Eleventh Circuit Says COVID-19 Wrongful Death Action Against Assisted Living Facility Belongs in State Court
- November 08, 2024
A divided Eleventh Circuit panel held that negligence and wrongful death claims against a Florida nursing home brought by the estate of a resident who died after contracting COVID-19 should be remanded to state court.
Affirming the decision below remanding the action, the Eleventh Circuit held that the Public Readiness and Emergency Preparedness Act (PREP Act) did not preempt the state law claims, nor did the federal-officer removal statute confer subject matter jurisdiction. The appeals court also found no substantial federal issue for keeping the action in federal court.
The Eleventh Circuit decision aligns with Third, Fifth, and Ninth Circuit rulings on the removal issue in similar cases.
Plaintiffs are the co-personal representatives of Sara Schleider, who contracted COVID-19 and died in June 2020 while residing at an assisted living facility owned and operated by defendants GVDB Operations, LLC, and JSMGV Management Company, LLC.
Plaintiffs sued defendants in state court for violating Florida’s “Resident bill of rights” by failing to implement measures to prevent the rampant spread of COVID-19 in their facility. In the alternative, plaintiffs alleged defendants’ “conduct rose to the level of willful misconduct or gross negligence.”
Defendants removed the action to federal district court, contending that they were acting under a federal officer, that the PREP Act completely preempted plaintiffs’ claims, and that the complaint raised an embedded federal question concerning the PREP Act. The district court granted plaintiffs’ motion for remand to state court.
The district court held that defendants improperly removed the action because the complaint alleged only state-law claims and removal to federal court was improper based on potential defenses. The court also found the PREP Act did not completely preempt plaintiffs’ negligence and wrongful death claims based on the facility’s inaction in failing to protect against the spread of COVID-19. The court did not address whether defendants acted under a federal officer.
On appeal, the Eleventh Circuit held that the federal-officer removal statute did not provide subject matter jurisdiction because the facility was not “acting under” the federal government or its agencies or officers.
Merely complying with federal laws and regulations does not amount to “acting under” a federal officer, the appeals court noted. The Eleventh Circuit rejected defendants’ argument that removal was proper because the federal government “enlisted” their facility as part of the nation’s critical infrastructure to combat the spread of COVID-19.
“Recommendations, and even comprehensive regulations, on the protective measures Defendants should have taken are insufficient” to trigger the federal officer removal statute, the appeals court said. Defendants also failed to show “they helped or assisted a federal agency to perform its duties or tasks.” They were not acting under an express delegation of authority to carry out a federal officer’s duties and did not contract with a federal agency to perform a service the agency would have provided.
“Defendants operated as a private assisted living facility that may, or may not, have complied with federal recommendations and regulations concerning COVID-19,” the appeals court added.
Next, the Eleventh Circuit held PREP Act preemption was not a basis for removal. “[T]he PREP Act, including its compensation fund, does not create a general cause of action that would completely preempt all state law claims related to COVID-19 and countermeasures taken, or not taken, to prevent the virus’s spread,” the appeals court said.
Moreover, for PREP Act immunity to apply, there must be a “causal relationship” between the claimed loss and the administration of a covered countermeasure. The complaint alleged, however, that defendants “did not take or implement any covered countermeasures under the PREP Act to prevent the spread of COVID-19” at their facility. Those allegations controlled for purposes of the preemption analysis.
The appeals court also found the PREP Act’s willful misconduct cause of action did not completely preempt plaintiffs’ state law claims for survival and wrongful death, which alleged defendants acted negligently in their care of Schleider. The fact that plaintiffs also alleged defendants’ conduct rose to the level of willful misconduct did not convert their state-law negligence claims under the statutory resident’s bill of rights into claims that were completely preempted by the PREP Act’s narrow cause of action for willful misconduct, the appeals court said.
Finally, the appeals court held plaintiffs’ claims did not raise a substantial federal issue permitting removal. “No federal claim appears on the face of the state court complaint” and application of the PREP Act “based on potential defenses of ordinary preemption and immunity” do not confer federal jurisdiction.
A dissenting opinion argued that because parts of the complaint “strayed into PREP Act territory,” i.e., the allegations of willful misconduct, "the district court had jurisdiction over the entire suit—including supplemental jurisdiction over the negligence parts.”
Schleider v. GVDB Operations, LLC, No. 21-11765 (11th Cir. Oct. 31, 2024).