Wimberly v. Montefiore

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARIE WIMBERLY, Administrator of the Case No. 1:21-cv-02097-PAB (lead)

Estate of Vivian Wilson (deceased) 1:21-cv-02126-PAB

Plaintiff,

-vs-

JUDGE PAMELA A. BARKER

MONTEFIORE, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

Currently pending is Plaintiff Marie Wimberly’s, Administrator of the Estate of Vivian

Wilson (deceased), Motion for Remand. (Doc. No. 13.) Defendants Montefiore, The Montefiore

Home, The Montefiore Foundation, The Montefiore Housing Foundation, and The Menorah Park

Foundation (“the Facility Defendants”) filed a Memorandum in Opposition to Wimberly’s Motion

on December 14, 2021, which Defendants Tina King and Marie Gelle joined. (Doc. Nos. 16, 17.)

Also on December 14, 2021, Defendant Ariel Hyman filed a separate Memorandum in Opposition,

which is substantively identical to the Facility Defendants’ Opposition. (Doc. No. 18.) Wimberly

filed a Reply in Support of her Motion on December 20, 2021. (Doc. No. 19.) All Defendants filed

a Joint Sur-Reply on December 28, 2021. (Doc. No. 20-1.)

Also pending is the Facility Defendants’ Motion for Leave to File Declaration Instanter, filed

on January 6, 2022, in response to Wimberly’s Notice of Supplemental Authority, filed December

29, 2021. (Doc. Nos. 22, 21.) Wimberly filed an Opposition to the Facility Defendants’ Motion for

Leave on January 12, 2022. (Doc. No. 23.)

For the following reasons, Wimberly’s Motion for Remand is GRANTED and Defendants’

Motion for Leave to File Declaration Instanter is DENIED.

I. Background

A. State Court Complaint

On October 4, 2021, Wimberly filed a Complaint against Defendants in Cuyahoga County

Court of Common Pleas, alleging two claims: a survival claim and a wrongful death claim. (Doc.

No. 1-2, ¶¶ 1-34, 35-40.) In her Complaint, Wimberly alleges that her mother, Vivian Wilson, was

admitted to Montefiore, a nursing home facility operated by the Facility Defendants, on September

6, 2020 after undergoing knee replacement surgery. (Id. at ¶¶ 2-4, 11.) Defendant Hyman acted as

the administrator for the facility. (Id. at ¶ 4.) King and Gelle, both licensed nurses, worked at the

facility. (Id. at ¶¶ 5-6.)

Wimberly alleges that Wilson tested negative for COVID-19 prior to her discharge from

University Hospitals. (Id. at ¶ 12.) She further alleges that Wilson was told she had been tested for

COVID-19 and that her test result was negative before she was discharged from Montefiore. (Id. at

¶ 13.) However, Wilson alleges, Defendants “falsified the test result.” (Id.) Shortly after her

discharge from the facility, Wilson experienced trouble breathing and was admitted to Ahuja Medical

Center, where she was diagnosed with an advanced case of COVID-19. (Id. at ¶ 15.) Wilson died

shortly thereafter, as a result of COVID-19. (Id. at ¶ 16.)

Wimberly alleges that Defendants “negligently, recklessly, and with malicious intent

conduct[ed] improper testing and falsif[ied] tests,” and that Defendants “intentionally hid the fact that

other patients and/or residents of Montefiore” had COVID-19. (Id. at ¶ 17.) She further alleges that

Defendants’ actions “show[ed] a lack of care so great that it is a conscious indifference to the rights

of others and gross and willful negligence” and acted “with intentional misconduct or willful or

wanton misconduct.” (Id. at ¶ 19.) Wimberly alleges that Defendants failed to provide proper

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infection control and prevention measures, quarantine procedures, and testing, failed to properly

provide medical services, and failed to provide appropriate staffing. (Id. at ¶¶ 24-30.)

B. Notices of Removal

On November 5, 2021, the Facility Defendants removed this action from the Cuyahoga

County Court of Common Pleas to the United States District Court for the Northern District of Ohio.

(Doc. No. 1.) In their Notice of Removal, the Facility Defendants asserted that the case was

removable under 28 U.S.C. § 1441(a) pursuant to the Court’s original federal jurisdiction under 28

U.S.C. § 1331. (Doc. No. 1, ¶ 4.) The Facility Defendants claimed that, on its face, Wimberly’s

action arose under the federal Public Readiness and Emergency Preparedness Act, 42 U.S.C. § 247d-

6d (the “PREP Act”) and claimed that the PREP Act completely preempted Wimberly’s state law

claims. (Id. at ¶¶ 5-9.) The Facility Defendants’ counsel conferred with King’s, Gelle’s, and

Hyman’s counsels regarding removal, and King, Gelle, and Hyman all consented. (Id. at ¶ 12.)

On November 8, 2021, three full days after the Facility Defendants removed this action to this

Court, Defendant Hyman separately removed this action again to this Court. On November 12, 2021,

the Court consolidated Hyman’s separately-removed case with the Facility Defendants’ case in the

interest of convenience to the parties and economy in judicial administration. (See ECF Entry

11/12/2021.) In his Notice of Removal, Hyman reasserts the same argument regarding removal under

28 U.S.C. § 1441(a) as set forth in the Facility Defendants’ Notice of Removal. (See Case No. 1:21-

cv-02126-PAB, Doc. No. 1, ¶ 4.) Hyman’s Notice of Removal also includes a single reference to 28

U.S.C. § 1442(a), the federal officer removal statute, but no argument associated therewith. (Id. at ¶

12, “Original jurisdiction is also through an action pursuant to 28 U.S.C. § 1442(a)(1).”)

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C. Motion for Remand

On November 30, 2021, Wimberly filed a Motion for Remand. (Doc. No. 13.) The Facility

Defendants filed an Opposition on December 14, 2021, in which King and Gelle joined. (Doc. No.

16, 17.) Hyman filed a separate Opposition on December 14, 2021, although his Opposition is nearly

identical to the Facility Defendants’ Opposition. (Doc. No. 18.) Wimberly filed a Reply in Support

of her Motion on December 20, 2021. (Doc. No. 19.) Thereafter, all Defendants filed a Joint Sur-

Reply on December 27, 2021. (Doc. No. 20-1.)

On December 29, 2021, Wimberly filed a Notice of Supplemental Authority. (Doc. No. 21.)

On January 6, 2022, the Facility Defendants filed a Response to Wimberly’s Supplemental Authority,

as well as a Motion for Leave to File Declaration Instanter. (Doc. No. 22.) The Facility Defendants

seek to file the Declaration of former facility Chief Operating Officer Richard Schwalberg to refute

certain analyses set forth in Wimberly’s Supplemental Authority. (Id.) Wimberly filed an Opposition

to the Facility Defendants’ Motion on January 12, 2022. (Doc. No. 23.)

II. Standard of Review

Under 28 U.S.C. § 1441(a), defendants may remove a civil action from a state court only

when the federal court has original jurisdiction over the claims alleged in the state court complaint.

That is, any civil case filed in state court may be removed to federal court if the case could have been

brought originally in federal court. 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386,

392 (1987). Absent jurisdiction based upon diversity of citizenship (28 U.S.C. § 1332), federal

question jurisdiction under 28 U.S.C. § 1331 is required. Caterpillar, 482 U.S. at 392.

“The party seeking removal bears the burden of demonstrating that the district court has

original jurisdiction.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). Federal

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courts are courts of limited jurisdiction and possess only the power authorized by the United States

Constitution or by statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

“‘[B]ecause lack of jurisdiction would make any decree in the case void and the continuation of the

litigation in federal court futile, the removal statute should be strictly construed and all doubts

resolved in favor of remand.’” Eastman, 438 F.3d at 549-50 (quoting Brown v. Francis, 75 F.3d 860,

864-65 (3d Cir. 1996) (further citation omitted)).

Federal question jurisdiction exists in “all civil actions arising under the Constitution, laws,

or treaties of the United States.” 28 U.S.C. § 1331. An action “arises under” federal law if: (1)

“federal law creates the cause of action[,]” or (2) “the vindication of a right under state law necessarily

turn[s] on some construction of federal law.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,

808–09 (1986) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 9 (1983)).

The presence or absence of federal-question jurisdiction is generally 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. The rule makes the plaintiff the

master of her claims, and she may avoid federal jurisdiction by exclusive reliance on state law.

Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425 (internal citation omitted). “Accordingly, if the plaintiff

chooses to bring a state law claim, that claim cannot generally be ‘recharacterized’ as a federal claim

for the purposes of removal.” Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318, 322 (6th Cir. 2005)

(quoting Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 515 (6th Cir. 2003)).

The “mere presence of a federal issue in a state cause of action does not automatically confer

federal-question jurisdiction.” Merrell Dow, 478 U.S. at 813. Further, “the existence of a federal

defense normally does not create statutory ‘arising under’ jurisdiction, and a defendant may not

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[generally] remove a cause to federal court unless the plaintiff’s complaint establishes that the case

‘arises under’ federal law[.]” Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S. Ct. 2488, 159 L.

Ed. 2d 312 (2004) (internal citations and quotation marks omitted) (alteration and emphasis in

original); see also Tisdale v. United Ass’n of Journeymen & Apprentices of Plumbing & Pipefitting

Indus. of U.S. & Canada, Local 704, 25 F.3d 1308, 1313 (6th Cir. 1994) (defensive assertion of

federal statute “does not raise a federal question for removal purposes”).

III. Analysis

Defendants argue that the PREP Act completely preempts Wimberly’s state-law claim for

willful misconduct and, accordingly, this action should not only be removed to federal district court

but also transferred to the United States District Court for the District of Columbia. (Doc. No. 16,

PageID# 134-42.) As set forth below, this Court finds that Wimberly’s claims fall outside the scope

of the PREP Act and, accordingly, must be remanded to state court. Therefore, this Court does not

consider the complete preemption issue.

A. The PREP Act

The PREP Act empowers the Secretary of the Department of Health and Human Services to

“‘to deem an event a ‘public health emergency’ and then take action to utilize funds established by

the Treasury to manage the emergency.’” Bolton v. Gallatin Ctr. for Rehab. & Healing, LLC, 535 F.

Supp. 3d 709, 715 (M.D. Tenn. Apr. 21, 2021) (citing Sherod v. Comprehensive Healthcare Mgmt.

Servs., LLC, No. 20-cv-1198, 2020 WL 6140474, at *6 (W.D. Pa. Oct. 16, 2020) (citing 42 U.S.C. §

247d(a)); see also 42 U.S.C. § 247d(b)(1)). If the Secretary determines that a public health emergency

exists, the Secretary may make a declaration recommending “manufacture, testing, development,

distribution, administration, or use of one of more covered countermeasures” to combat the

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emergency. 42 U.S.C. § 247-6d(b)(1). In March 2020, the Secretary declared SARS-CoV-2 and the

resulting disease, COVID-19, to be a public health emergency under the PREP Act. Bolton, 535 F.

Supp. 3d at 715.

The PREP Act provides that covered persons “shall be immune from suit and liability under

Federal and State law” for “all claims for loss caused by, arising out of, relating to, or resulting from”

the “administration” or “use” of a “covered countermeasure.” 42 U.S.C. § 247d-6d(a)(1). The only

exception to the PREP Act’s immunity is willful misconduct claims. 42 U.S.C. § 247d-6d(d)(1)

(“[T]he sole exception to the immunity from suit and liability of covered persons set forth in

subsection (a) shall be for an exclusive Federal cause of action against a covered person for death or

serious physical injury proximately caused by willful misconduct . . . .”). However, to fall under the

PREP Act, a willful misconduct claim must still involve the “administration” or “use” of a “covered

countermeasure.” See Singer v. Montefiore, et al., --- F. Supp. 3d, ---, 2021 WL 6111671, at *3 (N.D.

Ohio Dec. 27, 2021) (appeal docketed 3/28/2022) (“Put another way, the path to the [willful

misconduct] exception in subsection (d) of the statute runs through subsection (a), which requires

[“administration” or “use” of] covered countermeasures.”); see also Rosen v. Montefiore, et al., --- F.

Supp. 3d ---, ---, 2022 WL 278106, at *3 (N.D. Ohio Jan. 31, 2022) (appeal docketed 3/2/2022).

“Covered countermeasures” are defined as qualified pandemic or epidemic products, drugs

and biological products authorized for emergency use, security countermeasures, and respiratory

protective devices. See 42 U.S.C. § 247d-6d(i)(1). The Secretary’s March 2020 declaration identified

covered countermeasures to include “any antiviral, any other drug, any biologic, any diagnostic, any

other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the

transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration

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of any such product, and all components and constituent materials of any such product.” Declaration

Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19, 85 Fed. Reg. 15,198 (Mar. 17, 2020).

B. Wimberly’s Claims Do Not Fall Under the PREP Act

In her Motion, Wimberly argues that none of her claims fall under the PREP Act, and therefore

are not subject to federal subject matter jurisdiction, because she does not allege any injury related to

the administration or use of a covered countermeasure. (Doc. No. 13, PageID# 69.) Wimberly argues

that myriad other federal district courts have concluded that allegations of inaction or failure to

provide adequate protection or countermeasures fall outside the PREP Act. (Id. at PageID# 71.)

Wimberly argues that her allegations are no different. (Id.) She asserts that her allegations against

Defendants, including Defendants’ alleged failure to follow infection control and prevention

protocols, ensure adequate staffing and testing procedures, and intentional falsification of COVID-

19 test results, stem from the Defendants’ “reckless failures and intentional wrongdoing,” not their

actions in administering a covered countermeasure. (Id.)

In their Opposition1, Defendants argue that Wimberly’s claims specifically relate to the PREP

Act because she alleges that Wilson’s injuries and death “were related” to Defendants’ alleged willful

falsification of Wilson’s COVID-19 test results. (Doc. No. 16, PageID# 133.) Defendants contend

that the PREP Act does not require that the use or administration of a covered countermeasure be the

exclusive cause of death, but only that Wimberly’s claims “relate to” the administration of a

countermeasure. (Id.)

1 Because Hyman’s Opposition is substantively identical to the Facility Defendants’ Opposition, all citations will be to

the Facility Defendants’ Opposition.

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The Court concludes that none of Wimberly’s claims fall under the PREP Act because

Wimberly does not assert that her mother’s death was “caused by, arose out of, related to, or resulted

from” the “administration” or “use” of the identified “covered countermeasures.” See 42 U.S.C. §§

247d-6d(a), 247d-6d(d). First, to the extent Wimberly’s claims are based on Defendants’ failure to

provide appropriate infection control and prevention measures, including by failing to provide

medical services, provide appropriate staffing, and establish protocols and policies, as well as care

standards for physicians and nurses, such claims fall outside the scope of the PREP Act. (See Doc.

No. 1-2, ¶¶ 26-30.) Policies, procedures, protocols, and staffing assignments are not covered

countermeasures. See Declaration Under the Public Readiness and Emergency Preparedness Act for

Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020). See

also, e.g., Rosen, --- F. Supp. 3d at ---, 2022 WL 278106, at *3.

Second, Wimberly’s claims are based on Defendants’ inaction, not the “administration” or

“use” of covered countermeasures. The Secretary defines “administration” of a covered

countermeasure to mean the “physical provision of the countermeasures to recipients.” Declaration

Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020) (emphasis added). Here, the crux of

Wimberly’s claims is that her mother died because Defendants failed to take reasonable steps to

protect her mother, and other residents, by implementing infection control and prevention policies

and procedures. Defendants’ failure to act cannot be construed to be administration—i.e., physical

provision—of any kind of covered countermeasure. See, e.g., Rosen, --- F. Supp. 3d at ---, 2022 WL

278106, at *3 (concluding that the plaintiffs’ claims were based on the defendants’ failure to

administer or use handwashing, masks, and testing devices, and therefore did not fall within the scope

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of the PREP Act); Dupervil v. Alliance Health Ops., LLC, 516 F. Supp. 238, 255 (E.D.N.Y. 2021)

(concluding that the defendants’ alleged failures, including failing to take steps to separate residents,

enforce social distancing, restrict visitors, ensure adequate staffing levels, enforce mask-wearing, and

screening for COVID-19 symptoms among building entrants, “cannot be said to be administering—

or even prioritizing or purposefully allocating—a drug, biological product, or device” such that they

fall within the ambit of the PREP Act); Winn v. Cal. Post Acute LLC, 532 F. Supp. 3d 892, 899 (C.D.

Cal. 2021); Estate of Maglioli v. Andover Subacute Rehab. Ctr. I, 478 F. Supp. 3d 518, 531 (D.N.J.

2020), aff’d sub nom. Maglioi v. All. HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (observing that

the PREP Act “is designed to protect those who employ countermeasures, not those who decline to

employ them”) (emphasis added); Segel v. Sunray Healthcare Center, No. CV 21-7468 DSF, 2021

WL 5755639, at *2 (C.D. Cal. Dec. 2, 2021) (appeal docketed 12/30/2021) (“The Plaintiff here

complains, in part, of a failure to use covered countermeasures. If Defendants’ argument were

accepted, patients whose healthcare providers did nothing would have worse recourse to

compensation than patients whose healthcare providers tried in good faith to apply covered

countermeasures.”); Hopman v. Sunrise Villa Culver City, No. 2:21-cv-01054-RGK-JEM, 2021 WL

1529964, at *5 (C.D. Cal. Apr. 16, 2021); Shapnik v. Hebrew Home for the Aged at Riverdale, 535

F. Supp. 3d 301, 322 (S.D.N.Y. Apr. 26, 2021).

Further, the Secretary made clear that only a narrow type of “inaction claim” is viable under

the PREP Act: a “purposeful allocation” claim, wherein there are limited covered countermeasures

available, and there was a failure to administer a covered countermeasure to one individual because

it was administered to another individual. Fourth Amended Declaration, 85 Fed. Reg. 79190, 79,197

(Dec. 9, 2020). Here, there are no allegations that Wilson’s death was the result of purposeful

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allocation of personal protective equipment or care to other individuals. See, e.g., Winn, 532 F. Supp.

3d at 899.

Moreover, falsifying COVID-19 test results is not the “administration” or “use” of a covered

countermeasure. See Rosen, --- F. Supp. 3d at ---, 2022 WL 278106, at *3 (concluding same). Nor

is intentionally obscuring the number of active COVID-19 cases at the facility to hide a COVID-19

breakout within the facility the “administration” or “use” of a covered countermeasure. Though

Wimberly’s allegations regarding Defendants’ falsification of test results references COVID-19 tests,

Wimberly does not allege that Defendants injured her mother by physically providing her a COVID-

19 test. Rather, Wimberly’s allegations revolve around Defendants’ (alleged) decision to suppress

accurate COVID-19 case counts and falsify test results, misleading residents and their families.

Indeed, it is irrelevant whether any COVID-19 tests were physically provided in the first place

because, according to Wimberly’s Complaint, Defendants’ test results were intentionally faked and

entirely unrelated to the actual test result. Thus, it cannot be said that Defendants’ fake test results

“related to” the administration of a covered countermeasure. The Court agrees with the Rosen court

that “[t]his is not conduct contemplated within the scope of the Act.” Id.

Finally, the Court is unpersuaded by Defendants’ assertion that Wimberly’s claims “relate to”

the administration of a covered countermeasure because she “explicitly alleges” in paragraphs 17 and

29 of the Complaint that Wilson’s injuries and death “were related to the willful falsification and/or

improper use of COVID-19 diagnostic tests administered by Defendants to Decedent . . . .” (Doc. No.

16, PageID# 133, emphasis added.) Contrary to Defendants’ assertion, Wimberly does not allege the

“improper use” or “administration” of COVID-19 diagnostic tests. (Id., emphasis added.) Wimberly

does not allege anywhere in her Complaint that her mother was injured due to Defendants’ improper

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“administration” or “use” of a COVID-19 test. The Secretary defines “administration” of a covered

countermeasure to mean the “physical provision of the countermeasures to recipients.” Declaration

Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against

COVID-19, 85 Fed. Reg. 15,198, 15,200 (Mar. 17, 2020) (emphasis added). As Wimberly argues in

her Reply to the Facility Defendants’ Response to Supplemental Authority, “[t]he Defendants did not

injure or kill someone by swabbing their nose with a PCR test,” or otherwise injure Wilson due to

Defendants’ physical provision of a COVID-19 test. (Doc. No. 23, PageID# 221-22.)

Rather, Wimberly’s allegations in paragraphs 17 and 29 are broader than Defendants make

them out to be. Wimberly alleges that Defendants “conducted improper testing”:

17. Montefiore and the Defendants, however, had been negligently, recklessly, and

with malicious intent improperly implementing SARS-COV2 and/or any other form

of Covid-19 or Covid-19 related illness prevention measures. Moreover, they were

negligently, recklessly, and with malicious intent conducting improper testing

and falsifying tests. They intentionally hid the fact that other patients and/or residents

of Montefiore had SARS-COV2 and/or any other form of Covid-19 or Covid-19

related illness.

. . .

29. Defendants recklessly and with malicious intent improperly implemented SARS-

COV2 related illness preventing measures and conducted improper testing and

falsifying tests and further hid the fact that other patients had been exposed to SARS-

COV2.

(Doc. No. 1-2, ¶¶ 17, 29, emphasis added.) The word “conduct” means “to direct or take part in the

operation or management of; to direct the performance of; to lead from a position of command.”

Conduct, Merriam-Webster, https://www.merriam-webster.com/dictionary/conduct (last visited

4/13/2022). In other words, Wimberly alleges that Defendants directed, managed, and/or led

improper COVID-19 testing efforts, including by intentionally falsifying test results to hide their

facility’s burgeoning COVID-19 case numbers. This Court declines to construe Wimberly’s

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allegations that Defendants, “with malicious intent”, “conducted improper tests” to mean that

Defendants acted with malicious intent in the actual administration or use of a nasal or cheek swab

on any given person, including Wimberly’s mother. Rather, the Court construes these allegations to

be part and parcel of Wimberly’s allegations that Defendants directed or managed an intentional effort

to falsify and hide positive COVID-19 test results from residents to obscure the COVID-19 outbreak

coursing through the facility.2

Accordingly, the Court concludes that Wimberly’s claims do not fall within the scope of the

PREP Act and, therefore, are not subject to federal question jurisdiction under § 1331 because they

do not relate to the administration or use of covered countermeasures. Because the Court concludes

that Wimberly’s claims do not fall within the PREP Act, the Court does not consider the complete

preemption issue.

C. Federal Officer Removal

Under 28 U.S.C. § 1442(a), certain officers of the United States may remove actions to federal

court. 28 U.S.C. § 1442(a). To do so, the officer-defendant must first establish he is a person within

the meaning of the statute who “act[ed] under [a federal] officer[.]” Bennett v. MIS Corp., 607 F.3d

1076, 1085 (6th Cir. 2010) (internal quotations omitted). Second, he must also establish that he

“performed the actions for which [he] is being sued under color of [federal] office[.]” Id. (internal

quotations omitted). Finally, he must show that he “raised a colorable federal defense.” Id. Private

parties may invoke the federal officer removal statute if they can demonstrate that they satisfy these

requirements. Id.

2 Moreover, Wimberly’s allegations that Defendants “conducted improper testing” are virtually identical to “improper

testing” allegations found in the complaints at issue in Rosen v. Montefiore, et al.,. See Rosen Compl., ¶¶ 22, 34; Connor

Compl., ¶ 16, Rosen, --- F. Supp. 3d at ---, 2022 WL 278106, at *3.

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First, the Facility Defendants, King, and Gelle plainly did not raise § 1442(a) as a ground for

removal. (See Doc. No. 1.) They may not raise a new substantive ground for removal in opposing

Wimberly’s Motion for Remand. See Hahn v. Rauch, 602 F. Supp. 2d 895, 909 (N.D. Ohio Aug. 15,

2008) (“A defendant cannot argue a new substantive ground as a basis for removal in opposing

remand.”).

Second, to the extent that Hyman raised § 1442(a) as a ground for removal,3 his argument is

not well-taken. Hyman asserts that he acted under federal authority in responding to the COVID-19

pandemic as an employee of a nursing home that participates in the Medicare and Medicaid programs.

(Doc. No. 16, PageID# 143.) This assertion lacks merit. Hyman cannot show that he acted under

federal authority within the meaning of the removal statute. See Maglioli, 16 F.4th at 404 (holding

that nursing home defendants could not seek removal based on federal officer removal statute). At

most, Hyman complied with regulations and orders promulgated by CMS during the pandemic. He

is not a government contractor, is not delegated federal authority, and did not provide any service that

the federal government would otherwise provide. See Singer, --- F. Supp. 3d at ---, 2021 WL

6111671, at *7; Rosen, --- F. Supp. 3d at ---, 2022 WL 278106, at *5 (citing Watson v. Philip Morris

Cos., 551 U.S. 142, 147 (2007); In re Commonwealth’s Motion to Appoint Couns. Against or Directed

3 It is unclear whether Hyman properly raised § 1442(a) as a ground for removal. First, Hyman’s sole mention of §

1442(a) in his Notice is nearly impossible to parse:

This case is removable under 28 U.S.C.A. § 1441(a) on the basis of ‘original jurisdiction’

because Plaintiff’s Complaint asserts a claim ‘arising under’ federal law within the meaning of §

1331. Original jurisdiction is also through an action pursuant to 28 U.S.C. §1442(a)(1). The Court

also has supplemental jurisdiction over state law claims under 28 U.S.C. § 1367.

(Id. at ¶ 12, emphasis added.) Further, Hyman offers no further argument regarding federal officer removal jurisdiction

in his Notice. (Id.) Second, the Facility Defendants already removed this case three days prior to Hyman’s removal,

with Hyman’s consent. (Doc. No. 1, ¶ 12, “. . . Defendants Ariel S. Hyman, Tina King, and Marie Gelle consent to

removal of this action to the United States District Court for the Northern District of Ohio, Eastern Division.”) Thus,

Hyman’s consent to the 11/5/2021 removal implies that he consented to removal on the basis of federal question

jurisdiction only.

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to Def. Ass’n of Philadelphia, 790 F.3d 457, 469 (3d Cir. 2015); Bennett, 607 F.3d at 1089)); Hudak

v. Elmcroft of Sagamore Hills, et al., --- F. Supp. 3d ---, ---, 2021 WL 7966603, at *13 (N.D. Ohio

Aug. 19, 2021); Segel, 2021 WL 5755639, at *1. Therefore, Hyman may not remove this case to

federal court under § 1442(a).

D. Defendants’ Motion for Leave to File Declaration Instanter

On December 29, 2021, Wimberly filed a Notice of Supplemental Authority, directing the

Court’s attention to a recently issued decision in a substantially similar consolidated case against

these same Defendants, Singer v. Montefiore, et al. (Doc. No. 21.) The Singer court concluded that

the plaintiffs’ state-law claims should be remanded because the defendants failed to “place[ ]

sufficient information in the record from which the Court can determine that these countermeasures

meet the statutory definition or the Secretary’s emergency declaration.” See Singer, --- F. Supp. 3d

at ---, 2021 WL 6111671, at *6. The Facility Defendants filed a Response to Plaintiff’s Notice of

Supplemental Authority, and Motion for Leave to File Declaration Instanter, seeking to file a

declaration from former Montefiore Chief Operating Officer Richard Schwalberg to confirm that all

facility COVID-19 tests were FDA-authorized. (Doc. No. 22, PageID# 215.)

The Court’s rationale for remanding Wimberly’s Complaint is different from that of the

Singer court. Therefore, the Facility Defendants’ proposed declaration is irrelevant to the Court’s

analysis and resolution of the pending Motion for Remand. Accordingly, the Facility Defendants’

Motion for Leave is denied.

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IV. Conclusion

For the reasons set forth above, Wimberly’s Motion for Remand is GRANTED. The Facility

Defendants’ Motion for Leave to File Declaration Instanter is DENIED. The case is REMANDED

to the Court of Common Pleas of Cuyahoga County, Ohio, from which it was removed.

IT IS SO ORDERED.

s/ Pamela A. Barker

PAMELA A. BARKER

Date: April 14, 2022 U. S. DISTRICT JUDGE

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