The Estate of Teresa Bua v. Oasis Rehabilitation and Nursing, LLC et al
| The Estate of Teresa Bua |
| Oasis Rehabilitation and Nursing, LLC, ABC Corporation and ABC Partnership |
| 2:2023cv00617 |
| January 27, 2023 |
| US District Court for the Eastern District of New York |
| Joan M Azrack |
| Steven I Locke |
| Personal Inj. Med. Malpractice |
| 28 U.S.C. ยง 1441 Notice of Removal |
| Both |
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| Filing 10 STATE COURT RECORD Received from the Supreme Court of the State of New York, County of Suffolk re Index #601451/2023, containing Clerk's Minutes and a copy of the Notice of Removal. (LC) |
ORDER denying #7 Motion to Stay; Order of Remand to State Court. Defendant has requested that this case be stayed pending the resolution of several similar cases currently before the Second Circuit. (ECF No. #7 .) Defendant's request is denied. See In re: Nursing Facility COVID-Related Damages Actions Removed Under the PREP Act, No. 22-CV-7528, 2023 WL 394888, at *23 (E.D.N.Y. Jan. 24, 2023) (denying removing defendants' requests to stay pending resolution of PREP Act appeals). On February 2, 2023, the Court ordered the parties to show cause why this case should not be remanded to the Supreme Court of New York, Suffolk County, for lack of subject matter jurisdiction. (See Electronic Order to Show Cause dated Feb. 2, 2023.) Currently before the Court are the parties' responses to the Order to Show Cause. Plaintiff contends that the case should be remanded (ECF No. #9 ), while Defendant argues that removal was proper (ECF No. #8 ). Specifically, Defendant argues that this Court may properly exercise subject matter jurisdiction because: (1) Plaintiff's claims "arise under" federal law, as they are completely preempted by the Public Readiness and Emergency Preparedness Act ("PREP Act"), 42 U.S.C. 247d-6d, 247d-6e; (2) the Complaint raises "important federal questions" that warrant adjudication in federal court, per Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005); and (3) this Court has jurisdiction under the federal officer removal statute, 28 U.S.C. 1442(a)(1). (Id.) This Court has already considered, and rejected, the precise arguments in favor of removal that Defendant relies on here. See Escobar v. Mercy Med. Ctr. No. 21-CV-02101, 2022 WL 669366, at *13 (E.D.N.Y. Mar. 7, 2022) (rejecting complete preemption, Grable, and federal officer removal theories), appeal filed, No. 22-613. Indeed, the "overwhelming consensus among district courts that have considered the issues presented by the instant motion to remand is that removal is improper and remand of the case back to state court is required." Aponte v. Our Lady of Consolation Nursing & Rehab. Care Ctr., No. 22-CV-18, 2022 WL 17851799, at *4 (E.D.N.Y. Dec. 22, 2022) (rejecting complete preemption, Grable, and federal officer removal theories); see also In re: Nursing Facility COVID-Related Damages Actions, 2023 WL 394888, at *24, n.2 (same) (collecting cases). Likewise, every Circuit court to have considered these arguments has reached the same conclusion. See Martin v. Petersen Health Operations, LLC, 37 F.4th 1210 (7th Cir. 2022) (rejecting complete preemption, Grable, and federal officer removal theories); Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580 (5th Cir. 2022) (same); Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022) (same); Maglioli v. Alliance HC Holdings LLC, 16 F.4th 393 (3d Cir. 2021) (same). The Court sees no reason to depart from this clear consensus. Accordingly, the Court adopts the reasoning of the above-cited cases and rejects Defendant's arguments that there is federal jurisdiction in this case under the PREP Act, the Grable doctrine, or the federal officer removal statute. Defendant has failed to establish that the Court has subject matter jurisdiction over this action and that removal was proper. See Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011) ("A party seeking removal bears the burden of showing that federal jurisdiction is proper.") (citation omitted). Therefore, the Clerk of Court is respectfully directed to remand this case to the Supreme Court of New York, Suffolk County. Ordered by Judge Joan M. Azrack on 2/22/2023. (SP)
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| Filing 9 RESPONSE TO ORDER TO SHOW CAUSE by The Estate of Teresa Bua (Ciaccio, Joseph) |
| Filing 8 Letter in Response to Order to Show Cause and in Support of Bases for Federal Jurisdiction by Oasis Rehabilitation and Nursing, LLC (Lawless, Megan) |
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ORDER TO SHOW CAUSE: Upon review of the docket in this action, including the notice of removal, the parties are ordered to show cause, in writing, why this case should not be remanded to the Supreme Court of New York, Suffolk County, for lack of subject matter jurisdiction. See Escobar v. Mercy Med. Ctr., No. 21-CV-02101, 2022 WL 669366, at *1-3 (E.D.N.Y. Mar. 7, 2022), appeal filed, No. 22-613; Danielo v. Our Lady of Consolation Geriatric Care Ctr., No. 22-CV-07856 (E.D.N.Y. Jan. 30, 2023), ECF No. 12. The parties' responses are due by 2/9/2023. Ordered by Judge Joan M. Azrack on 2/2/2023. (SP)
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| Filing 7 First MOTION to Stay and to Hold Motion Practice in Abeyance by Oasis Rehabilitation and Nursing, LLC. (Attachments: #1 Exhibit Stay Orders) (Lawless, Megan) |
| Filing 6 NOTICE of Appearance by Megan A. Lawless on behalf of Oasis Rehabilitation and Nursing, LLC (notification declined or already on case) (Lawless, Megan) |
| Filing 5 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (LJ) |
| Filing 4 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Filing 3 NOTICE of Appearance by Jennifer Marie Lobaito on behalf of Oasis Rehabilitation and Nursing, LLC (aty to be noticed) (Lobaito, Jennifer) |
| Filing 2 NOTICE of Appearance by Brian M Andrews on behalf of Oasis Rehabilitation and Nursing, LLC (aty to be noticed) (Andrews, Brian) |
| Filing 1 NOTICE OF REMOVAL by Oasis Rehabilitation and Nursing, LLC from Supreme Court, case number 601451/2023. ( Filing fee $ 402 receipt number ANYEDC-16351036) Was the Disclosure Statement on Civil Cover Sheet completed -No (Attachments: #1 Exhibit Exhibit A - Summons and Complaint, #2 Exhibit Exh B - Service Accepted, #3 Exhibit Exh C - Martinez-Rivera - Brief for Defendants-Appellants, #4 Exhibit Exh D - Leroy - Brief obo Brookdale Hospital Defendants, #5 Exhibit Exh E - Leroy - Brief obo Mt. Sinai Hospital Defendants, #6 Exhibit Exh F - Leroy -2nd Circuit-Plaintiff's Brief in Leroy v. Hume, #7 Exhibit Exh G - Martinez Brief obo Pltf-Appellee, #8 Exhibit Exh H - Leroy - Reply Brief obo Defendants, #9 Exhibit Exh I - Leroy Reply Brief obo Co-Def, #10 Exhibit Exh J - Rivera-Zayas - Reply Brief, #11 Exhibit Exh K - Amicus Briefs pending before the Second Circuit, #12 Exhibit Exh L - chamber of Commerce AMA Amicus Brief, #13 Exhibit Exh M - Motion to File Amicus Curiae Brief & Proposed Amicus Brief, #14 Exhibit Exh N - US Statement of Interest (M.D. Tenn) Centeno, #15 Civil Cover Sheet Civil Cover Sheet) (Braverman, Dylan) Modified on 1/27/2023 (LJ). |
| Case Assigned to Judge Joan M. Azrack and Magistrate Judge Steven I. Locke. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (LJ) |
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