Dupervil v. All. Health Operations, LLC

Dupervil v. All. Health Operations, LLC

Opinion

 [*241]  MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

This case arises from the death of Plaintiff's father, who passed away after contracting COVID-19 while residing at a nursing home in Brooklyn, New York. Plaintiff filed suit in state court against the nursing home and unnamed health care professionals working at the facility, asserting various state-law claims for negligence, gross negligence, wrongful death, malpractice, and violation of New York Public Health Law. Defendants removed the matter to this Court on two alleged, independent grounds: (1) that there is federal-question jurisdiction; and (2) that Defendants are federal officers entitled to a federal forum. Plaintiff [**2]  presently moves to remand. Because this case presents no question of federal law that confers jurisdiction on the Court, and because Defendants cannot be considered federal officers, the Court grants the motion to remand.

BACKGROUND

I. Case Background

Plaintiff is the proposed administrator of his father's estate. (Complaint, Dkt. 1-1,  [*242]  ¶¶ 1-2.) Plaintiff's father, a resident of the State of New York, lived at the Linden Center for Nursing and Rehabilitation ("Linden Center") in Brooklyn. (Id. ¶¶ 4-5.) While residing at Linden Center, Plaintiff's father contracted COVID-19, and died as a result on April 1, 2020. (Id. ¶¶ 33-34.)

Following his father's death, Plaintiff filed this suit in the Supreme Court of New York, Kings County, on May 26, 2020. The crux of Plaintiff's complaint is that the Linden Center and health care professionals working at the facility (collectively, "Defendants") failed to take precautions to prevent the spread of COVID-19, which ultimately caused the death of Plaintiff's father. (Id. ¶ 35.) In particular, Defendants allegedly "failed to appropriate[ly] separate residents in accordance with local, state and federal guidance"; "failed to enforce social distancing [**3]  among residents"; "failed to enforce social distancing among staff"; "failed to cancel all group activities and communal dining"; "failed to timely restrict all visitors"; "failed to ensure appropriate staffing levels"; "failed to ensure all residence [sic] wear a cloth face covering"; "failed to ensure all health care professionals were provided a facemask or cloth covering while in the facility"; "failed to ensure all health care professionals wore a facemask or cloth covering while in the facility"; "failed to adequately screen volunteers and non-essential healthcare personnel prior to allowing their entrance into the facility"; "failed to actively screen everyone entering the building for fever and symptoms of COVID-19"; and "failed to monitor local, state and federal health guidance on the coronavirus for maintaining the safety of its residents." (Id. ¶¶ 110-21; see also id. ¶¶ 134-45, 158-69.) The Complaint alleges various state-law claims of negligence, gross negligence, wrongful death, medical and nursing malpractice, and violation of New York Public Health Law. (Id. ¶¶ 57-197.)

On August 31, 2020, Defendants filed a Notice of Removal, asserting two independent grounds for removal. [**4]  (See Notice of Removal, Dkt. 1.) First, Defendants argue that the case is removable under 28 U.S.C. § 1441(a) because it is one "arising under" federal law within the meaning of 28 U.S.C. § 1331. (Id. ¶ 9.) Specifically, according to Defendants, although Plaintiff's claims sound in state tort law, the claims are completely preempted by, or necessarily and significantly implicate, the Public Readiness and Emergency Preparedness ("PREP") Act, 42 U.S.C. § 247d-6d. (Id. ¶¶ 14-16, 20-24.) Second, and alternatively, Defendants argue that the case is removable under 28 U.S.C. § 1442(a)(1) because Defendants are federal officers or the equivalent. (Id. ¶ 12.) Defendants assert that they qualify for federal-officer removal under § 1442(a)(1) because "the Centers for Medicare and Medicaid Services ('CMS') and the Centers for Disease Control ('CDC') specifically compelled healthcare providers and nursing homes to respond to the COVID-19 pandemic," and therefore, Defendants were "acting under specific federal instructions/regulations." (Id. ¶ 13.) Plaintiff timely moved to remand. (See Motion to Remand ("Mot."), Dkt. 11.)

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