1 2 3 4 JS-6 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ESTATE OF RAYMOND STANLEY Case No. 2:21-cv-08548-MCS-RAO 11 MOORE, SR., et al.,

ORDER GRANTING MOTION TO

12 Plaintiffs, REMAND (ECF NO. 13) AND 13 DENYING MOTION AND v. STIPULATION AS MOOT (ECF NOS. 14 10, 19) 15 FH & HF-TORRANCE I, LLC, et al.,

16 Defendants. 17 18 19 Plaintiffs Estate of Raymond Stanley Moore, Sr., by and through Alma Moore; 20 Alma Moore; Lola Moore; Mona Moore-Sullivan; and Raymond Stanley Moore, Jr., 21 move to remand this action to the Los Angeles County Superior Court, No. 22 21STCV28234. (Mot., ECF No. 13.) Defendants FH & HF-Torrance I, LLC; Family 23 Health and Housing Foundation; and Family Health & Housing Foundation-Torrance 24 I, LLC oppose the motion, and Plaintiffs filed a reply. (Opp’n, ECF No. 14; Reply, ECF 25 No. 16.) In the interest of judicial economy, the Court has considered Defendants’ 26 opposition brief even though it is too long. C.D. Cal. R. 11-6. The Court deems the 27 motion appropriate for decision without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. 28 R. 7-15. 1 I. BACKGROUND 2 This is a wrongful death case. Plaintiffs allege Defendants operate a skilled 3 nursing facility and failed to respond appropriately to the COVID-19 pandemic, 4 resulting in the death of Raymond Stanley Moore, Sr. Plaintiffs assert six claims: 5 (1) breach of the implied warranty of habitability; (2) elder abuse and neglect, Cal. 6 Welf. & Inst. Code § 15600 et seq.; (3) negligence and negligence per se; (4) violation 7 of patient rights, Cal. Health & Safety Code § 1430(b); (5) wrongful death; and 8 (6) concealment. (See generally Compl., ECF No. 1-1.) Defendants removed the case 9 to this Court on the basis of federal-question jurisdiction. (Notice of Removal, ECF No. 10 1.) 11 II. LEGAL STANDARD 12 A defendant can remove a case from a state court to a federal court if the case 13 could have originally been brought in federal court. 28 U.S.C § 1441(a). “Upon 14 removal, the district court must determine whether it has subject matter jurisdiction and, 15 if not, it must remand.” Dahl v. Rosenfeld, 316 F.3d 1074, 1076 (9th Cir. 2003). The 16 Court “strictly construe[s] the removal statute against removal jurisdiction” and will 17 reject finding jurisdiction “if there is any doubt as to the right of removal in the first 18 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). A party may move to 19 remand a case based on lack of subject-matter jurisdiction. See 28 U.S.C. § 1447(c). 20 III. DISCUSSION 21 Defendants present three theories of federal-question jurisdiction: (1) the case 22 arises under the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 23 U.S.C. §§ 247d-6d to -6e; (2) the case presents a substantial, embedded question of 24 federal law; and (3) the federal officer removal statute, 28 U.S.C. § 1442(a)(1), confers 25 jurisdiction. (See generally Opp’n; Notice of Removal.) As this Court and dozens of 26 others have concluded in similar wrongful death cases, these jurisdictional theories lack 27 merit. Thomas v. Century Villa Inc., No. 2:21-cv-03013-MCS-KS, 2021 U.S. Dist. 28 LEXIS 110094, at *4–17 (C.D. Cal. June 10, 2021); Olaso v. Alexandria Care Ctrs., 1 LLC, No. 2:21-cv-06589-MCS-PLA, 2021 U.S. Dist. LEXIS 194463, at *3–4 (C.D. 2 Cal. Sept. 10, 2021); accord Estate of Serrano v. San Antonio Acute LLC, No. EDCV 3 21-1169 JGB (SHKx), 2021 U.S. Dist. LEXIS 136964, at *4 (C.D. Cal. July 21, 2021) 4 (“Every case in the Central District, save one, to have considered the question has 5 determined that the federal courts lack jurisdiction under either of the theories 6 presented . . . , and therefore that removal is improper and remand is required.”); see 7 Estate of Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393, 402 n.2, 413 (3d Cir. 8 2021) (collecting cases rejecting similar theories and affirming order of remand). 9 Nothing in Defendants’ brief persuades the Court to reject the overwhelming weight of 10 authorities concluding that federal courts lack subject-matter jurisdiction over cases like 11 this one. See Estate of Serrano, 2021 U.S. Dist. LEXIS 136964, at *4 (“Broad consensus 12 of this nature in the Central District is compelling.”). 13 First, the PREP Act does not completely preempt the state law claims presented 14 here. See Maglioli, 16 F.4th at 407–08 (“Here, the PREP Act creates an exclusive cause 15 of action for willful misconduct. But the estates allege only negligence, not willful 16 misconduct. The estates’ negligence claims thus do not fall within scope of the 17 exclusive federal cause of action. They are not completely preempted, so they belong 18 in state court.”); Thomas, 2021 U.S. Dist. LEXIS 110094, at *10–11 (collecting 19 authorities for the proposition that “the PREP Act does not completely preempt state 20 law claims based on non-willful conduct because it does not provide for an exclusive 21 federal cause of action for such claims” (internal quotation marks omitted)); id. at *8– 22 14 (rejecting related preemption arguments); Martinez v. Spruce Holdings, LLC, No. 23 1:21-CV-0739 AWI SAB, 2021 U.S. Dist. LEXIS 165231, at *8–9 (E.D. Cal. Aug. 31, 24 2021) (collecting cases). 25 Second, the Complaint does not raise a substantial, embedded question of federal 26 law. See Maglioli, 16 F.4th at 413 (rejecting application of Grable & Sons Metal Prods. 27 v. Darue Eng’g & Mfg., 545 U.S. 308 (2005)); Thomas, 2021 U.S. Dist. LEXIS 110094, 28 at *14–16 (same); Martinez, 2021 U.S. Dist. LEXIS 165231, at *9–10 (collecting cases 1 for the proposition that “when a plaintiff brings claims such as . . . wrongful death, elder 2 abuse, and willful misconduct based on a total failure to adequately manage dangers 3 from Covid 19[], no substantial question of federal law is presented”). 4 Third, federal officer jurisdiction is lacking. Maglioli, 16 F.4th at 406 (rejecting 5 federal officer theory as applied to private-sector workers at nursing homes); Thomas, 6 2021 U.S. Dist. LEXIS 110094, at *16–17 (“Century Villa cannot establish that federal 7 officer jurisdiction should apply just because it complied with various government 8 regulations, directives, and guidance.”); Martinez, 2021 U.S. Dist. LEXIS 165231, at 9 *8 (collecting cases for the proposition that “nursing homes implementing CDC 10 regulations relating to Covid 19 are merely complying with regulations or following the 11 law, [and] they are not acting pursuant to a federal officer’s direction for purposes of 12 [28 U.S.C. § 1442]”). 13 The Court lacks subject-matter jurisdiction over this matter. Remand is 14 appropriate. 28 U.S.C. § 1447(c). 15 The Court denies Defendants’ request for oral argument, a stay of remand, and 16 jurisdictional discovery. (Opp’n 1–2.) See C.D. Cal. R. 6-1 (“[E]very motion shall be 17 presented by written notice of motion.”); Smith v. Premiere Valet Sers., No. 2:19-cv- 18 09888-CJC-MAA, 2020 U.S. Dist. LEXIS 228465, at *42 (C.D. Cal. Aug. 4, 2020) 19 (collecting cases for the proposition that “a request for affirmative relief is not proper 20 when raised for the first time in an opposition”); C.D. Cal. R. 7-15 (“The Court may 21 dispense with oral argument on any motion . . . .”); Olaso, 2021 U.S. Dist. LEXIS 22 194463, at *4 (denying request for jurisdictional discovery where the record was 23 “sufficient for the Court to determine that federal jurisdiction is lacking”); Lawler v. 24 Cedar Ops., LLC, No. EDCV 21-01017-CJC (SHKx), 2021 U.S. Dist. LEXIS 194306, 25 at *4 n.3 (C.D. Cal. Oct. 7, 2021) (rejecting request to stay remand for failure to address 26 the factors articulated in Nken v. Holder, 556 U.S. 418 (2009), concerning stays pending 27 appeal). 28 /// 1 IV. CONCLUSION 2 The motion is granted. The Court remands the case to the Los Angeles County 3 Superior Court, No. 21STCV28234. The pending motion to dismiss (ECF No. 10) and 4 stipulation to continue the hearing on the motion to dismiss (ECF No. 19) are denied as 5 moot. The Court directs the Clerk to effect the remand and close the case. 6 7 IT IS SO ORDERED. 8

9 Dated: January 4, 2022

MARK C. SCARSI

10

UNITED STATES DISTRICT JUDGE

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