Torres v. St. Vincent dePaul Residence

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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MINERVA TORRES, as Administrator of the Estate

of MIGUEL SANTIAGO, Deceased,

Plaintiff,

OPINION & ORDER

- against -

No. 22-CV-7012 (CS)

ST. VINCENT DEPAUL RESIDENCE, a/k/a ARCH

CARE AT SAN VICENTE DE PAUL SKILLED

NURSING AND REHABILITATION,

Defendant.

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Appearances:

Damien Smith

Duffy & Duffy, PLLC

Uniondale, New York

Counsel for Plaintiff

Megan A. Lawless

Dylan C. Braverman

Vigorito, Barker, Patterson, Nichols & Porter, LLP

Garden City, New York

Counsel for Defendant

Seibel, J.

Before this Court is Plaintiff’s motion to remand. (ECF No. 13 (“P’s Mem.”).) For the

following reasons, the motion is GRANTED.

I. BACKGROUND1

Plaintiff commenced this action in New York State Supreme Court, Bronx County2 on

April 13, 2022, against Defendant St. Vincent DePaul Residence, a nursing home, on behalf of

the estate of her father (“Decedent”). (ECF No. 2-1 (“Compl.”).) Decedent was admitted to

Defendant’s facility on or about April 13, 2019. (AC ¶ 34.) Plaintiff alleges that while Decedent

was residing there, Defendant “failed to timely and properly recognize and act upon [his] signs

and symptoms of infection from COVID-19, including fever, hypertension, tachypnea, and

hypoxia,” (id. ¶ 36), and “failed to provide proper infection prevention and control procedures,”

(id. ¶ 38), resulting in Decedent’s death, (id. ¶ 37). In the AC, Plaintiff brings claims for

1 The facts recited herein are drawn from the Amended Complaint. (ECF No. 2-2

(“AC”).) In resolving this motion, the Court treats the facts alleged in the AC as true. See Fed.

Ins. Co. v. Tyco Int’l Ltd., 422 F. Supp. 2d 357, 391 (S.D.N.Y. 2006) (“When considering a

motion to remand, the district court accepts as true all relevant allegations contained in the

complaint and construes all factual ambiguities in favor of the plaintiff.”) (Unless otherwise

indicated, case quotations omit all internal citations, quotation marks, footnotes, and alterations.).

In addition, for purposes of determining whether removal was proper, the Court also considers

the exhibits attached to Defendant’s Notice of Removal, (see ECF No. 2), the exhibits attached to

Plaintiff’s memorandum in support of its motion to remand, (see P’s Mem.), and the Declaration

of Megan Lawless, and attached exhibits, in opposition to that motion, (see ECF No. 11). See

Arseneault v. Congoleum Corp., No. 01-CV-10657, 2002 WL 472256, at *6 (S.D.N.Y. Mar. 26,

2002) (“The Second Circuit . . . has said that, on jurisdictional issues, federal courts may look

outside the pleadings to other evidence in the record,” and therefore the court considers “material

outside of the pleadings” submitted on motion to remand.), reconsideration granted on other

grounds, 2002 WL 531006 (S.D.N.Y. Apr. 8, 2002).

2 Rule 20 of the Southern District of New York Rules for the Division of Business

Among District Judges (“RFDOB”) provides that “[a]ctions removed from a state court in New

York County or Bronx County will be assigned to Manhattan.” On the civil cover sheet, counsel

for Defendant erroneously certified that the case should be assigned to the White Plains

courthouse under the RFDOB. (See ECF No. 1 at 2.) Nevertheless, “[t]he district court has

discretion to excuse noncompliance with local court rules,” Fulfree v. Manchester, 182 F.3d 899,

at *1 (2d Cir. 1999), which I do, given that neither party has raised the error or otherwise

suggested any prejudice resulting therefrom.

violation of New York Public Health Law (“PHL”) § 2801-d, (id. ¶¶ 48-74), wrongful death, (id.

¶¶ 75-81), and gross negligence, (id. ¶¶ 82-91).

On August 17, 2022, Defendant timely removed the case to this Court. (ECF No. 2.) On

September 20, 2022, the Court held a pre-motion conference during which I declined

Defendant’s request to stay the matter pending resolution of certain appeals to the Second

Circuit, and permitted Plaintiff to file a motion to remand the case to state court. (See Minute

Entry dated Sept. 20, 2022.) The instant motion followed.

II. LEGAL STANDARD

An action filed in state court may be properly removed by a defendant if “the district

courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Where,” as here,

“the parties are non-diverse, removal is . . . proper if there is federal-question jurisdiction under

28 U.S.C. section 1331, which grants district courts original jurisdiction over actions ‘arising

under’ federal law.” Druckman v. Morningside Acquisition I, LLC, No. 22-CV-5324, 2022 WL

17336867, at *1 (S.D.N.Y. Nov. 30, 2022) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392

(1987)); see 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the United States.”).

“The presence or absence of federal-question jurisdiction is governed by the ‘well-

pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff’s properly pleaded complaint.” Solomon v. St.

Joseph Hosp., 62 F.4th 54, 60 (2d Cir. 2023). “[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).

“A case may not be removed to federal court on the basis of a federal defense, including

the defense of pre-emption,” unless the doctrine of complete preemption applies. Solomon, 62

F.4th at 60 (emphasis in original); see Whitehurst v. 1199SEIU United Healthcare Workers E.,

928 F.3d 201, 206 (2d Cir. 2019) (“The complete preemption doctrine is an exception to the

well-pleaded complaint rule.”) Federal law completely preempts a state law cause of action only

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, 424 F.3d at 272. But complete preemption is rare among federal

statutes; indeed, “[t]he Supreme Court has identified only three statutes as having the requisite

preemptive force to support complete preemption.” Whitehurst, 928 F.3d at 206.3

The federal officer removal statute, 28 U.S.C. § 1442(a)(1), is another exception to the

well-pleaded complaint rule. See Kircher v. Putnam Funds Tr., 547 U.S. 633, 644 n.12 (2006).

Under 28 U.S.C. § 1442(a)(1), a case may be removed if it is brought against “any officer (or any

person acting under that officer) of the United States or of an agency thereof, in an official or

individual capacity, for or relating to any act under color of such office.” To qualify as “acting

under” a federal officer, a party must have been involved in “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) (emphasis in original). “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

3 The three statutes are Section 301 of the Labor Management Relations Act, Section

502(a)(1)(B) of the Employee Retirement Income Security Act, and Sections 85 and 86 of the

National Bank Act. Solomon, 62 F.4th at 60 n.2.

entity.” Rivera v. Eastchester Rehab. & Health Care LLC, No. 22-CV-2019, 2022 WL 2222979,

at *3 (S.D.N.Y. June 21, 2022).

Finally, even where a plaintiff’s case contains only proper, well-pleaded state-law claims,

“in certain cases federal-question jurisdiction will lie over state-law claims that implicate

significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.

308, 312 (2005). The so-called Grable exception to the well-pleaded complaint rule applies to

“a special and small category of cases,” where “a federal issue is: (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). If

any of those four requirements is not satisfied, the exception does not apply. See id.; New York

ex rel. Jacobson v. Wells Fargo Nat’l Bank, N.A., 824 F.3d 308, 315 (2d Cir. 2016).

“A party seeking removal bears the burden of showing that federal jurisdiction is proper.”

Montefiore Med. Ctr. v. Teamsters Loc. 272, 642 F.3d 321, 327 (2d Cir. 2011). “[O]ut of respect

for the limited jurisdiction of the federal courts and the rights of states,” In re Methyl Tertiary

Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007), removal jurisdiction must be

“strictly construed” and any doubts should be resolved against removability, Syngenta Crop

Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002).

III. DISCUSSION

Plaintiff moves to remand the instant action to state court on the ground that there is no

federal jurisdiction because Plaintiff’s causes of action are not, as Defendant contends,

preempted by the Public Readiness and Emergency Preparedness (“PREP”) Act. (See generally

P’s Mem.) Defendant argues in opposition that removal was proper because (1) Plaintiff’s

claims are completely preempted by the PREP Act, (2) Plaintiff’s claims, which require

consideration of the PREP Act, invoke “arising under” jurisdiction, and (3) Defendant acted at

the direction of federal officers, bringing the claims under the federal officer removal statute.

(See generally ECF No. 10 (“D’s Opp.”).)

The PREP Act immunizes covered persons “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” during a

public-health emergency. 42 U.S.C. § 247d-6d(a)(1). During February 2020, pursuant to the

PREP Act, the Secretary of the Department of Health and Human Services (“HHS”) declared

“COVID-19 . . . a public health emergency” and defined “covered countermeasures” as any

“antiviral, drug, biologic, diagnostic, device, or vaccine used to treat, diagnose, cure, prevent, or

mitigate COVID-19.” Declaration Under the PREP Act for Medical Countermeasures Against

COVID-19, 85 Fed. Reg. 15198, 15198-01 (Mar. 17, 2020). For most claims pursuant to that

declaration, “the PREP Act establishes a Covered Countermeasure Process Fund to compensate

‘eligible individuals for covered injuries directly caused by the administration or use of a covered

countermeasure.’” Solomon, 62 F.4th at 58 (quoting 42 U.S.C. § 247d-6e(a)).

The PREP Act contains one exception to immunity: for claims “for death or serious

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

misconduct is defined as “an act or omission that is taken (i) intentionally to achieve a wrongful

purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or

obvious risk that is so great as to make it highly probable that the harm will outweigh the

benefit.” Id. § 247d-6d(c)(1)(A). The PREP Act grants exclusive federal jurisdiction over such

claims to the United States District Court for the District of Columbia. Id. § 247d-6d(e)(1).

At the time of the briefing of this motion, the consensus among lower courts in the

Second Circuit was that removal is improper and remand is required in cases involving state law

claims against health care facilities arising from patients’ COVID-19-related deaths or illnesses.

See, e.g., Ranieri v. Providence Rest, Inc., No. 22-CV-1030, 2022 WL 2819411, at *1-2

(S.D.N.Y. July 19, 2022); Rivera, 2022 WL 2222979, at *2-3; Escobar v. Mercy Med. Ctr., No.

21-CV-2101, 2022 WL 669366, at *2-3 (E.D.N.Y. Mar. 7, 2022); Garcia v. N.Y.C. Health &

Hosps. Corp., No. 20-CV-9970, 2021 WL 1317178, at *1-2 (S.D.N.Y. Apr. 8, 2021); Leroy v.

Hume, 554 F. Supp. 3d 470, 482 (E.D.N.Y. 2021), appeal docketed, (No. 21-2159); Rivera-

Zayas v. Our Lady of Consolation Geriatric Care Ctr., No. 20-CV-5153, 2021 WL 3549878, at

*2-3 (E.D.N.Y. Aug. 11, 2021); Shapnik v. Hebrew Home for Aged at Riverdale, 535 F. Supp. 3d

301, 322 (S.D.N.Y. 2021).

While the instant motion was pending, the Second Circuit agreed. In Solomon, 62 F.4th

54, the plaintiff had sued in state court, setting forth state-law claims arising from injuries he

sustained following hospitalization for COVID-19. The defendants removed the case to federal

court, contending – as Defendant does here – that there was federal jurisdiction because (1) the

PREP Act completely preempted the plaintiff’s state law claims, (2) the defendants were subject

to federal regulations, which brought them under the federal officer removal statute, and (3) the

plaintiff’s claims arose under federal law. The Solomon Court’s holdings doom Defendant’s

arguments.

1. Complete Preemption

First, the Solomon Court held that the plaintiff’s state law claims were not completely

preempted by the PREP Act because his causes of action – medical malpractice, negligence, and

gross negligence – did “not fall within the scope of the PREP Act’s exclusive federal cause of

action for willful misconduct,” and the PREP Act did not otherwise create any exclusive federal

cause of action that would encompass plaintiff’s claims. Solomon, 62 F.4th at 60. None of the

plaintiff’s causes of action, the Court reasoned, “r[o]se to the level of willful misconduct, which

the PREP Act defines as a standard for liability that is more stringent than a standard of

negligence in any form.” Id. at 61 (emphasis in original). The Court noted that the standards for

negligence, gross negligence, and medical malpractice are “more relaxed than the showing

required for willful misconduct.” Id. Here too, none of Plaintiff’s claims rise to the level of

willful misconduct because they all may be proven through a showing of negligence. See

Kushner v. Schervier Nursing Care Ctr., No. 05-CV-5297, 2011 WL 13382681, at *5 (S.D.N.Y.

Jan. 19, 2011) (“To succeed on a claim under New York Public Health Law 2801-d(1), a

plaintiff must first make a prima facie case showing a deprivation of an enumerated right or

benefit. Once the plaintiff has made a prima facie showing, the burden of proof shifts to the

defendant facility to prove as an affirmative defense that the facility exercised all care reasonably

necessary to prevent and limit the deprivation and injury for which liability is asserted.”);

Hollman v. County of Suffolk, No. 06-CV-3589, 2011 WL 2446428, at *12 (E.D.N.Y. June 15,

2011) (“The negligence determination is also determinative of the plaintiff’s wrongful death

claim, because to succeed on a cause of action to recover damages for wrongful death, the

decedent’s personal representative must establish, inter alia, that the defendant’s wrongful act,

neglect, or default caused the decedent’s death.”). And, as the Second Circuit noted, “no form of

negligence can constitute willful misconduct.” Solomon, 62 F.4th at 61 n.3.

Defendant argues that, regardless of the labels of Plaintiff’s claims, the AC pleads

colorable claims for willful misconduct, citing to allegations in which Plaintiff says Defendant

acted “intentionally” or “willfully.” (D’s Opp. at 16-17 (citing AC ¶¶ 2, 3, 35, 41, 60, 65, 67, 72,

83-84).) Defendant contends that “so long as [Plaintiff’s claims] could have also fallen under the

willful misconduct definition of the PREP Act, [they] fall[] within the Act’s exclusive federal

cause of action, thus forming the basis for federal jurisdiction here.” (Id. at 17.) Despite

Plaintiff’s factual allegations that some of Defendant’s conduct was willful or intentional,

however, Plaintiff has not brought claims that require those states of mind, and instead has

limited her causes of action to those premised on Defendant’s negligence. The Second Circuit

has made clear that claims premised on negligence do not fall within the scope of the PREP

Act’s exception for willful misconduct. See Solomon, 62 F.4th at 61-62.4

Accordingly, removal is not proper under the complete preemption doctrine.

2. Federal Officer

Second, the Solomon Court rejected the defendants’ argument that because they were

acting under the direction of a federal officer, the federal officer removal statute conferred

jurisdiction. See Solomon, 62 F.4th at 63. It held that “[a] private company’s compliance (or

noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope

of the statutory phrase ‘acting under’ a federal official. And that is so even if the regulation is

highly detailed and even if the private firm’s activities are highly supervised and monitored.” Id.

The Court also noted that “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.” Id.

4 The Solomon Court also made clear that its interpretation would not defeat the purpose

of the PREP Act, because if artful pleading were at work, PREP Act immunity would apply to

those claims whether they were adjudicated in state or federal court. See Solomon, 62 F.4th at

62. In any event, “[t]his is not a case of ‘artful pleading’ in which the Plaintiff is disguising what

are essentially federal claims in state law clothing.” Rivera, 2022 WL 2222979, at *3.

Here, Defendant argues that it acted as a “private surrogate[]” for the federal government

by serving as “members of the country’s critical infrastructure under the control of HHS, [the

Centers for Medicare and Medicaid Services] and [the Centers for Disease Control and

Prevention] to respond to a declared public health emergency.” (D’s Opp. at 22.) Defendant

adds that it was required to perform “government tasks” pursuant to “numerous protocols

directed particularly to health care facilities for testing, prioritization and allocation of [personal

protective equipment], and adherence to infection prevention and control standards.” (Id. at 23.)

But as the Second Circuit has stated in considering factually analogous circumstances,

“Defendant[] may be subject to federal regulations and guidance governing the care they provide

(including in connection with COVID-19), but that does not mean that they ‘act under’ a federal

officer.” Solomon, 62 F.4th at 63. Defendant fails to show that its role in providing care during

COVID-19 goes beyond mere compliance with federal regulations such that it can be considered

to have acted under a federal officer.

Accordingly, removal is not proper under the federal officer removal statute.

3. “Arising Under” Jurisdiction

Third, the Solomon Court held that removal was not proper under federal “arising under”

jurisdiction because the plaintiff had not “necessarily raised” a federal issue in his complaint.

Solomon, 62 F.4th at 63-64. “To determine whether an issue is ‘necessarily raised’ we consider

whether ‘a right or immunity created by the Constitution or laws of the United States is an

element, and an essential one, of the plaintiff’s cause of action.’” Id. at 64 (quoting Tantaros v.

Fox News Network, LLC, 12 F.4th 135, 141 (2d Cir. 2021)). The Court found that “[a]lthough

Defendants have sought to avail themselves of the immunity granted under the PREP Act, our

‘inquiry must be unaided by anything alleged in anticipation or avoidance of defenses which it is

thought the defendant may interpose . . . even if the defense is anticipated in the plaintiffs

complaint, and even if both parties admit that the defense is the only question truly at issue in the

case.’” Jd. (quoting Tantaros, 12 F.4th at 141-42).

Here, Defendant similarly asks the Court to find that Plaintiff has necessarily raised a

federal issue because “[t]he extent to which the PREP Act applies to Plaintiffs claims requires

the interpretation of federal law.” (D’s Opp. at 21.) But the relevant inquiry is whether Plaintiff

has raised a federal issue in her complaint “unaided by anything alleged in anticipation or

avoidance of defenses,” Solomon, 62 F.4th at 64, and plainly she has not.

Accordingly, removal is not proper under federal “arising under” jurisdiction.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to remand is GRANTED. The Clerk of

Court is respectfully directed to terminate the pending motion, (ECF No. 13), and remand this

case to the Supreme Court of the State of New York, Bronx County.

SO ORDERED.

Dated: April 3, 2023

White Plains, New York AaskeR

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