The U.S. District for the Northern District of Ohio remands back to state court a complaint alleging claims against a nursing home due to a lack of jurisdiction. Jurisdiction to hear and decide the claims in the complaint is not established pursuant to a federal question, the federal officer removal statute, or the Public Readiness and Emergency Preparedness Act (PREP Act). For these reasons, remand is required. In Nemeth v. Montefiore, et al. (N.D. Ohio 2022, 21-cv-02064, September 21, 2022).
Anthony Berardinelli passed away during the COVID-19 pandemic while under the care of Montefiore. In September 2021, Thomas Nemeth, executor of Mr. Berardinelli’s estate, filed a lawsuit in state court against Montefiore, alleging medical malpractice, nursing home neglect, and wrongful death.
In November 2021, Montefiore removed the lawsuit to federal court. Montefiore argued that removal was warranted due to the presence of a federal question — namely, that the PREP Act governed Mr. Nemeth’s complaint, pre-empts state law, and gave the district court exclusive jurisdiction over Mr. Nemeth’s claims. In the alternative, Montefiore argued that removal was warranted under the federal officer removal statute. Mr. Nemeth disagreed with both arguments and sought to remand the case back to state court.
The court holds that it lacks subject matter jurisdiction over the alleged claims and must remand the case back to state court.
First, the court finds that Mr. Nemeth’s claims do not fall within the scope of the PREP Act because he does not assert that Mr. Berardinelli’s death was “caused by, arose out of, related to, or resulted from” the “administration” or “use” of a diagnostic COVID-19 test. Rather, the allegations mostly relate to failures to act, negligence, or reckless actions that are not covered by the PREP Act.
Second, the court sides with the majority of district courts, which hold the PREP Act does not totally pre-empt state law. The court finds Mr. Nemeth’s willful misconduct claims do not fall within the scope of the PREP Act, and the Act does not entirely pre-empt these types of claims.
Finally, the court rejects Montefiore’s argument that the action is removable under the federal officer removal statute. The defendants cannot show that they acted under federal authority as defined by the statute. Being subject to or complying with regulations and orders required by federal agencies during the pandemic does not equate to Montefiore being a government contractor, having federal authority, or any of the other parameters needed to qualify as a federal officer.
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