022 WL 2222979, at *3;

Dupervil, 516 F. Supp. 3d at 260-61; Leroy, 554 F. Supp. 3d at

481-82.

Accordingly, the Court finds that Defendant is not a

person “acting under” a federal agency as a federal officer and

does not otherwise qualify for federal-officer removal. Removal

under 28 U.S.C. § 1442(a)(1) was therefore improper.

III. Defendant Incorrectly References Maglioli v. All. HC

Holdings LLC, 16 F.4th 393 (3d Cir. 2021)

Finally, this Court addresses Defendant’s assertion

that the Third Circuit, in Maglioli v. Alliance HC Holdings LLC,

“confirmed” that the PREP Act acts as complete preemption

statute. 16 F.4th 393, 400 (3d Cir. 2021). The Maglioli court,

in fact, concluded the very opposite and found that nursing

homes that removed actions to federal court, for the same

reasons proffered by Defendant in this instant matter, could not

remain in federal court for lack of subject-matter jurisdiction.

Id. at 400. Though the Second Circuit has not yet decided this

issue, the Third, Fifth, Seventh, and Ninth Circuits, as well as

dozens of district courts across the country have addressed

arguments identical to Defendant’s on preemption under PREP Act,

the Grable doctrine in the context of the COVID-19 pandemic, the

federal officer removal statute. The overwhelming consensus is

that none of the bases proffered by Defendant confers

jurisdiction on federal District Courts over state law claims

like Plaintiff’s. See Maglioli, 16 F.4th at 400 n.2 (“Nearly

every federal district court to confront these cases has

dismissed for lack of jurisdiction and remanded to the state

court.”) (citing cases)); see Saldana v. Glenhaven Healthcare

LLC, 27 F.4th 679 (9th Cir. 2022) (finding PREP Act not a

complete preemption statute and nursing home was not “acting

under” federal officer or agency direction as required to

support removal under federal officer statute; remand affirmed);

Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580 (5th Cir. 2022)

(same and finding that Grable does not apply); Martin v.

Petersen Health Operations, LLC, 37 F.4th 1210 (7th Cir. 2022)

(same). Consequently, the Court finds that remand is

appropriate and grants Plaintiff’s motion to remand.

Conclusion

Defendant has failed to establish that the Court has

subject matter jurisdiction over the action and that removal was

proper. As such, the Court GRANTS Plaintiff’s motion to remand.

The Clerk of Court is respectfully directed to remand this case

to the Supreme Court of the State of New York, Queens County.

SO ORDERED.

DATED: August 22, 2022

Brooklyn, New York

__________/s/_______________

HON. KIYO A. MATSUMOTO

United States District Judge