Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Date: 05-01-2023
Case Style:
Case Number: 7:23-cv-02462
Judge: Philip M. Halpern
Court: United States District Court for the Southern District of New York (Westchester County)
Plaintiff's Attorney:
Defendant's Attorney: Janine A. Mastellone
Description: White Plains, New York personal injury lawyer represented Plaintiff who sued Defendant on a medical malpractice theory.
This case was filed in the tate Court- Supreme, 67821/2022, and was removed to federal court by the Defendants.
Defendants, on March 23, 2023, removed this action from Supreme Court, County of Westchester, to this Court, contending this Court has original jurisdiction under 28 U.S.C. § 1441(a) because Plaintiff's complaint asserts a claim that falls within the purview of the Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C. §§ 247d-6d, 247d-6e, and removal is therefore proper under the doctrine of complete preemption. On March 28, 2023, Defendants requested that this Court stay the action or extend their time to answer the Complaint, on the grounds that appeals were pending before the Second Circuit Court of Appeals relating to “the scope and the breadth of the PREP Act in terms of subject-matter jurisdiction, embedded federal question jurisdiction, and federal officer removal jurisdiction.” The appeals referenced by Defendants in their letter requesting a stay are the matters entitled Rivera-Zayas v. Our Lady of [Consolation], bearing Docket No. 21-2164 (“Rivera-Zayas”), and Leroy v. Hume, bearing Docket Nos. 21-2158, 21-2159 (“Leroy”). (See Doc. 4). The Court denied the request to stay but extended Defendants' time to answer or otherwise respond to the Complaint under Rule 81(c).
On March 29, 2023, Plaintiff filed a letter opposing Defendants' request and indicated its intent to move to remand this action to State Court. (Doc. 7). The Court, on March 30, 2023, noted that although a pre-motion conference letter is not required under the Court's Individual Practices, Plaintiff could file a letter-motion in support of its application to remand in lieu of formal briefing, and that the Court could, in its discretion, construe such a letter-motion as the motion itself. (Doc. 8). The Court set a briefing schedule for Plaintiff's anticipated application. (Id.).
The Second Circuit issued Summary Orders and Judgments in Rivera-Zayas and Leroy. In light of the Second Circuit's holdings that the PREP Act does not completely preempt a plaintiff's state law claims, that these state law claims do not arise under federal law under the “arising under” jurisdiction doctrine, and that the federal officer removal statute does not apply, the Court directs the parties, by April 17, 2023, to meet and confer in an effort to avoid motion practice and, if they be so advised, file an order and stipulation remanding this action to State Court.
Outcome: In the event the parties are unable to agree, Plaintiff's letter-motion (or motion) to remand shall also address the impact on this case of the recent Second Circuit decisions in Rivera-Zayas and Leroy.
05/01/2023 13 PROPOSED STIPULATION AND ORDER. Document filed by Cabrini of Westchester, St. Cabrini Nursing Home..(Mastellone, Janine) (Entered: 05/01/2023)
05/01/2023 14 STIPULATION IT IS HEREBY STIPULATED AND AGREED by and between the attorneys for all parties, that this action be remanded to the Supreme Court of the State of New York, County of Westchester, for all further proceedings, without costs or fees to any party. IT IS FURTHER STIPULATED AND AGREED that nothing in this Stipulation affects any defense of immunity or defensive preemption under the Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e. The Clerk of Court is respectfully directed to send a copy of this Order and Stipulation to the Supreme Court, State of New York, County of Westchester, and to close this case. All pending matters and conferences are cancelled. SO ORDERED (Signed by Judge Philip M. Halpern on 5/1/2023) (jca) Transmission to Docket Assistant Clerk for processing. (Entered: 05/01/2023)
05/01/2023 CASE REMANDED OUT from the U.S.D.C. Southern District of New York to the State Court - Supreme Court of the State of New York, County of Westchester. Sent certified copy of docket entries and remand order. Mailed via UPS Tracking Number 1z e22 e53 37 1007 718 6 on 5/1/2023..(jca) (Entered: 05/01/2023)
Plaintiff's Experts:
Defendant's Experts:
Comments: