The Estate of Frank Pepine v. Huntington Hills Center for Health & Rehabilitation et al
| Roseann Mariani and The Estate of Frank Pepine |
| Huntington Hills Center for Health & Rehabilitation, ABC Corporation and ABC Partnership |
| 2:2023cv01478 |
| February 24, 2023 |
| US District Court for the Eastern District of New York |
| Joan M Azrack |
| Lee G Dunst |
| Personal Inj. Med. Malpractice |
| 28 U.S.C. ยง 1441 Notice of Removal |
| Both |
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ORDER of Remand to State Court. On March 7, 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 Mar. 7, 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. #6 ), while Defendant argues that removal was proper (ECF No. #7 ). 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). (ECF No. [7-1] at 1-2.) However, the Second Circuit recently considered, and rejected, the precise arguments in favor of removal that Defendant relies on here. See Solomon v. St. Joseph Hosp., 62 F.4th 54, 60-64 (2d Cir. 2023) (rejecting complete preemption, Grable, and federal officer removal theories). The Court is unpersuaded by Defendant's attempts to distinguish this case from Solomon. See Torres v. St. Vincent DePaul Residence, No. 22-CV-7012, 2023 WL 2754305, at *4-6 (S.D.N.Y. Apr. 3, 2023) (rejecting defendant's attempts to distinguish Solomon) (citations omitted). As a result, Solomon requires that Plaintiff's state-law claims be litigated in state court. Accordingly, 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 4/6/2023. (SP)
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| Filing 8 STATE COURT RECORD received from the Suffolk County Clerk re E-filed Supreme Court case, Index #204896/2022. (LC) |
| Filing 7 RESPONSE TO ORDER TO SHOW CAUSE by Huntington Hills Center for Health & Rehabilitation (Attachments: #1 Exhibit Ex. A AO 20-01, #2 Exhibit Ex. B AO 20-02, #3 Exhibit Ex. C AO 20-03, #4 Exhibit Ex. D AO 20-04, #5 Exhibit Ex. E 21-01, #6 Exhibit Ex. F AO 21-02, #7 Memorandum in Opposition Memorandum of Law in Opposition of Remand to State Court) (Connors, James) |
| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by The Estate of Frank Pepine (Attachments: #1 Exhibit Solomon v St Joseph Hospital decision) (Ciaccio, Joseph) |
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ORDER denying #5 Motion for Pre Motion Conference; ORDER TO SHOW CAUSE: Upon review of the docket in this action, including the notice of removal, it appears that the Court lacks subject matter jurisdiction over this action. See Solomon v. St. Joseph Hosp., No. 21-2729, --- F.4th ----, 2023 WL 2376207 (2d Cir. Mar. 7, 2023). Accordingly, 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. The parties' responses are due by 3/14/2023. Defendants' request for a pre-motion conference is denied without prejudice. Ordered by Judge Joan M. Azrack on 3/7/2023. (SP)
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| Filing 5 Letter MOTION for pre motion conference by Huntington Hills Center for Health & Rehabilitation. (Connors, James) |
| Filing 4 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 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made. (LJ) |
| Case Assigned to Judge Joan M. Azrack and Magistrate Judge Lee G. Dunst. 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) |
| Filing 2 NOTICE of Appearance by Michael James Del Piano on behalf of Huntington Hills Center for Health & Rehabilitation (aty to be noticed) (Del Piano, Michael) |
| Filing 1 NOTICE OF REMOVAL by Huntington Hills Center for Health & Rehabilitation from Supreme Court, Suffolk County, case number 204896/2022. Was the Disclosure Statement on Civil Cover Sheet completed -Yes ( Filing fee $ 402 receipt number ANYEDC-16441234) (Attachments: #1 Exhibit A Summons and Complaint State Court Action, #2 Exhibit B Affidavit of Service, #3 Exhibit C - Appellate Brief in Rivera-Zayas v. OLC, et al., #4 Exhibit D - Appellate Brief in Leroy v. Hume, et al., #5 Exhibit E - Appellate Brief in Leroy v. Hume, et al., #6 Exhibit F - Respondent Appellate Brief in Leroy v. Hume, et al., #7 Exhibit G - Respondent Appellate Brief in Rivera-Zayas v. OLC, et al., #8 Exhibit H - Appellant's Reply Brief in Leroy v. Hume, et al., #9 Exhibit I - Appellant's Reply Brief in Leroy v. Hume, et al., #10 Exhibit J - Appellant's Reply Brief in Rivera-Zayas v. OLC, et al., #11 Exhibit K - Amicus Briefs in Rivera-Zayas v. OLC, et al., #12 Exhibit L - Chamber of Commerce Brief in Rivera-Zayas v. OLC, et al., #13 Exhibit M - Chamber of Commerce Brief in Leroy v. Hume, et al., #14 Exhibit N - Statement of Interest in Bolton v. Gallatin Center, #15 Civil Cover Sheet) (Connors, James) Modified on 2/28/2023 (LJ). |
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