In October 2019, Sara Schleider was admitted as a patient at an assisted living facility owned and operated by Defendants. Around May 9, 2020, she contracted COVID-19 at Defendants’ facility and died soon after .
Plaintiffs, as representatives for Sara Schleider’s estate, asserted survival and wrongful death claims against Defendants for violating Florida Statute § 429.28—the “Resident bill of rights” within Florida’s Assisted Living Facilities Act—in Florida state court. In support of their claims, Plaintiffs alleged that Defendants owed a duty to Sara Schleider “to properly hire, retain and supervise employees to ensure” that their employees “exercised nonnegligent care.” Plaintiffs also alleged Defendants breached that duty by generally failing to implement measures to prevent the transmission of COVID-19 to Sara Schleider. Plaintiffs alleged that Defendants “complete[ly] fail[ed] to provide[] any appropriate countermeasures to prevent the rampant spread of COVID-19 at Defendants’ facility.” And Plaintiffs alleged that Defendants’ negligence was the proximate cause of Sara Schleider’s—and her estate’s—injuries and damages. In the alternative, and in support of their Florida Statute § 429.28 claims, Plaintiffs also alleged that Defendants’ “conduct rose to the level of willful misconduct or gross negligence” because their “conduct was in disregard of a known or obvious risk that was so great as to make it highly probable that the harm it caused[] outweighed any actions [they] took.” Defendants subsequently removed Plaintiffs’ state court action to federal district court under 28 U.S.C. §§ 1441(a) and1442(a)(1).
The federal district court held that Defendants improperly removed this case under 28 U.S.C. § 1441(a) because
Plaintiffs’ complaint alleged only state-law claims and that Defendants could not remove the case to federal court based on potential defenses to Plaintiffs’ claims. The district court further held that the PREP Act did not completely preempt Plaintiffs’ claims and that Plaintiffs’ “state-law claims of negligence and wrongful death based on a nursing home’s inaction in failing to protect against the spread of COVID-19 . . . are not within the scope of the PREP Act.” But the district court did not address whether removal was proper under § 1442(a)(1)—i.e., whether Defendants had acted under a federal officer. The Defendants appealed.
The United States Court of Appeals for the Eleventh Circuit stated in its October 31, 2024 Opinion: “Under 28 U.S.C. § 1441(a), a defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” When, as here, complete diversity citizenship does not exist, the defendant must show that federal question jurisdiction is present … even if a plaintiff has pled only state-law claims, a plaintiff may not avoid federal jurisdiction if either: (1) the state-law claims raise substantial questions of federal law or (2) federal law completely preempts the state-law claims.”
The Defendants argued on appeal that the district court had subject matter jurisdiction, and therefore they had properly removed this case to federal court, because: (1) Defendants acted under a federal officer; (2) Plaintiffs’ claims are completely preempted by the PREP Act; and (3) Plaintiffs’ claims raise an embedded federal question concerning the PREP Act. Defendants’ first argument in favor of removal relies on 28 U.S.C. § 1442(a)(1), which allows “any officer (or any person acting under that officer) of the United States or of any agency thereof” to remove a case to federal court if certain requirements are met. Defendants’ second and third arguments in favor of removal rely on federal question jurisdiction under § 1441(a).”
The federal appellate court stated: “We, like our sister circuits that have addressed nearly identical arguments, therefore conclude that Defendants were not acting under a federal official … Instead, Defendants operated as a private assisted living facility that may, or may not, have complied with federal recommendations and regulations concerning COVID-19.”
With regard to federal preemption, the federal appellate court stated: “[T]he PREP Act provides exclusive federal jurisdiction for its willful misconduct cause of action. See 42 U.S.C. § 247d6d(e)(1) … State-law causes of action that fall outside the PREP Act’s definition of willful misconduct, including state-law causes of action for negligence, do not have a “parallel federal cause of action” under the PREP Act … The PREP Act therefore cannot “wholly displace[]” every “state-law cause of action through complete preemption” … We thus conclude and agree with our sister circuits that the 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.”
Furthermore, “Defendants here—at least at this stage of the case—are not entitled to immunity under the PREP Act, which requires a causal relationship to the use or administration of a covered countermeasure … because Plaintiffs’ state-law causes of action for negligence under Florida Statute § 429.28 cannot be brought under the PREP Act’s cause of action for willful misconduct, Plaintiffs’ state-law causes of action are not completely preempted by that cause of
action … while ordinary preemption provides an affirmative defense to state-law claims, it will not provide a basis for removal to federal court.”
Source Schleider v. GVDB Operations, LLC, Case: 21-11765.
If you or a loved one suffered injuries (or worse) while a resident of an assisted living facility in the United States, you should promptly find an assisted living facility negligence lawyer in your state who may investigate your assisted living facility negligence claim for you and file an assisted living facility negligence claim on your behalf or behalf of your loved one, if appropriate.
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