ESTATE OF CLARA T. TROILO v. ROSE TREE PLACE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ESTATE OF CLARA T. TROILO,

deceased, by FRANK TROILO, Executor

of the Estate of CLARA T. TROILO, Civil Action

Plaintiff, No. 22-cv-00097

v.

ROSE TREE PLACE, NSL ROSE TREE

PLACE, LLC d/b/a ROSE TREE PLACE,

WATERMARK RETIREMENT

COMMUNITIES, INC., WATERMARK

RETIREMENT COMMUNITIES, LLC,

WATERMARK OPERATOR, LLC,

CYNTHIA EVANS and KAREN

MLAWSKY,

Defendants.

MEMORANDUM OPINION

GOLDBERG, J. February 9, 2023

Plaintiff, the estate of Clara T. Troilo, originally filed this lawsuit in the Court of Common

Pleas of Philadelphia against Defendants Rose Tree Place, an assisted living facility. Ms. Troilo,

a former resident of one of Defendants’ facilities, died on April 29, 2020 after contracting COVID-

19. Plaintiff claims that Defendants caused her death by making misleading and fraudulent

statements to family members of residents regarding the number of positive COVID-19 cases

within the facility. Plaintiff alleges fraud, negligent misrepresentation, wrongful death, a survival

action, violations of consumer protection law, and breach of contract.

Defendants removed this case to federal court, and Plaintiff has filed a motion to remand.

For the following reasons, I will grant Plaintiff’s motion and remand this matter to the Philadelphia

Court of Common Pleas.

I. Factual and Procedural Background

The following facts were taken from Plaintiff’s Complaint.

Clara Troilo became a resident of Rose Tree Place, an assisted living facility in Media,

Pennsylvania, in March of 2019. (Compl. ¶ 16). In March of 2020, residents of the facility were

placed in isolation because of the COVID-19 pandemic, and families were no longer permitted to

visit. (Id. ¶ 23). During the ensuing months, Defendants provided the residents’ family members

with updates via email regarding resident care at the facility. (Id. ¶ 26).

Plaintiff alleges that Defendants failed to alert residents and their families of positive

COVID-19 cases in the facility, and that Defendants’ communications “contained material, false,

deceptive, fraudulent, and deceitful statements intended to induce residents and their families and

loved ones into a false sense of security and to conceal, hide, mask, and cover-up the deadly

presence of COVID-19 in the facility.” (Id. ¶¶ 28–29). Plaintiff claims that during March and

April of 2020, Defendants notified residents and families “about service and policy changes and

COVID issues,” but did not disclose the positive test results at the facility. (Id. ¶ 30). As an

example, Plaintiff notes that on April 9, 2020, Defendants sent residents’ family members an email

update stating that no positive COVID-19 test results had been reported at the facility. (Id. ¶ 31).

Plaintiff contends this statement and others were false, fraudulent, and misleading because

Defendants were aware of positive COVID-19 test results among residents as early as February of

2020 but failed to inform residents and families until April 22, 2020. (Id. ¶ 32). According to

Plaintiff, such statements caused Ms. Troilo’s death because the statements “induced [Ms. Troilo]

and her family into a false sense of security” and “deprived them of the ability to make proper and

informed decisions” regarding her care. (Id. ¶ 41).

In late April of 2020, Ms. Troilo was transferred by ambulance to Riddle Memorial

Hospital and was thereafter diagnosed with COVID-19. (Id. ¶ 37). She died on April 29, 2020.

(Id. ¶¶ 37–38).

After Plaintiff filed this action in the Court of Common Pleas, Defendants removed to this

court. Currently before me is Plaintiff’s motion to remand, which asserts that Defendants have not

demonstrated a proper basis for removal. Defendants respond that three grounds for federal

jurisdiction exist and thus removal was proper. First, Defendants posit that Plaintiff’s claims are

completely preempted by the exclusive remedy provided under the Public Readiness and

Emergency Preparedness Act, and the claims are therefore subject to federal jurisdiction. Second,

Defendants contend that federal officer jurisdiction exists under 28 U.S.C. § 1442 because while

treating residents during the pandemic, Defendants acted under specific directives from the federal

government. Lastly, Defendants argue that federal question jurisdiction exists pursuant to Grable

& Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005) because the Complaint

raises a substantial federal issue.

II. Legal Standard

Under 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if

the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A

defendant bears the burden of establishing that removal jurisdiction is proper. Boyer v. Snap-On

Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). Once an action is removed, a plaintiff may

challenge removal by moving to remand the case back to state court. 28 U.S.C. § 1447(c). Remand

to the state court is appropriate for “(1) lack of district court subject matter jurisdiction or (2) a

defect in the removal procedure.” PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).

Remand is mandatory and can occur at any time during the litigation if the court determines that

it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). “The defendant’s right to remove is to be

determined according to the plaintiffs’ pleading at the time of the petition for removal, and it is the

defendant’s burden to show the existence of federal jurisdiction.” Abels v. State Farm Fire & Cas.

Co., 770 F.2d 26, 29 (3d Cir. 1985). Because proceeding in a case without valid subject matter

jurisdiction would make any decree in the case void, removal statutes are strictly construed, and

all doubts are resolved in favor of remand. Id.

III. Statutory Background

To better understand Defendants’ remand opposition, I begin with a background on the

Public Readiness and Emergency Preparedness Act (“PREP Act”).

Defendants argue that remand to state court is improper because Plaintiff’s claims are

exclusively governed by a federal statute – the Public Readiness and Emergency Preparedness Act.

This Act authorizes the Secretary of the Department of Health and Human Services (“DHHS”) to

issue a declaration in response to a public health emergency. A PREP Act declaration provides

immunity from suit and liability for certain “covered persons” during the public health emergency.

42 U.S.C. §§ 247d-6b, 247d-6e. The Secretary’s declaration in the Federal Register will also

recommend certain “covered countermeasures” allowed by the Act. Id. § 247d-6d(b)(1). Covered

persons are immune from suit for claims of loss “caused by, arising out of, relating to, or resulting

from” the administration of covered countermeasures. Id. § 247d-6d(a)(1). Under the declaration

issued during the COVID-19 pandemic, “covered countermeasures” include all drugs, devices, or

products “used to treat, diagnose, cure, prevent, or mitigate COVID-19,” and their component

materials, or devices used to administer such products. 85 Fed. Reg. 15198. “Covered persons”

under the Act include those who manufacture, distribute, prescribe, administer, distribute, or

supervise or administer programs related to these covered countermeasures. Id. § 247d-6d(h)(i)(2).

An exception to immunity for covered persons exists for a claim of death or serious physical injury

proximately caused by willful misconduct. Id. § 247d-6d(d)(1). The Act describes such a claim

as “an exclusive Federal cause of action.” Id.

In March of 2020, the Secretary of DHHS issued a PREP Act declaration for the COVID-

19 public health emergency. The “[a]dministration of a covered countermeasure” includes

“physical provision of the countermeasures to recipients, or activities and decisions directly

relating to . . . delivery, distribution, and dispensing of the countermeasures to recipients” and

“management and operation of countermeasure programs.” 85 Fed. Reg. 15200. This Declaration

has been amended to clarify that the Secretary intended covered countermeasures to encompass

the full range allowed by the Act, including respiratory protective devices and all products that

“limit the harm such pandemic or epidemic might cause.” 42 U.S.C. §§ 247d-6d(i)(1)(D), 247d-

6d(i)(7)(A)(i)(II); 85 Fed. Reg. 35100. According to DHHS guidance, COVID-19 diagnostic tests

approved by the FDA fall within the Act’s definition of a “qualified pandemic or epidemic

product.” 42 U.S.C. § 247d-6d(i)(7); see Advisory Opinion on The Public Readiness and

Emergency Preparedness Act and The March 10, 2020 Declaration Under The Act (April 17, 2020,

as Modified on May 19, 2020, at 4).

IV. Analysis

As discussed above, removal is warranted only if the federal court would have had original

jurisdiction over the action, and it is the removing defendant’s burden to establish the existence of

federal jurisdiction. Defendants advance three arguments for jurisdiction: (1) complete

preemption of Plaintiff’s claims under the PREP Act; (2) federal officer removal; and (3) presence

of a substantial federal issue under Grable.

1. Complete Preemption Under The PREP Act

“Federal preemption is a defense to state law claims.” Maglioli v. Alliance HC Holdings,

LLC, 16 F.4th 393, 406 (3d Cir. 2021). Because federal preemption does not appear on the face

of a plaintiff’s complaint, it typically does not authorize removal to federal court. Id. The doctrine

of complete preemption, however, provides that where Congress has “so completely preempt[ed]

a particular area [of law],” a “civil complaint raising this select group of claims is necessarily

federal in character” and is treated as such even if the complaint only raises state law claims. Id.

at 407 (quoting Metro Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64 (1987)). “The PREP Act

unambiguously creates an exclusive federal cause of action” for claims of harm proximately caused

by willful misconduct, id. at 409, and therefore a showing that a plaintiff’s claims fall within that

exclusive federal cause of action would justify removal. See id. at 410 (emphasis in original).

Defendants argue that Plaintiff’s state law claims are completely preempted by the PREP

Act because the Complaint alleges willful misconduct related to Defendants’ administration of

covered countermeasures. (Def.’s Br. at 12). Plaintiff does not dispute that Defendants are

covered persons under the Act, or that Plaintiff’s fraud claims involve allegations of willful

misconduct. (Pl.’s Br. at 9). However, Plaintiff contends that “none of [their] claims in any way

involve a ‘covered countermeasure’ as required for the PREP Act to apply.” Id. Rather, Plaintiff

argues that their claims involve “statements and misrepresentations made by or on behalf of

Defendants,” and do not relate to “medical care provided to [Ms. Troilo],” “pandemic products

such as masks, testing products, or protective equipment,” or “the use of any drugs or medications,

or … respiratory protective devices.” Id. at 9, 11. Plaintiff posits that its claims regarding

Defendants’ failure to notify Ms. Troilo and her family about COVID-19 cases are evidenced by

“email communications and newsletters,” which are not “covered countermeasures” under the Act.

Id. at 11. Plaintiff additionally asserts that its claims involve “Defendants’ inaction,” which is not

covered by the Act. Id. at 12.

Defendants respond that Plaintiff’s Complaint “implicate[s] the administration of COVID

tests, which are indisputably countermeasures under the PREP Act[.]” (Def.’s Br. at 14).

Defendants point to portions of the Complaint that “allege[] misconduct implicating specific

decisions made by the facility as a program planner in administering COVID-19 tests, monitoring

results, notifying patients and authorized contacts of COVID-19 test results and potential exposure,

as well as making necessary and strategic decisions with respect to infection and control

protocols.” Id. Defendants also reject the argument that Plaintiff’s claims involve inaction, and

are thus not covered by the Act, describing those claims as “allegations of active willful

misconduct,” such as affirmative misrepresentations sent in emails. Id. at 18.

The Third Circuit recently addressed a PREP Act complete preemption argument in a

factually similar case. In Maglioli v. Alliance HC Holdings, LLC, the estates of several nursing

home residents who died from COVID-19 brought negligence and wrongful death claims against

the nursing homes in state court. 16 F.4th at 400. Plaintiffs alleged that the nursing homes

negligently failed to take the proper measures to protect residents from COVID-19, and as a result,

the residents contracted the virus and died. Id. Appealing the district court’s remand of the cases

to state court, the nursing homes argued that federal jurisdiction existed through complete

preemption by the PREP Act. Id.

Regarding complete preemption, the Maglioli court acknowledged that the PREP Act

unambiguously creates an exclusive federal cause of action for claims of willful misconduct. Id.

at 409–10. Therefore, if a complaint contained allegations of willful misconduct that were covered

by the PREP Act, the claims would be completely preempted and removal to federal court would

be proper. Id. However, the plaintiffs in Maglioli brought claims of negligence, not willful

misconduct. Accordingly, complete preemption did not apply, and removal on that basis was

improper. Id. at 410–11.

The arguments presented before me differ slightly from those posed in Maglioli. Here,

Plaintiffs admit that they have alleged instances of willful misconduct (in addition to their purely

state law claims). But the preemption analysis does not end there. Preemption only applies if

those claims of willful misconduct are also related to the administration of covered

countermeasures under the PREP Act.

For the following reasons, I agree with Plaintiff that the loss alleged in the Complaint is

not related to the administration or use of covered countermeasures and, therefore, the claims are

not covered by the PREP Act.

According to the Secretary’s declaration, “[a]dministration of a covered countermeasure”

includes “physical provision of the countermeasures to recipients, or activities and decisions

directly relating to . . . delivery, distribution, and dispensing of the countermeasures to recipients”

and “management and operation of countermeasure programs.” 85 Fed. Reg. 15200. This

definition only extends to management and operation “insofar as those activities directly relate to

the countermeasure activities.” Id. Plaintiff does not claim that Ms. Troilo’s death resulted from

the direct administration of COVID-19 tests. Rather, the Complaint alleges that Ms. Troilo and

her family relied on Defendants’ statements in deciding that she would remain at Rose Tree Place,

and that her subsequent death resulted from Defendants’ misleading statements about the presence

of positive COVID-19 cases within the facility. In short, the alleged conduct at issue here is the

making of false statements and misrepresentations regarding the results of COVID-19 tests, not

the actual administration of those tests.1

My conclusions are consistent with federal courts in other jurisdictions that have examined

this issue. For example, in Estate of Spring v. Montefiore Home, 2022 WL 1120381, at *5 (N.D.

Ohio Apr. 14, 2022), a district court found that “falsifying COVID-19 test results” and

“intentionally obscuring the number of active COVID-19 cases at [a] facility to hide a COVID-19

breakout within [that] facility” do not constitute the administration or use of covered

countermeasures. While Plaintiff here does not suggest that Defendants falsified test results,

sending emails to resident family members intentionally obscuring the number of COVID-19 cases

at the facility is similarly unrelated to the physical provision of tests. Neither scenario involves

conduct contemplated by the PREP Act, which covers activities intended to prevent or limit the

harm caused by a pandemic.

Given all of the above, I conclude that Plaintiff’s claims of loss do not relate to the

administration or use of a covered countermeasure, and removal based on complete preemption

under the PREP Act is improper. Rosen v. Montefiore, 582 F. Supp. 3d 553, 561 (N.D. Ohio 2022)

(“[F]alsifying Covid-19 test results is not the ‘administration’ or ‘use’ of a covered

countermeasure. . . . This is not conduct contemplated within the scope of the Act.”).

1 The reporting of COVID-19 test results could be viewed as fundamental to the administration of

COVID-19 testing. Indeed, one objective of testing is to alert communities to transmission risk. Likewise,

an institution’s decision regarding when and how to communicate test results might be considered part of

administering its testing program. But there is a difference between deciding on the manner of reporting

results and actively communicating false statements or misrepresentations about those results. Such

conduct is not directly related to testing, as it contravenes testing’s very purpose by shrouding the

information this countermeasure is designed to reveal.

2. Federal Officer Removal

Defendants also assert that this case is removable under 28 U.S.C. § 1442(a)(1). (Notice of

Removal ¶ 76). A person acting under an officer or agency of the United States may remove a

state court action commenced against them to federal court. 28 U.S.C. § 1442(a)(1). A defendant

must satisfy four requirements to remove under this provision:

(1) [T]he defendant must be a “person” within the meaning of the statute; (2) the plaintiff’s

claims must be based upon the defendant “acting under” the United States, its agencies, or

its officers; (3) the plaintiff’s claims against the defendant must be “for or relating to” an

act under color of federal office; and (4) the defendant must raise a colorable defense to

the plaintiff’s claims.

Maglioli, 16 F.4th at 404.

Defendants explain that during the pandemic, “federal authorities have been explicitly

guiding” nursing homes’ “operational decisions.” (Def.’s Br. at 25). Defendants cite the

government’s designation of healthcare providers as part of the nation’s “critical infrastructure,”

and assert that the government “enlisted them to carry out the duty of the government itself to

ensure the continued provision of ‘services critical to the national defense, continuity of

government, economic prosperity, and quality of life in the United States.’” Id. at 24.2 Defendants

further contend that the “detailed clinical directives and instructions” issued by the CDC and other

federal authorities “represented a marked departure from the regulatory structure which existed

before the pandemic.” Id. at 26.

2 Defendants cite to the following provisions of The Disaster Relief Act of 1974:

42 U.S.C. § 5195c(e) defines “critical infrastructure” as “systems or assets, whether physical or

virtual, so vital to the United States that the incapacity or destruction of such systems and assets

would have a debilitating impact on security, national economic security, national public health or

safety, or any combination of those matters.”

42 U.S.C. § 5195c(b)(3) describes Congress’s finding that “[a] continuous national effort is

required to ensure the reliable provision of cyber and physical infrastructure services critical to

the maintaining the national defense, continuity of government, economic prosperity, and quality

of life in the United States.”

The Maglioli court also considered the issue of federal officer removal. The court

explained that classic examples of parties who “act under” federal officers are government

contractors and nonprofit community defenders who represent indigent defendants. 16 F.4th at

405. The defendants in Maglioli argued that they were acting under the federal government during

the pandemic, as they were heavily regulated at the time by entities such as the Centers for

Medicare & Medicaid Services (“CMS”) and the Centers for Disease Control and Prevention

(“CDC”), both of which published comprehensive directives to nursing homes detailing how to

limit the spread of the virus. Id.

The court concluded that “the nursing homes were not ‘acting under’ the United States, its

agencies, or its officers” as required by section 1442(a)(1). Id. at 404. The court explained that

an entity “subject to detailed regulation and whose ‘activities are highly supervised and monitored’

is not ‘acting under’ a federal officer.” Id. (quoting Watson v. Phillip Morris Cos., 551 U.S. 142,

147 (2007)). Instead, an entity must show “something beyond regulation or compliance”—“that

their actions ‘involve an effort to assist, or to help carry out, the duties or tasks of the federal

superior.’” Id. at 404–05 (quoting Watson, 551 U.S. at 152) (emphasis in original). The court

highlighted the examples noted above, explaining that government contractors are considered to

be acting under the federal government because they “help the Government to produce an item

that it needs,” Id. at 405 (quoting Watson, 551 U.S. at 153), as well as nonprofit community

defenders because they are “delegated authority to [represent indigent defendants] under the

Criminal Justice Act and 18 U.S.C. § 3599,” and “provide[] a service the federal government

would itself otherwise have to provide.” Id.

Unlike government contractors, the nursing home defendants in Maglioli did “not assist or

help carry out the duties of a federal superior”; and unlike nonprofit community defenders, they

were “not delegated federal authority, nor [did] they provide a service that the federal government

would otherwise provide.” Id. And while the nursing homes pressed that they were heavily

regulated by federal entities, the court found this regulation alone to be insufficient, characterizing

the agency publications the nursing homes were acting under as simply “guidance.” Id. The court

also noted their designation as “essential critical infrastructure” for the federal government was

similarly insufficient, noting this was a designation the nursing homes shared with “doctors,

weather forecasters, clergy, farmers, bus drivers, plumbers, dry cleaners, and many other workers.”

Id. at 406 (“Congress did not deputize all of these private-sector workers as federal officers.”).

District courts in this circuit have held, consistent with Maglioli, that nursing home

defendants who followed guidance from the federal government during the pandemic were not

“acting under” officers of the United States for purposes of federal officer removal. See e.g.,

Guyer Estate of Markle v. Milton Nursing and Rehab. Ctr., No. 20-cv-2381, 2021 WL 5112269,

at *1 (M.D. Pa. Nov. 3, 2021) (rejecting federal officer jurisdiction because “under Maglioli,

government guidance won’t do[.]”); Morra v. 700 Marvel Road Operations, LLC, No. 22-cv-627,

2022 WL 2915639, at *4 (D. Del. July 25, 2022) (“Defendants were not ‘acting under’ a federal

officer, they have not demonstrated something beyond regulation or compliance, they are not

government contractors, and they are not providing a service that the federal government would

otherwise provide.”). I find Defendants’ argument for federal officer removal unpersuasive for

the same reasons it has been repeatedly rejected by other courts in this circuit following Maglioli.

Lastly, Defendants cite Fields v. Brown, 519 F. Supp. 3d 388, 393 (E.D. Tex. 2021), in

which a district court in the Eastern District of Texas held that a Tyson Foods meatpacking facility

was “acting under” federal authority in ensuring there was an adequate food supply during the

pandemic. The court in Fields concluded that Tyson Foods satisfied the “acting under”

requirement because it was designated as “critical infrastructure” by the federal government and

interacted with multiple government agencies, and because additional government funding was

allocated for monitoring its facilities. Id. at 392–93. Tyson Foods itself had also worked and

communicated directly with the U.S. Food and Safety Inspection Service, which had employees

staffed onsite at the facility, and worked with the Department of Agriculture and the Federal

Emergency Management Agency (“FEMA”) to receive personal protective equipment for its

employees. Id.

Here, unlike Tyson Foods in Fields, Defendants do not allege that they themselves

communicated or worked directly with federal agencies. The facility was subject to the same

pervasive regulations as other nursing facilities, and nursing facilities were not enlisted to provide

services that the government otherwise would. The federal government simply recognized in its

regulatory directives the importance of providing quality healthcare during a pandemic.

Accordingly, Defendants did not “act under” an officer or agency of the United States for purposes

of federal officer removal, and removal on this basis is improper.

3. Federal Question Jurisdiction Under The Grable Doctrine

Defendants lastly argue that federal question jurisdiction exists in this case under Grable

& Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005). Grable recognized that

certain state law claims may be considered “arising under the Constitution, laws, or treaties of the

United States,” 28 U.S.C. § 1331, where those claims “implicate significant federal issues.” Id. at

308. Under the Grable doctrine, federal question jurisdiction exists for state law claims in which

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) (citing Grable, 545 U.S. at 313–14). The “classic

example” of a claim necessarily raising a federal issue is one which requires “a determination of

federal law as an essential element of the plaintiff’s state law claim.” Manning, 772 F.3d at 163

(citing Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199–200 (1921) (federal jurisdiction

existed where plaintiff sued under a state law which forbade the investment in illegal securities

and the basis for illegality was that the securities were issued unconstitutionally)).

Defendants argue that “the PREP Act expresses a clear intention to supersede and preempt

state control of the very issues raised by plaintiff, i.e., issues concerning the defendants’ decisions

as to the use or administration of covered countermeasures.” (Def. Br. at 19). In support,

Defendants cite a 2021 Advisory Opinion issued by the General Counsel of DHHS in which he

discusses “the growing number of suits related to the use or non-use of covered countermeasures

against COVID-19.” See Advisory Opinion 21-01 On The Public Readiness and Emergency

Preparedness Act Scope of Preemption Provision (Jan. 8, 2021). The Advisory Opinion states

that: “ordaining the metes and bounds of PREP Act protection in the context of a national health

emergency necessarily means that the case belongs in federal court.” Id. at 5. Plaintiff responds

that its claims satisfy none of the requirements for federal question jurisdiction under Grable.

The Maglioli court also considered whether federal jurisdiction existed under the Grable

doctrine in this context. The court concluded that the defendants failed Grable’s first step because

the plaintiff’s claims did not “necessarily raise” a federal issue. 16 F.4th at 413. The defendants

argued that PREP Act immunity was a significant federal issue, but the court explained that “a

PREP Act preemption defense is not ‘necessarily raised’ by a well-pleaded state-law negligence

complaint.” Id. at 413. Preemption would at best be a defense to the state law claims, and the

“estates would properly plead their state-law negligence claims without mentioning the PREP Act,

so the PREP Act is not ‘an essential element of the plaintiffs’ state law claim.’” Id. (quoting

Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 163 (3d Cir. 2014)).

Plaintiff’s claims do not satisfy the first part of the Grable test because they do not

“necessarily raise” a federal issue. There is no indication here that any essential element of

Plaintiff’s claims requires a determination of federal law. Defendants assert generally that

Plaintiff’s claims “implicate[] disputed and substantial federal issues given the PREP Act.” (Def.’s

Br. at 20). But Plaintiff’s Complaint consists entirely of state law claims. The only federal issue

here is whether federal jurisdiction exists to allow for removal. The PREP Act is implicated only

through Defendants’ assertion of complete preemption, which is a jurisdictional doctrine3 and does

not form part of an essential element of Plaintiff’s state law claims.

Defendants contend that Maglioli is distinguishable because the plaintiffs there only

alleged negligence, and thus the PREP Act applied only as a defense to their state law claims,

whereas Plaintiff here brings willful misconduct claims, which are the type completely preempted

by the PREP Act. (Def.’s Br. at 21). First, I have already found that Plaintiff’s claims are not

completely preempted by the PREP Act because their alleged loss is not related to the

administration of covered countermeasures. But even if the claims were completely preempted,

as explained above, the doctrine of complete preemption is a jurisdictional issue only relevant for

determining whether removal is warranted. As such, it has no bearing on the actual substance of

Plaintiff’s claims and removal under Grable is improper.

3 In re U.S. Healthcare, Inc., 193 F.3d 151, 160 (3d Cir. 1999) (“Unlike ordinary preemption, which

would only arise as a federal defense to a state-law claim, complete preemption operates to confer original

federal subject matter jurisdiction notwithstanding the absence of a federal cause of action on the face of

the complaint.”); Metropolitan Edison Co. v. Pa. Pub. Util. Com’n, 767 F.3d 335, 363 (3d Cir. 2014)

(“Complete pre-emption, in other words, arises in the context of removal jurisdiction. It serves as a basis

for federal jurisdiction over causes of action that may appear, on their face, to be based on state law but that

are in truth only actionable under federal law due to Congress's clear intent ‘to completely pre-empt a

particular area of law.’)

V. CONCLUSION

For the reasons given, I will grant Plaintiff’s Motion to Remand. An appropriate order

follows.