1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DOMENIC ROMEO, Individually and Case No. CV 21-02918-AB (RAOx) as heir and Successor in Interest to 11 ANNA ROMEO, Deceased, ORDER GRANTING MOTION FOR

REMAND

12 Plaintiff, 14

CANOGA HEALTHCARE, INC.,

d/b/a WEST HILLS HEALTH AND 15

REHAB CENTER,

16 Defendant. 17 18 Before the Court is a Motion for Remand (“Motion,” Dkt. No. 16) filed by 19 Plaintiff Domenic Romeo (“Plaintiff”). Defendant Canoga Healthcare, Inc. 20 (“Defendant”) filed an opposition. Plaintiff did not file a reply. For the following 21 reasons, the Motion is GRANTED. 22 I. BACKGROUND 23 Plaintiff’s Complaint (Dkt. No. 14-1)1 alleges as follows. In 2015, Anna Romeo 24

25 1 A defendant may remove a case by filing a notice of removal “together with a copy 26 of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a) (emphasis added). Here, Defendant did not file the 27 Complaint “together with” the notice of removal as required by § 1446(a), but instead 28 included it as an unnamed attachment to a standalone request for judicial notice with 1 was admitted to the Defendant’s facility West Hills Care Center (“West Hills”) for 2 rehabilitation and continuous care following insertion of a pacemaker to stabilize her 3 heart muscles and due to her general lack of mobility arising from being wheelchair- 4 bound. In April 2020, her brother Domenic Romeo, Plaintiff, was informed by West 5 Hills that Anna Romeo was displaying COVID-19 symptoms, and that she would be 6 transferred to the local hospital for treatment. On May 7, 2020, West Hills informed 7 Mr. Romeo that Anna Romeo had fended off the illness, when in reality, she would 8 succumb to the illness later that same day. Plaintiff alleged that Mrs. Romeo’s death 9 was due to the inactions of Canoga and West Hills, specifically that due to the failure 10 of West Hills to properly implement infection control policies, Mrs. Romeo contracted 11 the coronavirus and died shortly thereafter. Based on these allegations, Plaintiff filed 12 his Complaint in the Superior Court of the State of California on February 24, 2021, 13 asserting claims for elder abuse, negligence, and wrongful death. 14 On April 26, 2021, Defendants removed this case to Federal Court, asserting 15 subject matter jurisdiction on three grounds: (1) the federal officer statute 28 U.S.C. § 16 1442(a)(1), given the CDC’s ongoing directives to respond to and control the COVID- 17 19 pandemic; (2) complete preemption pursuant to the PREP Act, 42 U.S.C. §§ 247d- 18 6d, 247d-6e; and (3) the Grable doctrine. See Notice of Removal (Dkt. No. 1).2 19 Plaintiff now moves for remand, arguing that the Court lacks subject matter 20 21

22 multiple other attachments filed more than three weeks after the case was removed. The Court admonishes Defendant for not complying with this important requirement 23 of § 1446(a) that permits the Court to quickly review the complaint to check its 24 jurisdiction. 2 Defendant subsequently filed one “Request for Removal” (Dkt. No. 6), two 25 additional Notices of Removal, see Dkt. Nos. 11, 12, and a Request for Judicial Notice 26 (Dkt. No. 14). The action was removed by Dkt. No. 1, and Defendant has not explained why they filed these subsequent removal documents. Because Dkt. Nos. 6, 27 11, and 12 are improper pleadings, they are STRICKEN. Because Dkt. No. 14 28 includes the Complaint, the Court will not strike it. 1 jurisdiction. Other courts in the Central District of California have already addressed 2 these questions in the context of state law tort suits arising out of COVID-19 deaths in 3 care facilities. See, e.g., Martin v. Serrano Post Acute LLC, No. CV 20-5937 DSF 4 (SKX), 2020 WL 5422949, at *1 (C.D. Cal. Sept. 10, 2020); Jackie Saldana v. 5 Glenhaven Healthcare LLC, No. CV-205631-FMO-MAAX, 2020 WL 6713995, at *1 6 (C.D. Cal. Oct. 14, 2020); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV- 7 09746-SB-PVC, 2021 WL 911951, at *1 (C.D. Cal. Mar. 1, 2021); Smith v. Colonial 8 Care Ctr., Inc., No. 2:21-CV-00494-RGK-PD, 2021 WL 1087284, at *1 (C.D. Cal. 9 Mar. 19, 2021); Stone v. Long Beach Healthcare Ctr., LLC, No. CV 21-326- 10 JFW(PVCX), 2021 WL 1163572, at *1 (C.D. Cal. Mar. 26, 2021); Winn v. California 11 Post Acute LLC, No. CV2102854PAMARX, 2021 WL 1292507, at *1 (C.D. Cal. Apr. 12 6, 2021). In each of these cases, the Court found that it lacked subject matter 13 jurisdiction and remanded the case to state court. Notably, Defendant has not pointed 14 to any Court orders from this or any other district finding federal subject matter 15 jurisdiction over COVID-19 related state law claims on the grounds asserted here. 16 Plaintiff notes, and the Court also found, a single case from this district finding 17 complete preemption under the PREP Act and denying remand. See Garcia v. 18 Welltower OpCo Grp. LLC, No. SACV2002250JVSKESX, 2021 WL 492581, at *1 19 (C.D. Cal. Feb. 10, 2021). However, the Court explains below why it declines to 20 follow the reasoning of Garcia. The Court finds the weight of opinion of its sister 21 courts persuasive, and accordingly this Order relies on them. 22

II. LEGAL STANDARD

23 A defendant may remove a civil action filed in state court to federal district 24 court when the federal court has original jurisdiction over the action. 28 U.S.C. 25 §1441(a). “The burden of establishing jurisdiction falls on the party invoking the 26 removal statute, which is strictly construed against removal.” Sullivan v. First 27 Affiliated Sec., Inc., 813 F.2d 1368, 1371 (9th Cir. 1987) (internal citations omitted); 28 1 see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “The ‘strong 2 presumption’ against removal jurisdiction means that the defendant always 3 has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980. F.2d 4 564, 566 (9th Cir. 1992). If any doubt exists as to the right of removal, federal 5 jurisdiction must be rejected. Id. at 566–67; see also Hunter v. Philip Morris USA, 6 582 F.3d 1039, 1042 (9th Cir. 2009) (citing Id. at 566) (“[T]he court resolves all 7 ambiguity in favor of remand to state court.”). 8 III. DISCUSSION 9 Defendants argue that this Court has subject matter jurisdiction on three 10 independent grounds: (a) federal officer removal; (b) complete preemption under the 11 PREP Act, and (c) embedded question of federal law under the Grable doctrine. 12 Plaintiff responds that none of these grounds applies here. 13 A. Federal Officer Removal 14 Federal officer removal is available under 28 U.S.C. § 1442(a) if “(a) [the 15 removing party] is a ‘person’ within the meaning of the statute; (b) there is a causal 16 nexus between its actions, taken pursuant to a federal officer’s directions, and 17 plaintiff’s claims; and (c) it can assert a ‘colorable federal defense.’” Fidelitad, Inc. v. 18 Insitu, Inc., 904 F.3d 1095, 1099 (9th Cir. 2018). This is an exception to the well- 19 pleaded complaint rule, which typically requires a federal question to be pleaded in 20 the complaint in order for the court to have subject matter jurisdiction based on a 21 federal question. See N.G. v. Downey Reg’l Med. Ctr., 140 F.Supp.3d 1036, 1039 22 (C.D. Cal. 2015). 23 There is no dispute that the removing parties are persons for purposes of the 24 statute. The next inquiry is whether Defendants acted “pursuant to a federal officer’s 25 directions,” whether there is a “causal nexus” between Defendants’ actions and 26 Plaintiff’s claims, and whether Defendants can assert a colorable federal defense. 27 Defendants point to government regulations and public directives regarding the 28 response to the COVID-19 pandemic. The court in Fidelitad noted that, “[f]or a 1 private entity to be acting under a federal officer, the private entity must be involved 2 in an effort to assist, or to help carry out, the duties or tasks of the federal superior.” 3 Fidelitad, Inc., 904 F.3d at 1095. Further, a “private firm’s compliance (or 4 noncompliance) with federal laws, rules, and regulations does not by itself fall within 5 the scope of the statutory phrase ‘acting under’ a federal ‘official.’ And that is so even 6 if the regulation is highly detailed and even if the private firm’s activities are highly 7 supervised and monitored.” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 8 153 (2007). 9 Defendants argue that the government regulations and public directives 10 implemented during the COVID-19 pandemic are tantamount to directions from a 11 federal officer. In Saldana v. Glenhaven Healthcare LLC, 20-cv-5631, 2020 WL 12 6713995, at *3 (C.D. Cal. Oct. 14, 2020), defendants argued that “in taking steps to 13 prevent the spread of COVID-19, [they] did so in compliance with CDC and CMS 14 directives, which were aimed at helping achieve the federal government’s efforts at 15 stopping or limiting the spread of COVID-19.” The court found that such general 16 regulations and public directives were “insufficient” to confer jurisdiction under the 17 federal officer removal statute. Id. Similarly, this Court is not persuaded that the 18 CDC’s various and ongoing guidance in response to the pandemic means that 19 Defendant was “acting under” a federal official. “[M]erely being subject to federal 20 regulations or performing some functions that a government agency controls is not 21 enough to transform a private entity into a federal officer.” Panther Brands, LLC, v. 22 Indy Racing League, LLC, 927 F.3d 586, 590 (7th Cir. 2016). 23 Furthermore, there is no causal link between Defendants’ actions and Plaintiff’s 24 claims. Rather, Plaintiffs claims are directed towards the inactions of Defendant. This 25 distinction serves to weaken Defendants’ federal officer argument. 26 This Court finds that Defendant has not established that removal was proper 27 based on the federal officer removal statute. 28 1 B. Complete Preemption 2 Defendants also fail to raise a “colorable federal defense” under the theory of 3 complete preemption. Under the doctrine of complete preemption, a state law claim 4 can be considered to arise under federal law if “Congress intended the scope of federal 5 law to be so broad as to entirely replace any state-law claim.” Retail Prop. Tr. v. 6 United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 2014) 7 (quoting Dennis v. Hart, 724 F.3d 1249, 1254 (9th Cir. 2013)). Complete preemption 8 that confers federal question jurisdiction is very rare. See City of Oakland v. BP PLC, 9 969 F.3d 895 (9th Cir. 2020) (“The Supreme Court has identified only three statutes 10 that meet this criteria [for complete preemption].”). 11 In the Ninth Circuit, “complete preemption for purposes of federal jurisdiction 12 under § 1331 exists when Congress: (1) intended to displace a state-law cause of 13 action, and (2) provided a substitute cause of action.” City of Oakland v. BP PLC, 969 14 F.3d 895, 905–06 (9th Cir. 2020) (citing Hansen v. Grp. Health Coop., 902 F.3d 1051, 15 1057 (9th Cir. 2018)). The PREP Act does not satisfy the Ninth Circuit’s two-part 16 complete preemption test. See, e.g., Stone v. Long Beach Healthcare Ctr., LLC, CV 17 21-326-JFW (PVCx), 2021 WL 1163572, at *5–7 (C.D. Cal. Mar. 26, 2021) 18 (collecting cases and concluding PREP Act does not satisfy Ninth Circuit complete 19 preemption test); Est. of McCalebb v. AG Lynwood, LLC, No. 2:20-CV-09746-SB- 20 PVC, 2021 WL 911951, at *3-*6 (C.D. Cal. Mar. 1, 2021) (finding no complete 21 preemption). The Court acknowledges that the Garcia Court did find complete 22 preemption. But the Garcia court deferred to an opinion of the HHS Secretary3, and 23 did not address the Ninth Circuit’s two-part test, so it is not persuasive. 24 If Defendants believe that some or all of Plaintiff’s state law claims are barred 25

26 3 Defendant filed that same opinion in the Declaration of Barbara M. Reardon (Dkt. 27 No. 29) after briefing on the motion closed. But, Defendant has not explained why the 28 HHS Secretary’s opinion should be accorded deference. 1 by the PREP Act, filing a demurrer in state court is an option available to Defendants. 2 If the state court dismisses the state law claims, Plaintiff could then decide whether 3 they wish to file claims under the PREP Act in the U.S. District Court for the District 4 of Columbia, the court with exclusive jurisdiction over such claims. See 42 U.S.C. § 5 247d-6d(e)(1). 6 The Court joins the weight of district court opinion that the PREP Act does not 7 completely preempt the claims herein, and thus provides no basis for removal of this 8 action. 9 C. Embedded Federal Question 10 Defendants also argue that the Grable doctrine applies. Under the Grable 11 doctrine, in order for a state law claim to provide federal question jurisdiction, the 12 “state law claim [must] necessarily raise a stated federal issue, actually disputed and 13 substantial, which a federal forum may entertain without disturbing any 14 congressionally approved balance of federal and state judicial responsibilities.” 15 Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 16 (2005). The Supreme Court has stated “federal jurisdiction over a state law claim will 17 lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and 18 (4) capable of resolution in federal court without disrupting the federal-state balance 19 approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). “[I]t is not 20 enough that the federal issue be significant to the particular parties in the immediate 21 suit; that will always be true when the state claims ‘necessarily raise[s]’ a disputed 22 federal issue, as Grable separately requires. The substantiality inquiry under Grable 23 looks instead to the importance of the issue to the federal system as a whole.” Gunn, 24 568 U.S. at 260. 25 Plaintiff points out that the Grable doctrine relies on the claims made by the 26 plaintiff, not the defenses raised by the defendant. Here, Plaintiff has raised a standard 27 medical negligence and elder abuse claim arising under California law and that does 28 not necessarily raise a federal issue. Defendants are the only parties that raise a federal issue, for example in asserting their immunity defense under the PREP Act. ; Accordingly, the court does not have subject matter jurisdiction based on an 4 embedded federal question under Grable. Accord Winn vy. California Post Acute LLC, ° No. CV2102854PAMARX, 2021 WL 1292507, at *5 (C.D. Cal. Apr. 6, 2021). 6 IV. CONCLUSION For the foregoing reasons, the Court finds that Defendant has not established 8 that this Court has subject matter jurisdiction over Plaintiff's claims. The Court 9 therefore GRANTS Plaintiff's Motion for Remand and ORDERS the Clerk of Court 10 to remand this matter to the Superior Court of California, County of Los Angeles. i The Scheduling Conference set for August 6, 2021 is VACATED. "2 IT IS SO ORDERED. \, 13 de 6 Dated: August 05, 2021 15 HONORABLE ANDRE BIROTTE JR. 16 UNITED STATES DISTRICT COURT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8.