Case 1:20-cv-04042-PKC-PK Document 20 Filed 02/02/21 Page 1 of 33 PageID #: 1607
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`MEMORANDUM & ORDER
`20-CV-4042 (PKC) (PK)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------x
`MARC DUPERVIL, as the Proposed
`Administrator of the Estate of FREDERIC
`DUPERVIL, Deceased,
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`
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`
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`Plaintiff,
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` against -
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` -
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`ALLIANCE HEALTH OPERATIONS, LCC,
`d/b/a LINDEN CENTER FOR NURSING
`AND REHABILITATION, and JOHN AND
`JANE DOES 1–10,
`
`
`Defendants.
`-------------------------------------------------------x
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`PAMELA K. CHEN, United States District Judge:
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`This case arises from the death of Plaintiff’s father, who passed away after contracting
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`COVID-19 while residing at a nursing home in Brooklyn, New York. Plaintiff filed suit in state
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`court against the nursing home and unnamed health care professionals working at the facility,
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`asserting various state-law claims for negligence, gross negligence, wrongful death, malpractice,
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`and violation of New York Public Health Law. Defendants removed the matter to this Court on
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`two alleged, independent grounds: (1) that there is federal-question jurisdiction; and (2) that
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`Defendants are federal officers entitled to a federal forum. Plaintiff presently moves to remand.
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`Because this case presents no question of federal law that confers jurisdiction on the Court, and
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`because Defendants cannot be considered federal officers, the Court grants the motion to remand.
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`I.
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`Case Background
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`BACKGROUND
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`Plaintiff is the proposed administrator of his father’s estate. (Complaint, Dkt. 1-1, ¶¶ 1–
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`2.) Plaintiff’s father, a resident of the State of New York, lived at the Linden Center for Nursing
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`and Rehabilitation (“Linden Center”) in Brooklyn. (Id. ¶¶ 4–5.) While residing at Linden Center,
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`Plaintiff’s father contracted COVID-19, and died as a result on April 1, 2020. (Id. ¶¶ 33–34.)
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`Following his father’s death, Plaintiff filed this suit in the Supreme Court of New York,
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`Kings County, on May 26, 2020. The crux of Plaintiff’s complaint is that the Linden Center and
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`health care professionals working at the facility (collectively, “Defendants”) failed to take
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`precautions to prevent the spread of COVID-19, which ultimately caused the death of Plaintiff’s
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`father. (Id. ¶ 35.) In particular, Defendants allegedly “failed to appropriate[ly] separate residents
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`in accordance with local, state and federal guidance”; “failed to enforce social distancing among
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`residents”; “failed to enforce social distancing among staff”; “failed to cancel all group activities
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`and communal dining”; “failed to timely restrict all visitors”; “failed to ensure appropriate staffing
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`levels”; “failed to ensure all residence [sic] wear a cloth face covering”; “failed to ensure all health
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`care professionals were provided a facemask or cloth covering while in the facility”; “failed to
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`ensure all health care professionals wore a facemask or cloth covering while in the facility”; “failed
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`to adequately screen volunteers and non-essential healthcare personnel prior to allowing their
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`entrance into the facility”; “failed to actively screen everyone entering the building for fever and
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`symptoms of COVID-19”; and “failed to monitor local, state and federal health guidance on the
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`coronavirus for maintaining the safety of its residents.” (Id. ¶¶ 110–21; see also id. ¶¶ 134–45,
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`158–69.) The Complaint alleges various state-law claims of negligence, gross negligence,
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`wrongful death, medical and nursing malpractice, and violation of New York Public Health Law.
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`(Id. ¶¶ 57–197.)
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`On August 31, 2020, Defendants filed a Notice of Removal, asserting two independent
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`grounds for removal. (See Notice of Removal, Dkt. 1.) First, Defendants argue that the case is
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`removable under 28 U.S.C. § 1441(a) because it is one “arising under” federal law within the
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`meaning of 28 U.S.C. § 1331. (Id. ¶ 9.) Specifically, according to Defendants, although Plaintiff’s
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`claims sound in state tort law, the claims are completely preempted by, or necessarily and
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`significantly implicate, the Public Readiness and Emergency Preparedness (“PREP”) Act, 42
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`U.S.C. § 247d-6d. (Id. ¶¶ 14–16, 20–24.) Second, and alternatively, Defendants argue that the
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`case is removable under 28 U.S.C. § 1442(a)(1) because Defendants are federal officers or the
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`equivalent. (Id. ¶ 12.) Defendants assert that they qualify for federal-officer removal under
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`§ 1442(a)(1) because “the Centers for Medicare and Medicaid Services (‘CMS’) and the Centers
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`for Disease Control (‘CDC’) specifically compelled healthcare providers and nursing homes to
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`respond to the COVID-19 pandemic,” and therefore, Defendants were “acting under specific
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`federal instructions/regulations.” (Id. ¶ 13.) Plaintiff timely moved to remand. (See Motion to
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`Remand (“Mot.”), Dkt. 11.)
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`II.
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`PREP Act
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`The PREP Act generally provides that
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`a covered person shall be immune from suit and liability under Federal and State
`law 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
`countermeasure if a declaration [by the Secretary of Health and Human Services]
`has been issued with respect to such countermeasure.
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`42 U.S.C. § 247d-6d(a)(1). In March 2020, the Secretary of Health and Human Services (“the
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`Secretary”) issued a declaration under the PREP Act regarding the COVID-19 pandemic. 85 Fed.
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`Reg. 15,198 (Mar. 17, 2020). The Declaration has since been amended five times. See First
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`Amended Declaration, 85 Fed. Reg. 21,012 (Apr. 15, 2020); Second Amended Declaration, 85
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`Fed. Reg. 35,100 (June 8, 2020); Third Amended Declaration, 85 Fed. Reg. 52,136 (Aug. 24,
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`2020); Fourth Amended Declaration, 85 Fed. Reg. 79,190 (Dec. 9, 2020); Fifth Amended
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`Declaration, 86 Fed. Reg. 7,872 (Feb. 2, 2021).
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`A “covered countermeasure” under the PREP Act is defined as “a qualified pandemic or
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`epidemic product”; “a security countermeasure”; a “drug . . . , biological product . . . , or
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`device . . . that is authorized for emergency use in accordance with section 564, 564A, or 564B of
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`the Federal Food, Drug, and Cosmetic Act [i.e., FDCA]”; or “a respiratory protective device that
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`is approved by the National Institute for Occupational Safety and Health [i.e., NIOSH], . . . and
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`that the Secretary determines to be a priority for use during a public health emergency declared
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`under section 247d of this title.” 42 U.S.C. § 247d-6d(i)(1). The statute in turn defines both a
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`“qualified pandemic or epidemic product” and a “security countermeasure.” A qualified pandemic
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`or epidemic product is a “drug,” “biological product,” or “device” that is
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`(i) a product manufactured, used, designed, developed, modified, licensed, or
`procured (I) to diagnose, mitigate, prevent, treat, or cure a pandemic or epidemic;
`or (II) to limit the harm such pandemic or epidemic might otherwise cause;
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`(ii) a product manufactured, used, designed, developed, modified, licensed, or
`procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening
`disease or condition caused by a product described in clause (i); or
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`(iii) a product or technology intended to enhance the use or effect of a drug,
`biological product, or device described in clause (i) or (ii)[.]
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`Id. § 247d-6d(i)(7)(A). Such drug, biological product, or device must also be approved or cleared
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`under the FDCA, licensed under the Public Health Service Act (“PHSA”), subject to an exemption,
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`or authorized for emergency use. Id. § 247d-6d(i)(7)(B). A security countermeasure is a “drug,”
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`“biological product,” or “device” that
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`(i)(I) the Secretary determines to be a priority . . . to diagnose, mitigate, prevent, or
`treat harm from any biological, chemical, radiological, or nuclear agent identified
`as a material threat [by the Secretary of Homeland Security], or to diagnose,
`mitigate, prevent, or treat harm from a condition that may result in adverse health
`consequences or death and may be caused by administering a drug, biological
`product, or device against such an agent; (II) the Secretary determines . . . to be a
`necessary countermeasure; and (III) (aa) is approved or cleared under [the FDCA]
`or licensed under [the PHSA]; or (bb) is a countermeasure for which the Secretary
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`determines that sufficient and satisfactory clinical experience or research data
`(including data, if available, from pre-clinical and clinical trials) support a
`reasonable conclusion that the countermeasure will qualify for approval or
`licensing within 10 years after the date of a determination [that procurement of the
`countermeasure is appropriate]; or
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`(ii) is authorized for emergency use under section 564 of the [FDCA].
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`Id. § 247d-6b(c)(1)(B); see also id. § 247d-6d(i)(1)(B). A “biological product” is “a virus,
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`therapeutic serum, toxin, antitoxin, vaccine, blood, blood component or derivative, allergenic
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`product, protein, or analogous product, or arsphenamine or derivative of arsphenamine (or any
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`other trivalent organic arsenic compound), applicable to the prevention, treatment, or cure of a
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`disease or condition of human beings.” Id. § 262(i); see also id. §§ 247d-6b(c)(1)(B), 247d-
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`6d(i)(7). The term “device,” which is adopted from the FDCA, means “an instrument, apparatus,
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`implement, machine, contrivance, implant, in vitro reagent, or other similar or related article,
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`including any component, part, or accessory” that is
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`(1) recognized in the official National Formulary, or the United States
`Pharmacopeia, or any supplement to them, (2) intended for use in the diagnosis of
`disease or other conditions, or in the cure, mitigation, treatment, or prevention of
`disease, in man or other animals, or (3) intended to affect the structure or any
`function of the body of man or other animals, and
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`which does not achieve its primary intended purposes through chemical action
`within or on the body of man or other animals and which is not dependent upon
`being metabolized for the achievement of its primary intended purposes.
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`21 U.S.C. § 321(h); see also 42 U.S.C. §§ 247d-6b(c)(1)(B), 247d-6d(i)(7).
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`In accordance with the various terms of the PREP Act, the Secretary’s March 2020
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`Declaration under the Act specifically defines a “covered countermeasure” as
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`any antiviral, any other drug, any biologic, any diagnostic, any other device, or any
`vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the
`transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in
`the administration of any such product, and all components and constituent
`materials of any such product.
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`Declaration, 85 Fed. Reg. at 15,202. This definition, however, has been expanded several times
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`since March 2020. See First Amended Declaration, 85 Fed. Reg. at 21,013–14 (amending the
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`definition of covered countermeasure, in accordance with the Coronavirus Aid, Relief, and
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`Economic Security (“CARES”) Act, to include “any respiratory protective device” approved by
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`NIOSH); Second Amended Declaration, 85 Fed. Reg. at 35,102 (amending the definition of
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`covered countermeasure to explicitly include products that “limit the harm that COVID-
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`19 . . . might otherwise cause”). Recently, in December 2020, the definition of covered
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`countermeasure was amended “to make explicit that [it] covers all qualified pandemic and
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`epidemic products under the PREP Act.” Fourth Amended Declaration, 85 Fed. Reg. at 79,193.
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`Under the December 2020 amended Declaration, a covered countermeasure is
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`(a) Any antiviral, any drug, any biologic, any diagnostic, any other device, any
`respiratory protective device, or any vaccine manufactured, used, designed,
`developed, modified, licensed, or procured: (i) [t]o diagnose, mitigate, prevent,
`treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating
`therefrom; or (ii) to limit the harm that COVID-19, or the transmission of SARS-
`CoV-2 or a virus mutating therefrom, might otherwise cause;
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`(b) a product manufactured, used, designed, developed, modified, licensed, or
`procured to diagnose, mitigate, prevent, treat, or cure a serious or life-threatening
`disease or condition caused by a product described in paragraph (a) above;
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`(c) a product or technology intended to enhance the use or effect of a product
`described in paragraph (a) or (b) above; or
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`(d) any device used in the administration of any such product, and all components
`and constituent materials of any such product.
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`Id. at 79,196. Yet, the Secretary has consistently made clear that “[t]o be a Covered
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`Countermeasure under the Declaration, a product must also meet [the] definition of ‘Covered
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`Countermeasure’” as set forth in 42 U.S.C. § 247d-6d(i)(1), discussed above. Id.; see also
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`Declaration, 85 Fed. Reg. at 15,202; First Amended Declaration, 85 Fed. Reg. at 21,014; Second
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`Amended Declaration, 85 Fed. Reg. at 35,102.
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`Given that liability immunity under the PREP Act applies only to claims for loss “caused
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`by, arising out of, relating to, or resulting from the administration to or use by an individual of a
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`covered countermeasure,” 42 U.S.C. § 247d-6d(a)(1), the meaning of the term “administration” is
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`also important. “The PREP Act does not explicitly define the term ‘administration’ but does assign
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`the Secretary the responsibility to provide relevant conditions in the Declaration.” Declaration, 85
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`Fed. Reg. at 15,200; see also 42 U.S.C. § 247d-6d(b)(1). The Secretary’s March 2020 Declaration
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`accordingly provides that “administration” of covered countermeasures “means physical provision
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`of the countermeasures to recipients, or activities and decisions directly relating to public and
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`private delivery, distribution and dispensing of the countermeasures to recipients, management
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`and operation of countermeasure programs, or management and operation of locations for purpose
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`of distributing and dispensing countermeasures.” Declaration, 85 Fed. Reg. at 15,202. The
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`Declaration further explains in the preamble:
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`The definition of “administration” extends only to physical provision of a
`countermeasure to a recipient, such as vaccination or handing drugs to patients, and
`to activities related to management and operation of programs and locations for
`providing countermeasures to recipients, such as decisions and actions involving
`security and queuing, but only insofar as those activities directly relate to the
`countermeasure activities. Claims for which Covered Persons are provided
`immunity under the Act are losses caused by, arising out of, relating to, or resulting
`from the administration to or use by an individual of a Covered Countermeasure
`consistent with the terms of a Declaration issued under the Act. Under the
`definition, these liability claims are precluded if they allege an injury caused by a
`countermeasure, or if the claims are due to manufacture, delivery, distribution,
`dispensing, or management and operation of countermeasure programs at
`distribution and dispensing sites.
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`Thus, it is the Secretary’s interpretation that, when a Declaration is in effect, the
`Act precludes, for example, liability claims alleging negligence by a manufacturer
`in creating a vaccine, or negligence by a health care provider in prescribing the
`wrong dose, absent willful misconduct. Likewise, the Act precludes a liability
`claim relating to the management and operation of a countermeasure distribution
`program or site, such as a slip-and-fall injury or vehicle collision by a recipient
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`receiving a countermeasure at a retail store serving as an administration or
`dispensing location that alleges, for example, lax security or chaotic crowd control.
`However, a liability claim alleging an injury occurring at the site that was not
`directly related to the countermeasure activities is not covered, such as a slip and
`fall with no direct connection to the countermeasure’s administration or use. In
`each case, whether immunity is applicable will depend on the particular facts and
`circumstances.
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`Id. at 15,200.
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`In December 2020, the Secretary amended the Declaration “to make explicit that there can
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`be situations where not administering a covered countermeasure to a particular individual can fall
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`within the PREP Act” and the liability protections it affords. Fourth Amended Declaration, 85
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`Fed. Reg. at 79,194. Accordingly, “[w]here there are limited Covered Countermeasures, not
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`administering a Covered Countermeasure to one individual in order to administer it to another
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`individual can constitute ‘relating to . . . the administration to . . . an individual’ under [the PREP
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`Act].” Id. at 79,197. In other words, “[p]rioritization or purposeful allocation of a Covered
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`Countermeasure, particularly if done in accordance with a public health authority’s directive, can
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`fall within the PREP Act” and its liability protections. Id. The Fourth Amended Declaration
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`specifically contemplates a situation where there is a limited number of COVID-19 vaccines and
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`a covered person under the Act chooses not to administer vaccines to those in less vulnerable
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`populations so that those in more vulnerable populations may be vaccinated. See id.
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`A “covered person” under the Act includes:
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`(A) the United States; or (B) a person or entity that is (i) a manufacturer of [a
`covered] countermeasure; (ii) a distributor of such countermeasure; (iii) a program
`planner of such countermeasure; (iv) a qualified person who prescribed,
`administered, or dispensed such countermeasure; or (v) an official, agent, or
`employee of a person or entity described in clauses (i), (ii), (iii), or (iv).
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`42 U.S.C. § 247d-6d(i)(2). The term “person” is defined broadly and “includes an individual,
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`partnership, corporation, association, entity, or public or private corporation, including a Federal,
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`State, or local government agency or department.” Id. § 247d-6d(i)(5). Additionally, the term
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`“program planner” means
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`a State or local government, including an Indian tribe, a person employed by the
`State or local government, or other person who supervised or administered a
`program with respect to the administration, dispensing, distribution, provision, or
`use of a security countermeasure or a qualified pandemic or epidemic product,
`including a person who has established requirements, provided policy guidance, or
`supplied technical or scientific advice or assistance or provides a facility to
`administer or use a covered countermeasure in accordance with a declaration
`[issued by the Secretary].
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`Id. § 247d-6d(i)(6). Neither the text of the statute nor the Secretary’s Declaration expressly
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`includes nursing homes within the definition of “covered person.” However, the Fourth Amended
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`Declaration makes clear that it “must be construed in accordance with the Advisory Opinions of
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`the Office of the General Counsel [of Health and Human Services (“HHS”)] (Advisory Opinions),”
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`and the Declaration expressly incorporates such Advisory Opinions. Fourth Amended
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`Declaration, 85 Fed. Reg. at 79,194–95. One of these Advisory Opinions provides that
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`any individual or organization can potentially be a program planner and receive
`PREP Act coverage. So for example, private businesses, public and private
`transportation providers, public and private schools, and religious organizations are
`all eligible for PREP Act coverage when they act in accordance with the PREP Act
`and the Declaration.
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`(Advisory Opinion 20-04, Dkt. 16, at 3.) Moreover, HHS’s Office of the General Counsel has
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`issued at least one opinion letter in response to a specific inquiry that concludes that “senior living
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`communities are ‘covered persons’ under the PREP Act when they provide a facility to administer
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`or use a covered countermeasure in accordance with the Secretary’s March 10, 2020 Declaration
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`under the PREP Act.” (Letter from Robert P. Charrow, General Counsel, HHS, to Thomas Baker,
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`Foley Hoag LLP (Aug. 14, 2020), Dkt. 13-9, at 1.) Yet, this opinion letter plainly states: “[This
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`letter] is not a final agency action or a final order. Nor does it bind HHS or the federal courts. It
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`does not have the force or effect of law.” (Id. at 2.)
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`When the PREP Act applies, it provides broad immunity “from suit and liability under
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`Federal and State law,” 42 U.S.C. § 247d-6d(a)(1), and the remedy available to an injured plaintiff
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`is an administrative “Covered Countermeasure Process Fund” (“Process Fund”), administered by
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`the Secretary, that provides “timely, uniform, and adequate compensation to eligible individuals
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`for covered injuries directly caused by the administration or use of a covered countermeasure,” see
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`id. §§ 247d-6e(a), 247d-6e(b)(1). “No court of the United States, or of any State, shall have subject
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`matter jurisdiction to review, whether by mandamus or otherwise, any action by the Secretary” in
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`administering the Process Fund, id. § 247d-6e(b)(5)(C), and compensation through the Process
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`Fund “shall be exclusive of any other civil action or proceeding for any claim or suit this section
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`encompasses,” id. § 247d-6e(d)(4). The only exception is if there is “death or serious physical
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`injury proximately caused by willful misconduct,” id. § 247d-6d(d)(1), in which case an action
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`may “be filed and maintained only in the United States District Court for the District of Columbia,”
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`id. § 247d-6d(e)(1). Even so, there is an administrative exhaustion requirement before a plaintiff
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`may bring a suit for injury proximately caused by willful misconduct, id. § 247d-6e(d)(1), and the
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`plaintiff may instead elect to accept compensation from the Process Fund, if the Secretary
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`determines that the plaintiff qualifies, id. § 247d-6e(d)(5).
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`The PREP Act also includes a provision expressly preempting state laws that conflict with
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`the terms of the Act:
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`During the effective period of a declaration [by the Secretary], or at any time with
`respect to conduct undertaken in accordance with such declaration, no State or
`political subdivision of a State may establish, enforce, or continue in effect with
`respect to a covered countermeasure any provision of law or legal requirement
`that—
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`(A) is different from, or is in conflict with, any requirement applicable under this
`section; and
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`(B) relates to the design, development, clinical testing or investigation, formulation,
`manufacture, distribution, sale, donation, purchase, marketing, promotion,
`packaging, labeling, licensing, use, any other aspect of safety or efficacy, or the
`prescribing, dispensing, or administration by qualified persons of the covered
`countermeasure, or to any matter included in a requirement applicable to the
`covered countermeasure under this section or any other provision of this chapter,
`or under the [FDCA].
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`Id. § 247d-6d(b)(8). Furthermore, the Secretary’s Fourth Amended Declaration states that “there
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`are substantial federal legal and policy issues, and substantial federal legal and policy interests
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`within the meaning of Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mf’g, 545 U.S. 308
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`(2005), in having a uniform interpretation of the PREP Act.” Fourth Amended Declaration, 85
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`Fed. Reg. at 79,197. Even more recently, HHS’s Office of the General Counsel issued another
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`Advisory Opinion opining that the PREP Act “is a ‘complete preemption’ statute” and that the
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`Secretary’s determination that the Act implicates a “substantial” federal question “provides the
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`underlying basis for invoking the Grable doctrine.” (See Advisory Opinion 21-01, Dkt. 17-1.)
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`In sum, the PREP Act—with one limited exception for “willful misconduct”—provides
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`covered persons with immunity from suit for all claims of loss caused by, arising out of, relating
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`to, or resulting from the administration to or use by an individual of covered countermeasures,
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`which include certain drugs, biological products, and devices. Covered persons broadly include
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`individuals as well as private and public entities, and the administration of a covered
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`countermeasure can include “purposeful allocation” of the countermeasure, including decisions
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`not to provide a countermeasure to an individual. The Act expressly preempts conflicting state
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`laws and, in the view of the Secretary, implicates “substantial” federal legal and policy interests.
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`I.
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`Removal under 28 U.S.C. § 1441(a)
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`DISCUSSION
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`Under 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a State
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`court of which the district courts of the United States have original jurisdiction.” 28 U.S.C.
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`§ 1441(a). It is, however, well-established that “federal courts are courts of limited jurisdiction.”
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`Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Durant, Nichols,
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`Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009)). “[I]n light
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`of the congressional intent to restrict federal court jurisdiction, as well as the importance of
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`preserving the independence of state governments, federal courts construe the removal statute
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`narrowly, resolving any doubts against removability.” Id. (quoting Lupo v. Human Affs. Int’l, Inc.,
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`28 F.3d 269, 274 (2d Cir. 1994)); accord Teamsters Local 404 Health Servs. & Ins. Plan v. King
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`Pharms., Inc., 906 F.3d 260, 267 (2d Cir. 2018). “Where, as here, jurisdiction is asserted by a
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`defendant in a removal petition, it follows that the defendant has the burden of establishing that
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`removal is proper.” Cal. Pub. Emps.’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004)
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`(quoting United Food & Com. Workers Union, Local 919 v. CenterMark Props. Meriden Square,
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`Inc., 30 F.3d 298, 301 (2d Cir. 1994)).
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`Defendants assert that federal question jurisdiction exists in this case under 28 U.S.C.
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`§ 1331, which grants district courts original jurisdiction “of all civil actions arising under the
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`Constitution, laws, or treaties of the United States.”1 (See Notice of Removal, Dkt. 1, ¶¶ 9, 14.)
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`Yet, it is settled law that “[a] cause of action arises under federal law only when the plaintiff’s
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`‘well-pleaded complaint’ raises an issue of federal law.” New York v. Shinnecock Indian Nation,
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`1 Defendants do not assert diversity jurisdiction under 28 U.S.C. § 1332. (See Notice of
`Removal, Dkt. 1, ¶¶ 9–24.)
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`Case 1:20-cv-04042-PKC-PK Document 20 Filed 02/02/21 Page 13 of 33 PageID #: 1619
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`686 F.3d 133, 138 (2d Cir. 2012) (citing Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987));
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`see also Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“[A] suit arises
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`under the Constitution and laws of the United States only when the plaintiff’s statement of his own
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`cause of action shows that it is based upon those laws or that Constitution.”). Indeed, “since 1887
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`it has been settled law that a case may not be removed to federal court on the basis of a federal
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`defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s
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`complaint[.]” Franchise Tax Bd. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 14
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`(1983); see also Gully v. First Nat’l Bank, 299 U.S. 109, 116 (1936) (“By unimpeachable authority,
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`a suit brought upon a state statute does not arise under an act of Congress or the Constitution of
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`the United States because prohibited thereby.”).
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`Here, Plaintiff’s Complaint pleads no federal claim on its face. Rather, the Complaint
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`alleges claims of common-law negligence, gross negligence, wrongful death, and medical and
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`nursing malpractice, as well as violation of New York Public Health Law. (See Complaint, Dkt.
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`1-1, ¶¶ 57–197.) Even if some of these claims implicate or are preempted by federal law by way
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`of an affirmative defense, such defenses do not appear on the face of the well-pleaded complaint,
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`and accordingly do not authorize removal to federal court. See Metro. Life, 481 U.S. at 63;
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`Franchise Tax Bd., 463 U.S. at 14; Gully, 299 U.S. at 116; see also Marcus v. AT&T Corp., 138
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`F.3d 46, 52 (2d Cir. 1998) (“Generally, a complaint that pleads only state law causes of action may
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`not be removed to federal court even where Congress has chosen to regulate the entire field of law
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`in the area in question.”).
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`There are, however, two exceptions to the well-pleaded complaint rule: (1) when a claim,
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`though pleaded as a state-law claim, “is ‘really’ one of federal law”; and (2) when “some
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`substantial, disputed question of federal law is a necessary element” of a well-pleaded state-law
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`Case 1:20-cv-04042-PKC-PK Document 20 Filed 02/02/21 Page 14 of 33 PageID #: 1620
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`claim. Franchise Tax Bd., 463 U.S. at 13. Defendants argue that one or both exceptions apply
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`here. (See Defendants’ Opposition to Motion to Remand (“Defs.’ Opp.”), Dkt. 13, at 8–21.) The
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`Court disagrees.
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`A.
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`None of Plaintiff’s Claims Are “Really” One of Federal Law
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`1.
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`The PREP Act Does Not Establish Complete Preemption
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`As already explained,
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`the well-pleaded complaint rule prohibits parties from
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`manufacturing federal jurisdiction by way of a federal affirmative defense. The “corollary” to this
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`rule is that “a plaintiff may not defeat federal subject-matter jurisdiction by ‘artfully pleading’ his
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`complaint as if it arises under state law where the plaintiff’s suit is, in essence, based on federal
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`law.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005) (citing, inter alia, Rivet v.
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`Regions Bank of La., 522 U.S. 470, 475–76 (1998)). “The artful pleading rule applies when
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`Congress has either (1) so completely preempted, or entirely substituted, a federal law cause of
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`action for a state one that plaintiff cannot avoid removal by declining to plead necessary federal
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`questions, or (2) expressly provided for the removal of particular actions asserting state law claims
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`in state court.” Romano v. Kazacos, 609 F.3d 512, 519 (2d Cir. 2010) (internal citations and
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`quotations omitted). The second situation is plainly inapplicable here; no one argues that the PREP
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`Act, or other act of Congress, expressly provides for removal of any of Plaintiff’s claims. Cf.
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`Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003) (observing that the Price-Anderson Act
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`“not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also
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`expressly provides for removal of such actions brought in state court even when they assert only
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`state-law claims” (citing El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484–85 (1999))). The
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`question, then, is whether, as Defendants argue (see Defs.’ Opp., Dkt. 13, at 10–16), the PREP Act
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`“completely” preempts Plaintiff’s claims.
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`Case 1:20-cv-04042-PKC-PK Document 20 Filed 02/02/21 Page 15 of 33 PageID #: 1621
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`The doctrine of complete preemption “must be distinguished from ordinary preemption,
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`also known as defensive preemption.” Sullivan, 424 F.3d at 272 (citation omitted). “Ordinary
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`defensive preemption comes in three familiar forms: express preemption, conflict preemption, and
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`field preemption,” id. at 273 (citations omitted), and these forms of preemption plainly are subject
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`to well-pleaded complaint rule, see Franchise Tax Bd., 463 U.S. at 14. Complete preemption, on
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`the other hand, occ