Manyweather v. Woodlawn Manor

Case: 21-30718 Document: 00516384925 Page: 1 Date Filed: 07/07/2022

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

July 7, 2022

No. 21-30718

Lyle W. Cayce

Clerk

Arthur Manyweather, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Felix Manyweather, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Kimmieko Manyweather, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Alison Tucker, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Emanami Kirk, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Timothy Manyweather, Individually, on behalf of

Unopened Succession of Barbara Jean McGraw;

Barbara Jean McGraw Estate,

Plaintiffs—Appellees,

versus

Woodlawn Manor, Incorporated, doing business as Oaks;

Louisiana Nursing Home Association Liability Trust,

Defendants—Appellants.

Appeal from the United States District Court

for the Western District of Louisiana

No. 3:21-CV-1317

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No. 21-30718

Before Smith, Duncan, and Oldham, Circuit Judges.

Jerry E. Smith, Circuit Judge:

The Manyweathers sued a nursing home and its insurer in state court

after their mother contracted COVID-19 there and died. The home, Wood-

lawn Manor, removed the action to federal court. After dismissing the plain-

tiffs’ federal claims, the district court remanded to state court, declining sup-

plemental jurisdiction over the state-law claims that remained.

Woodlawn contests that remand. It says that the state-law claims pose

federal questions that the district court could and should have heard. But

even if those claims did not pose federal questions, Woodlawn contends, the

court should have exercised supplemental jurisdiction over them despite hav-

ing dismissed all federal claims. We disagree on both fronts and affirm.

I.

The Manyweathers’ state-court petition alleged that Woodlawn had

“failed or refused” to act to prevent the COVID-19 disease from spreading

among its residents and staff. Though its elderly residents were especially

vulnerable to the virus, Woodlawn (according to the plaintiffs) dithered: It

did not restrict visits or screen visitors for the disease. It did not screen resi-

dents “daily” for COVID-19 symptoms. It did not provide proper protective

gear to staff. And it did not monitor sick residents to “quickly identify” those

needing intensive care. Instead, the plaintiffs claimed, Woodlawn “know-

ingly exposed” their mother to a resident with the disease, and, when she

took ill, did not “timely transfer” her to get the care she needed.

Framing their suit as a “wrongful death, loss of chance of survival, and

survival action,” the Manyweathers asserted that Woodlawn’s negligence or

gross negligence caused their mother’s death. They also appeared to assert

claims under the Americans with Disabilities Act (“ADA”) and federal rules

regarding Medicare and Medicaid.

Woodlawn removed to federal court, per 28 U.S.C. §§ 1441 and 1446,

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asserting two grounds for federal jurisdiction over the state-law claims: First,

because a federal statute, the Public Readiness and Emergency Preparedness

Act, 42 U.S.C. §§ 247d-6d, 247d-6e (“PREP Act” or “the Act”), preempted

those claims, they really arose under federal law, see 28 U.S.C. § 1331;

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 3–4 (2003); second, even if they

weren’t preempted, the district court had supplemental jurisdiction to hear

those claims, thanks to the Manyweathers’ facially federal claims.

Woodlawn soon moved to dismiss all claims. It asserted that the plain-

tiffs had failed to state a claim because the PREP Act immunizes Woodlawn

from liability for its pandemic response. That shield, Woodlawn acknowl-

edged, would not apply had the plaintiffs pleaded “willful misconduct” by

Woodlawn. But “to the extent” that the plaintiffs pleaded that claim, the

PREP Act would require that the plaintiffs proceed before the federal district

court for the District of Columbia. In that case, Woodlawn concluded, the

district court should transfer or dismiss the action for improper venue.

The magistrate judge (“M.J.”) urged the district court to dismiss the

plaintiffs’ claims under the ADA and federal Medicare and Medicaid regula-

tions. That left “only Plaintiffs’ state-law claims of negligence and gross neg-

ligence,” which the M.J. advised remanding to the state court.

The M.J. first rejected Woodlawn’s contention that the PREP Act

transformed the plaintiffs’ state-law claims into federal questions. The M.J.

reasoned that the PREP Act is an immunity statute, not a substitute for state

tort law, and does not grant exclusive jurisdiction to the federal courts over

state-law negligence claims.

Having determined that the plaintiffs’ state-law claims did not pose

federal questions, the M.J. advised the district court to decline supplemental

jurisdiction over those claims. No federal claim would survive dismissal, so

the district court could “decline to exercise supplemental jurisdiction.”

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28 U.S.C. § 1367(c). Declination was proper, the M.J. thought, because

“judicial economy, convenience, fairness, and comity” favored it: The fed-

eral proceedings had just started, so remand would not inconvenience Wood-

lawn. And both federalism and comity favored allowing state courts to resolve

the state-law claims.

Woodlawn objected to the proposed remand. It urged that the Many-

weathers had pleaded a willful-misconduct claim under the PREP Act—not

just state-law negligence claims, as the M.J. had concluded. Alternatively,

Woodlawn requested that the district court exercise supplemental jurisdic-

tion over the negligence claims.

The district court adopted the M.J.’s report and recommendation. It

dismissed the plaintiffs’ ADA claim as well as their claims under federal Med-

icare and Medicaid regulations. And it remanded the negligence claims to

state court. Woodlawn appeals.

II.

This appeal presents two questions.

The first is whether there is federal-question jurisdiction over the

state-law claims. The district court held that there is not; we review de novo

that jurisdictional holding. Reed v. Goertz, 995 F.3d 425, 429 (5th Cir. 2021).

The second is whether the district court should have exercised sup-

plemental jurisdiction even after dismissing all federal claims. The court de-

clined to do that; we review that choice for abuse of discretion. Heggemeier v.

Caldwell County, 826 F.3d 861, 872 (5th Cir. 2016) (per curiam).

A.

We turn first to whether the Manyweathers’ state-law claims for neg-

ligence “aris[e] under” federal law. 28 U.S.C. § 1331. If they do, then the

district court had original jurisdiction over those claims, which in turn would

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mean that federal jurisdiction remained even after the court had dismissed

the other federal claims.

We agree with the district court: The Manyweathers’ claims do not

arise under federal law, so they cannot supply original jurisdiction.

1.

The notion that state-law claims can “arise under” federal law is not

intuitive. State questions are not federal questions. Even where a plaintiff

brings state-law claims that implicate federal law, those claims cannot alone

sustain federal jurisdiction. A defendant cannot remove an action to federal

court unless the plaintiff pleaded a federal question on the face of his com-

plaint. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 153–54 (1908).

That principle is known as the well-pleaded-complaint rule. Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63 (1987).

This case concerns a “corollary” to that rule, id.: Even where the

complaint contains only a state-law claim, federal-question jurisdiction exists

if Congress has created an “exclusive cause of action,” “procedures,” and

“remedies” that “wholly displace[ ] th[at] state-law cause of action.” Mit-

chell v. Advanced HCS, L.L.C., 28 F.4th 580, 585 (5th Cir. 2022) (quoting

Anderson, 539 U.S. at 8). In other words, a state-law claim may raise a federal

question if Congress has “so completely preempted” that legal area “that any

civil complaint raising” the state-law claim “is necessarily federal in char-

acter.” Metro. Life, 481 U.S. at 63–64 (cleaned up).

The complete-preemption corollary is narrow. It can apply only where

three conditions are met: First, federal law “creates a cause of action that

both replaces and protects the analogous area of state law.” Mitchell, 28 F.4th

at 585 (citation omitted). Second, Congress has empowered federal courts to

hear that cause of action. Ibid. Third, Congress clearly intended that grant of

jurisdiction to be exclusive. Ibid. Once those conditions are met, the party

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invoking federal jurisdiction must show that the plaintiff “could have brought

his state-law claims under th[at] federal cause of action.” Ibid. (citation

omitted).

2.

Woodlawn contends that the PREP Act completely preempts the

state-law claims. The Act shields covered persons, “such as pharmacies and

drug manufacturers,” from suits and liability “during a public-health

emergency.” Est. of Maglioli v. All. HC Holdings, LLC, 16 F.4th 393, 400 (3d

Cir. 2021). “The Act lies dormant until invoked by the Secretary of the

Department of Health and Human Services . . . .” Ibid. “If the Secretary

deems a health threat a public-health emergency, he may publish a declaration

in the Federal Register recommending certain ʻcovered counter-

measures’”—such as vaccines and treatments. Ibid. (quoting 42 U.S.C.

§ 247d-6d(b)(1)). The PREP Act’s liability shield extends only to “the

administration . . . or the use” of those “covered countermeasures.”

42 U.S.C. § 247d-6d(a)(1). If the shield applies, “the sole remedy is com-

pensation” from a fund administered by the Secretary. Mitchell, 28 F.4th

at 586; see also 42 U.S.C. § 247d-6e(b).

The Act states only one exception to its liability shield: A claimant

may sue “a covered person for death or serious physical injury proximately

caused by [that person’s] willful misconduct.” 42 U.S.C. § 247d-6d(d)(1).

But that exception is substantively narrow. “The term ʻwillful misconduct’

. . . denote[s] 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.” § 247d-6d(c)(1)(A). Will-

ful misconduct is a “more stringent” standard of liability than is “reckless-

ness” or any “standard of negligence.” § 247d-6d(c)(1)(B).

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The exception also is procedurally narrow. Willful-misconduct claims

may proceed only in the federal district court for the District of Columbia.

§ 247d-6d(e)(1). Plaintiffs must satisfy strict standards of pleading 1 and

proof 2; there are special limits on damages 3; and defendants may immediately

appeal orders denying motions for dismissal or summary judgment. 4

3.

Woodlawn urges this court to read the state-court petition as asserting

state-law negligence claims and claims for willful misconduct under the Act.

Woodlawn says that the PREP Act completely preempts both kinds of claims,

so we should reverse the judgment remanding to state court.

We instead affirm—for two reasons. First, this court has held that the

PREP Act does not preempt state-law negligence claims. Second, the Many-

weathers did not plead willful-misconduct claims. But even if they had, they

could not have brought them under the Act.

a.

We turn first to the threshold problem: We already have decided that

the PREP Act does not preempt state-law negligence claims. Yet those are

what our plaintiffs pleaded. Those claims cannot confer original federal

jurisdiction.

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

sented nearly identical facts. After a nursing-home resident died from

1

§ 247d-6d(e)(3), (4).

2

§ 247d-6d(c)(3) (“[T]he plaintiff shall have the burden of proving by clear and

convincing evidence willful misconduct by each covered person sued and that such willful

misconduct caused death or serious physical injury.”).

3

E.g., § 247d-6d(e)(7), (8).

4

§ 247d-6d(e)(10).

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COVID-19, her son sued the home in state court, alleging negligence and

gross negligence. Id. at 584. The home removed to federal court, theorizing

that the PREP Act completely preempted the son’s claims.

The court rejected that contention. We first noted that the PREP Act

does not create a cause of action for negligence—only for willful misconduct,

a “more stringent” standard for liability. Id. at 586 (citation omitted). The

home thus had not identified a “cause of action that both replaces and pro-

tects” the state law of negligence. Id. at 585 (citation omitted). Though the

son conceivably could have resorted to the PREP Act’s compensation fund,

that fund, we observed, “is not a cause of action.” Id. at 587 (quoting Magli-

oli, 16 F.4th at 411). Even if it were, Congress has denied us power to review

how the Secretary administers the fund. Id. (citing 42 U.S.C. § 247d-

6e(b)(5)). And complete preemption can’t exist unless the federal courts

have been granted jurisdiction over the purportedly preempted claims. See

id. at 585.

“[T]he PREP Act,” we concluded, “does not create a general cause of

action that would preempt state-law negligence claims. Nor does it contain

ʻa specific jurisdictional grant to the federal courts’ to adjudicate any such

cause of action.” Id. at 587 (quoting Gutierrez v. Flores, 543 F.3d 248, 252 (5th

Cir. 2008)). Absent those features, the Act could not preempt the Mitchell

plaintiff’s claims.

The same holds here. The Manyweathers asserted state-law claims

for negligence. Under Mitchell, the PREP Act does not preempt those claims,

so they cannot support original federal jurisdiction.

b.

Though acknowledging that Mitchell governs the negligence claims,

Woodlawn asserts that the plaintiffs also pleaded a willful-misconduct claim.

The Act preempts that claim, Woodlawn says, so the district court had orig-

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inal jurisdiction to dismiss the action or to transfer it to the federal district

court for the District of Columbia, where willful-misconduct actions belong.

We disagree.

Recall that the PREP Act strictly defines willful misconduct, which

consists, under the Act, of “act[s] or omission[s] that [are] taken (i) inten-

tionally 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.”

42 U.S.C. § 247d-6d(c)(1)(A) (emphasis added). The state-court petition

does not suggest that the Manyweathers “could have brought” or meant to

bring a willful-misconduct claim. See Mitchell, 28 F.4th at 586. The petition

expressly asserts negligence causes of action and pleads violations of the ADA

and federal Medicare and Medicaid rules.

Woodlawn tries to wring a willful-misconduct claim from one sentence

of the petition, which states that the plaintiffs’ “mother . . . was knowingly

exposed to coronavirus” at Woodlawn Manor. But a defendant’s knowledge

is only part of proving willful misconduct under the Act. And “nowhere” in

their petition “do the [plaintiffs] allege or imply that [Woodlawn] acted

ʻintentionally to achieve a wrongful purpose.’” Maglioli, 16 F.4th at 411 (cita-

tion omitted). Instead, the plaintiffs allege that Woodlawn’s “gross negli-

gence and failure to provide the most basic level of care to safeguard its resi-

dents’ health . . . ultimately resulted in [their] mother’s death.” That asser-

tion, repeated throughout the petition, sounds in negligence, not willful

misconduct.

Finding little support in the state-court petition, Woodlawn also

invokes the plaintiffs’ reply to its motion to dismiss. There, the plaintiffs did

maintain that their petition should survive dismissal because it asserted

willful-misconduct claims under the Act. But that reply is irrelevant. What

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matters is what the petition said, and the petition did not advance that theory.

Just as a plaintiff cannot defeat a motion to dismiss by advancing unpleaded

facts or theories, see Ibe v. Jones, 836 F.3d 516, 524 n.6 (5th Cir. 2016), a

defendant cannot invoke unpleaded matters to establish federal-question

jurisdiction. 5

But let’s suppose that Woodlawn is right: The plaintiffs did mean to

plead a willful-misconduct claim, and the Act’s cause of action for willful mis-

conduct does satisfy the requisites of complete preemption. 6 In that event,

Woodlawn still would need to show that the plaintiffs “could have brought”

their willful-misconduct claim under the PREP Act. Mitchell, 28 F.4th at 585

(citation omitted). And Woodlawn has not shown that.

The PREP Act shields covered persons “from suit or liability . . . 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 counter-

measure.” 42 U.S.C. § 247d-6d(a)(1). Lest that provision be read too

broadly—the curbstone philosopher’s theory of relation comes to mind 7—

the Act clarifies that it covers “any claim for loss that has a causal relationship

with the administration . . . or use” of a covered countermeasure. § 247d-

6d(a)(2)(B). But the Manyweathers do not allege loss caused by the “admin-

istration” or “use” of COVID-19 countermeasures. They instead assert that

Woodlawn’s failure to administer or use those countermeasures caused their

5

Cf. Willy v. Coastal Corp., 855 F.2d 1160, 1165 (5th Cir. 1988) (“In cases removed

to federal court, the plaintiff’s well-pleaded complaint, not the [defendant’s] removal peti-

tion, must establish that the case arises under federal law.”).

6

We reserved that question in Mitchell, 28 F.4th at 587, and again reserve it here.

7

Cal. Div. of Lab. Standards Enf’t v. Dillingham Constr., N.A., 519 U.S. 316, 335

(1997) (Scalia, J., concurring) (“[A]pplying the ʻrelate to’ provision [of ERISA] according

to its terms was a project doomed to failure, since, as many a curbstone philosopher has

observed, everything is related to everything else.”).

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mother’s death.

We don’t rule out that a failure to use a covered countermeasure could

relate to its use or administration. For example, a lifesaving drug could be in

limited supply, forcing a covered healthcare provider to choose who may live

or die. But our plaintiffs do not protest the “[p]rioritization or purposeful

allocation of a Covered Countermeasure.” 8 Instead, they complain that

Woodlawn did not deploy those measures at all. Taking as true what the

plaintiffs allege, we cannot say that they assert willful misconduct under the

Act, even if they do assert willful misconduct of some kind. Cf. Aetna Health

Inc. v. Davila, 542 U.S. 200, 211–14 (2004).

None of that means that Woodlawn is not entitled to immunity under

the PREP Act. It may be; the state court will have the option to decide that

question on remand. Likewise, we do not opine on the merits of the plaintiffs’

claims or the truth of their allegations. All we decide is whether the state-law

claims pose federal questions. And because the plaintiffs’ factual allegations,

taken as true, do not state and could not support a willful-misconduct claim

under the Act, there is no federal question here.

B.

No federal question remains in this case. So Woodlawn’s only hope to

stay in federal court is supplemental jurisdiction. That hope is slim. A dis-

trict court “may decline to exercise supplemental jurisdiction over a claim . . .

if . . . the district court has dismissed all claims over which it has original ju-

risdiction.” 28 U.S.C. § 1367(c)(3). That describes this case, but Woodlawn

says that the district court abused its discretion.

8

Fourth Amendment to the Declaration Under the PREP Act for Medical Coun-

termeasures Against COVID-19, 85 Fed. Reg. 79190, 79197 (Dec. 9, 2020).

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That contention lacks merit. We test a remand under subsection (c)(3)

by assessing the common-law factors of “judicial economy, convenience, fair-

ness, and comity.” Heggemeier, 826 F.3d at 872 (citation omitted). Applying

those factors, we’ve held that a court generally “should decline to exercise

jurisdiction over remaining state-law claims when all federal-law claims are

eliminated before trial.” Ibid. (cleaned up). So here. The district court re-

manded during the pleading stage. No discovery had taken place. Any trial

was a distant possibility—months, if not years away—if it would happen at

all. The court did not abuse its discretion by remanding.

Woodlawn again urges that this case is different because the plaintiffs

“invoke the type of intentional and willful conduct for which the PREP Act

provides a federal cause of action.” On that ground, Woodlawn contends that

this case implicates questions of federal policy, not of state law. But we al-

ready have rejected that position. The state-court petition no longer states

any federal claims, but only negligence claims under Louisiana law. Those

claims belong in state court.

The judgment of remand is AFFIRMED.

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