NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANCY HEARDEN; et al., No. 23-15195 23-15452 Plaintiffs-Appellees, D.C. No. v. 2:22-cv-00994-MCE-DMC

SHLOMO RECHNITZ; et al.,

MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding

Submitted August 13, 2024** San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

Defendants1 appeal the district court’s order remanding this case to state

court. The district court ruled that it lacked subject matter jurisdiction over the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Defendants consist of Brius Management Co. (now known as Pacific Healthcare Holdings); Brius, LLC (now known as Los Angeles Nursing Homes, case pursuant to Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir.

2022). Reviewing de novo jurisdictional questions, United States v. Jeremiah, 493

F.3d 1042, 1044 (9th Cir. 2007), and reviewing for abuse of discretion challenges

to the district court’s award of attorneys’ fees and costs under 28 U.S.C. § 1447(c),

Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 543, 547 (9th Cir. 2018) (citing

Moore v. Permanente Med. Grp., Inc., 981 F.2d 443, 447 (9th Cir. 1992)), we

affirm.

Plaintiffs are surviving family members of residents of Defendants’ skilled

nursing facility who contracted COVID-19 in 2020 and who later died. Plaintiffs

filed the underlying action in California state court, alleging six state-law claims: a

statutory claim for elder abuse and neglect, a negligence claim, a statutory claim

for violations of patients’ rights, a claim for violations of California Business and

Professions Code § 17200, a wrongful death claim, and a claim for fraud and

breach of fiduciary duty. Defendants removed the case to federal district court, but

that court remanded the action to state court. The district court also awarded

attorneys’ fees and costs to Plaintiffs. Defendants’ timely appeal of both issues

followed.

1. We rejected Defendants’ federal question and federal officer jurisdiction

LLC); Shlomo Rechnitz; Windsor Redding Care Center, LLC; Lee Samson; and S&F Management Company.

2 arguments in Saldana, 27 F.4th at 688–89. Although Defendants note that

Congress gave the United States District Court for the District of Columbia the

authority to adjudicate willful-misconduct claims, Public Readiness and

Emergency Preparedness Act (“PREP Act”), 42 U.S.C. § 247d-6d(c) to (e)(1),

Defendants did not seek a transfer to that court. Instead, Defendants refer to that

PREP Act provision simply as one of several reasons why, in their view, Saldana

was wrongly decided. As a three-judge panel, we are bound by Saldana. See In re

Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir. 2000) (per

curiam) (“A three judge panel of this court cannot overrule a prior decision of this

court.” (citing Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir.1993))).

Accordingly, we affirm in No. 23-15195.

2. The district court did not abuse its discretion by awarding attorneys’ fees

and costs to Plaintiffs. Although the court stated incorrectly that it had “broad

discretion to award costs and fees whenever it finds that removal was wrong as a

matter of law,” the court in fact applied the correct standard. See United States v.

Bonds, 608 F.3d 495, 504 (9th Cir. 2010) (holding that the district court did not

abuse its discretion despite misstatement of the law because “[a]ny such

misstatement had no bearing on the court’s ruling” given that the court “applied the

correct standard”). The court expressly considered whether Defendants “lacked an

objectively reasonable basis for seeking removal.” Martin v. Franklin Cap. Corp.,

3 546 U.S. 132, 141 (2005); see also Lussier v. Dollar Tree Stores, Inc., 518 F.3d

1062, 1066–67 (9th Cir. 2008) (holding that, in applying Martin, courts should ask

whether “the relevant case law clearly foreclosed the defendant’s basis for

removal”). The district court observed that Defendants removed the case “despite

binding and on-point Ninth Circuit authority disposing of the same asserted bases

for jurisdiction in comparable cases” and permissibly concluded that Defendants

therefore lacked “an objectively reasonable basis to contend that Saldana does not

control.” Accordingly, we affirm in No. 23-15452.

AFFIRMED.

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