The Estate of Genevieve McCaffrey v. Our Lady of Consolation Nursing and Rehabilitative Care Center et al
| Genevieve McCaffrey, John McCaffrey and The Estate of Genevieve McCaffrey |
| OUR LADY OF CONSOLATION NURSING AND REHABILITATION CARE CENTER, ABC Corporation, ABC Partnership and Our Lady of Consolation Nursing and Rehabilitative Care Center |
| 2:2023cv01611 |
| March 2, 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 |
Docket Report
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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. #5 ), while Defendant argues that removal was proper (ECF No. #6 ). Specifically, Defendant argues that this Court may properly exercise subject matter jurisdiction because 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. (ECF No. #6 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 *4-5 (S.D.N.Y. Apr. 3, 2023) ("Despite Plaintiff's factual allegations that some of Defendant's conduct was willful or intentional, however, Plaintiff has not brought claims that require those states of mind, and instead has limited her causes of action to those premised on Defendant's negligence. The Second Circuit has made clear that claims premised on negligence do not fall within the scope of the PREP Act's exception for willful misconduct.") (citing Solomon, 62 F.4th at 61-62). 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 7 STATE COURT RECORD received from the Suffolk County Clerk re E-filed Supreme Court case, Index #205017/2022. (LC) |
| Filing 6 RESPONSE TO ORDER TO SHOW CAUSE by Our Lady of Consolation Nursing and Rehabilitative Care Center (Lawless, Megan) |
| Filing 5 RESPONSE TO ORDER TO SHOW CAUSE by The Estate of Genevieve McCaffrey (Attachments: #1 Exhibit Solomon v St Joseph Hospital - 2nd Circuit decision) (Ciaccio, Joseph) |
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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. Ordered by Judge Joan M. Azrack on 3/7/2023. (SP)
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| 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 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) |
| Filing 2 NOTICE of Appearance by Megan A. Lawless on behalf of Our Lady of Consolation Nursing and Rehabilitative Care Center (aty to be noticed) (Lawless, Megan) Modified on 3/3/2023 (LJ). |
| Filing 1 NOTICE OF REMOVAL by Our Lady of Consolation Nursing and Rehabilitative Care Center from Supreme Court of the State of New York, case number 205017/2022. ( Filing fee $ 402 receipt number ANYEDC-16458274) Was the Disclosure Statement on Civil Cover Sheet completed -No (Attachments: #1 Exh.A - Summons & Complaint, #2 Exh.B - Accept Service, #3 Exh.C - Martinez - Rivera - Brief for Defendants-Appellants.pdf, #4 Exh.D - Leroy - Brief obo Brookdale Hospital Defendants.pdf, #5 Exh.E - Leroy - Brief obo Mt. Sinai Hospital Defendants.pdf, #6 Exh.F - Leroy - 2nd Circuit - Plaintiff's Brief in Leroy v. Hume.pdf, #7 Exh.G - Martinez Brief obo Pltf-Appellee.pdf, #8 Exh.H - Leroy - Reply Brief obo Defendants.pdf, #9 Exh.I - Leroy Reply Brief obo Co-Def.pdf, #10 Exh.J - Rivera-Zayas - Reply Brief.pdf, #11 Exh.K - Amicus Briefs pending before the Second Circuit.pdf, #12 Exh.L - Chamber of Commerce AMA Amicus Brief.pdf, #13 Exh.M - Motion to File Amicus Curiae Brief.pdf, #14 Exh.N - US Statement of Interest (M.D. Tenn) Centeno.pdf, #15 Civil Cover Sheet EDNY) (Braverman, Dylan) Modified on 3/3/2023 (LJ). |
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