# Palma v. Cabrini of Westchester

> District Court, S.D. New York · August 15, 2022

URL: https://www.frixlaw.com/law-library/cases/10343505

## Case

- **Court:** District Court, S.D. New York
- **Decided:** August 15, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
ANGELINA PALMA, as Administrator of the :
Estate of Felice Palma aka Felix Palma, :
Plaintiff, :

v. :
OPINION AND ORDER
:

CABRINI OF WESTCHESTER, doing business :
22 CV 5430 (VB)
as St. Cabrini Nursing Home; ABC :
CORPORATION; and ABC PARTNERSHIP, :
Defendants. :
-------------------------------------------------------------x

Briccetti, J.:

Plaintiff commenced this action in New York State Supreme Court, Westchester County,
against defendant Cabrini of Westchester d/b/a St. Cabrini Nursing Home (“Cabrini”), as well as
its unidentified corporate owners and operators. On behalf of her father’s estate, plaintiff alleges
Cabrini did not implement sufficient COVID-19 protocols to prevent her father from contracting
and dying from COVID-19. Cabrini timely removed the case to this Court. (Doc. #1).
Now pending is plaintiff’s motion to remand. (Doc. #6).
For the reasons set forth below, the motion is GRANTED.
BACKGROUND
In considering a motion to remand, the Court accepts as true all relevant allegations in the
complaint and construes all factual ambiguities in the moving party’s favor. See Fed. Ins. Co. v.
Tyco Int’l Ltd., 422 F. Supp. 2d 357, 391 (S.D.N.Y. 2006). The Court may also consider
materials outside the complaint, “such as documents attached to a notice of removal or a motion to
remand that convey information essential to the court’s jurisdictional analysis.” Romero v. DHL
Express (U.S.A), Inc., 2016 WL 6584484, at *1 (S.D.N.Y. Nov. 7, 2016), aff’d, 719 F. App’x 80
(2d Cir. 2018) (summary order).1
Plaintiff is an administrator of the estate of her father, Felice Palma, who died from
COVID-19 on May 7, 2020, when at Cabrini. Plaintiff alleges Cabrini failed to implement

appropriate policies, procedures, and staffing prior to the COVID-19 pandemic; failed properly to
respond to the pandemic once it began; and failed properly to treat Mr. Palma, which resulted in
his death. Plaintiff brings claims under the New York Public Health Law and for negligence,
negligence per se, gross negligence, conscious pain and suffering, wrongful death, and nursing
home malpractice.
Cabrini argues removal is proper on three grounds: First, it contends defendants were
acting at the direction of the Centers for Disease Control and Prevention (“CDC”) and the
Department of Health and Human Services (“HHS”) when implementing Cabrini’s COVID-19
protocols, and therefore removal is proper under the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1). Second, it contends the Court has original jurisdiction because plaintiff’s claims are

completely preempted by the Public Readiness and Emergency Preparedness Act (“PREP Act”),
42 U.S.C. §§ 247d-6d(a)(1), (b)(8), (d)(1), (e)(1), such that removal is proper under 28 U.S.C.
§ 1441(a). And third, it argues plaintiff’s complaint raises substantial questions of federal law that
should be adjudicated by a federal court pursuant to Grable & Sons Metal Products, Inc. v. Darue
Engineering & Manufacturing, 545 U.S. 308 (2005).

1 Unless otherwise indicated, case quotations omit all internal citations, quotations,
footnotes, and alterations.
DISCUSSION
Several courts have considered whether state law claims arising from a health-care
facility’s implementation of COVID-19 protocols may be removed to federal court based on the
federal officer removal statute, the PREP Act, or the Grable doctrine. See, e.g., Rivera v.

Eastchester Rehab. & Health Care LLC, 2022 WL 2222979, at *2 (S.D.N.Y. June 21, 2022)
(collecting cases). “To date every Circuit court and dozens of other district courts considering
these questions” have determined “that removal in cases such as this one is improper and remand
is required.” Ranieri v. Providence Rest, Inc., 2022 WL 2819411, at *1 (S.D.N.Y. July 19, 2022)
(collecting cases); accord Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 683 (9th Cir.
2022).
The Court agrees.
I. Federal Officer Removal Statute
First, Cabrini was not “acting under” a federal officer such that removal is proper under the
federal officer removal statute. That nursing homes were declared critical infrastructure

businesses at the beginning of the pandemic is insufficient to establish that Cabrini was “carrying
out” the duties or tasks of a federal officer. See Saldana v. Glenhaven Healthcare LLC, 27 F.4th at
685 (“It cannot be that the federal government’s mere designation of an industry as important—or
even critical—is sufficient to federalize an entity’s operations and confer federal jurisdiction.”
(quoting Buljic v. Tyson Foods, Inc., 22 F.4th 730, 740 (8th Cir. 2021)).
Cabrini’s reliance on recent cases in which district courts declined to remand actions by
employees alleging Tyson Foods failed to implement sufficient COVID-19 protocols is
unavailing. Not only was Tyson Foods designated a critical infrastructure business, it “work[ed]
directly with the Department of Agriculture and the [U.S. Food Safety and Inspection Service] to
guarantee that there was an adequate food supply” for the country during the pandemic, thereby
“exhibit[ing] an effort to help assist, or carry out, the duties and tasks of the federal superior.”
Wazelle v. Tyson Foods, Inc., 2021 WL 2637335, at *4 (N.D. Tex. June 25, 2021); accord Fields
v. Brown, 519 F. Supp. 3d 388, 392 (E.D. Tex. 2021). Nursing homes like Cabrini, on the other

hand, were obviously not “congregate housing isolation and quarantining units” for the federal
government, as Cabrini argues. (Doc. #1, at 11). That Cabrini implemented protocols based on
CDC guidance for “Strategies for Optimizing the Supply of Facemasks” and “Using Personal
Protective Equipment” does not constitute the carrying out of the acts of the federal government.
(Id. at 11 n.8); see Watson v. Phillip Morris Cos., 551 U.S. 142, 153 (2007) (“A private firm’s
compliance . . . with federal laws, rules, and regulations does not by itself fall within the scope of
the statutory phrase ‘acting under’ a federal ‘official’ . . . even if the private firm’s activities are
highly supervised and monitored.”).
In fact, the nearly 800 pages of exhibits submitted by Cabrini with its opposition papers
support this conclusion. For example, the declaration of Bonita Burke, an administrator at

Cabrini, states Cabrini “kept abreast of all federal . . . and local regulations concerning [COVID-
19]” and “relied entirely on the guidance provided by these governmental agencies” in
“develop[ing] it[s] policies, protocols, and staff education program.” (Doc. #10-2 ¶¶ 4, 6).
Cabrini also submitted several directives, updates, and alerts from the New York State Department
of Health and HHS. (See, e.g., Docs. ## 10-5, 10-10, 10-11, 10-14, 10-16, 10-17). Far from
demonstrating that Cabrini worked “hand-in-hand” with a federal agency, these documents show
Cabrini took steps to comply with current regulations and guidance applicable to it as a “private
company facing additional regulations because of the pandemic.” (Doc. #10 at 23). Therefore,
removal under Section 1442(a)(1) is inappropriate.
II. Complete Preemption
Second, the PREP Act does not completely preempt plaintiff’s claims, and thus removal
under Section 1441(a) is inappropriate. “[A] defendant generally may not remove a case to federal
court unless the plaintiff’s complaint establishes that the case arises under federal law.”

McCulloch Orthopaedic Surgical Servs., PLLC v. Aetna Inc., 857 F.3d 141, 145 (2d Cir. 2017).
“[A] suit seeking recovery under state law is not transformed into a suit arising under federal law
merely because, to resolve it, the court may need to interpret federal law.” Sullivan v. Am.
Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005). For example, a defendant “may not create federal
subject-matter jurisdiction” because it anticipates raising a defense under federal law. Id. at 271–
72. Only when the federal statute at issue completely preempts the plaintiff’s state law claims is
removal permitted. See Dupervil v. All. Health Operations, LLC, 516 F. Supp. 3d 238, 251
(E.D.N.Y. 2021), vacated as moot, No. 20-cv-4042 (2d Cir. Aug. 1, 2022).2
Federal law completely preempts a state law cause of action when the federal statute is
“construed to have such extraordinary preemptive force that state-law claims coming within the

scope of the federal statute are transformed, for jurisdictional purposes, into federal claims.”
Sullivan v. Am. Airlines, Inc., 424 F.3d at 272. Complete preemption “must be distinguished
from ordinary preemption,” under which a defendant may argue “that because federal law
preempts state law, the defendant cannot be held liable under state law.” Id. at 272–73. This form
of defensive ordinary preemption, however, does not provide federal jurisdiction. See id.

2 Dupervil v. Alliance Health Operations, LLC, 516 F. Supp. 3d 238, which was not
controlling on this Court even prior to its vacatur, was vacated as moot because the plaintiff
voluntarily dismissed the underlying state court action, and therefore may be considered by the
Court as persuasive authority. See, e.g., Brown v. Kelly, 609 F.3d 467, 477 (2d Cir. 2010)
(treating a Second Circuit decision vacated by the Supreme Court as “persuasive authority,”
notwithstanding the lack of “precedential authority”).
Under the PREP Act, the Secretary of HHS is empowered to provide “timely, uniform, and
adequate compensation to eligible individuals for covered injuries directly caused by the
administration or use of a covered countermeasure.” 42 U.S.C. § 247d-6e(a).3 As “an immunity
statute,” the PREP Act “does not create rights, duties, or obligations” and, except for one narrow

exception, confers primary jurisdiction over in-scope claims to the Secretary and not to federal
courts. Dupervil v. All. Health Operations, LLC, 516 F. Supp. 3d at 251.
Therefore, because “the PREP Act does not provide the exclusive cause of action for
claims that fall within its scope,” it “does not completely preempt state-law claims within its
scope.” Dupervil v. All. Health Operations, LLC, 516 F. Supp. 3d at 250–51. Here, the PREP Act
does not “provide the exclusive cause of action” for plaintiff’s state law claims or “set forth
procedures and remedies governing [these] cause[s] of action”; thus, they are not completely
preempted by the PREP Act. Id.
Moreover, even if the PREP Act did completely preempt in-scope claims, plaintiff does not
assert PREP Act claims for failure of a covered countermeasure; instead, she asserts state law

claims for negligence, nursing home malpractice, and wrongful death, among others. Dupervil v.
All. Health Operations, LLC, 516 F. Supp. 3d at 255 (claims that nursing home failed to separate
residents, enforce social distancing and mask-wearing, or cancel group activities were not actions

3 A “covered countermeasure” means “(A) a qualified pandemic or epidemic product . . .;
(B) a security countermeasure . . .; (C) a drug . . ., biological product . . ., or device . . ., that is
authorized for emergency use . . .; or (D) a respiratory protective device that is approved by the
National Institute for Occupational Safety and Health . . . and that the Secretary determines to be a
priority for use during a public health emergency.” 42 U.S.C. § 247d-6d(i)(1). A “qualified
pandemic or epidemic product” means a drug, biological product, or device that is “manufactured,
used, designed, developed, modified, licensed, or procured, to diagnose, mitigate, prevent, treat, or
cure a pandemic or epidemic; or to limit the harm such pandemic or epidemic might otherwise
cause.” 42 U.S.C. § 247d-6d(i)(7). A “security countermeasure” means a drug, biological
product, or device “that the Secretary determines to be a priority . . . to diagnose, mitigate, prevent,
or treat harm.” 42 U.S.C. § 247d-6b(c)(1)(B).
“administering—or even prioritizing or purposefully allocating—a drug, biological product, or
device to an individual within the meaning of the PREP Act”).
Likewise, plaintiff’s allegations arising from defendants’ “willful” and “wanton” conduct
do not fall within the exclusive federal cause of action for “willful misconduct” by a covered

person under PREP. (Doc. #1-1 ¶¶ 189, 279, 280, 295, 296); 42 U.S.C. § 247d-6d(c)(1)(A). That
is, because plaintiff’s claims do not involve the administration or use of certain drugs, biological
products, or devices, those claims are not claims of “willful misconduct” in administering or using
countermeasures covered by the PREP Act. See Leroy v. Hume, 554 F. Supp. 3d 470, 474 n.1
(E.D.N.Y. 2021) (claims for “reckless misconduct, wanton, willful, reckless, and/or grossly
negligent medical malpractice” did not assert “willful misconduct” claims under the PREP Act);
see also Shapnik v. Hebrew Home for the Aged at Riverdale, 535 F. Supp. 3d 301, 317 (S.D.N.Y.
2021) (punitive damages claims for reckless and intentional conduct were derivative of plaintiff’s
negligence claims and not PREP Act claims for “willful misconduct”).
Moreover, even if plaintiff alleged willful misconduct PREP Act claims, the U.S. District

Court for the District of Columbia is the exclusive forum for such claims. See 42 U.S.C. § 247d-
6d(e)(1) (actions for willful misconduct under PREP “shall be filed and maintained only in the
United States District Court for the District of Columbia”); accord Perez v. Oxford Univ., 2022
WL 1468438, at *2 (S.D.N.Y. May 10, 2022). Therefore, this Court would not have subject
matter jurisdiction over those claims.
Accordingly, the Court does not have original jurisdiction over plaintiff’s claims and
removal is improper on that ground.
Ill. Grable Doctrine
Finally, federal jurisdiction pursuant to the Grable doctrine does not exist here because
none of plaintiffs claims necessarily raises a federal issue. That Cabrini may have an affirmative
defense to plaintiffs claims based on the PREP Act does not show that plaintiffs “claims are
affirmatively premised on, or on their face necessarily require resolution of, the PREP Act.”
Dupervil v. All. Health Operations, LLC, 516 F. Supp. 3d at 258 (holding an anticipated immunity
defense under the PREP Act is insufficient for removal under Grable). Cabrini 1s correct that “the
PREP Act, and its implementation to combat COVID-19, involves substantial federal issues.”
(Doc. #10 at 27). But here, plaintiff does not bring PREP Act claims, and resolution of the PREP
Act is not “an essential element of any of Plaintiffs claims.” Dupervil v. All. Health Operations,
LLC, 516 F. Supp. 3d at 259.
Therefore, removal is not proper under the Grable doctrine.
CONCLUSION
The motion to remand is GRANTED.
The initial conference scheduled for August 18, 2022, at 12:00 p.m., is cancelled.
The Clerk is instructed to terminate the motion (Doc. #6) and remand this case to Supreme
Court, Westchester County.
Dated: August 15, 2022
White Plains, NY
SO ORDERED:
us Inu
Vincent L. Briccetti
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10343505. Public record. Not legal advice.