Tracy Lamonica v. Heights of Summerlin, LLC ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY LAMONICA, individually and as No. 22-15446
heir to, and as Special Administrator on
behalf of Estate of Phyllis Ann Wyant, D.C. No.
2:21-cv-01040-JCM-DJA
Plaintiff-Appellee,
v. MEMORANDUM*
HEIGHTS OF SUMMERLIN, LLC, DBA
The Heights of Summerlin,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 20, 2023**
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Heights of Summerlin, LLC (“Summerlin”) appeals from the district court’s
order remanding this case to state court for lack of federal subject matter jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Summerlin argues that the district court had three independent grounds for such
jurisdiction: federal officer removal, complete preemption, and the presence of an
embedded federal question.
I
The district court did not have federal subject matter jurisdiction under the
federal officer removal statute, 28 U.S.C. § 1442(a)(1), because Summerlin’s actions
were not “taken pursuant to a federal officer’s directions.” Saldana v. Glenhaven
Healthcare LLC, 27 F.4th 679, 684 (9th Cir. 2022) (cleaned up). While Summerlin
has demonstrated that, like the defendants in Saldana, it was subject to federal laws
and regulations throughout the COVID-19 pandemic, “simply complying with a law
or regulation is not enough to bring a private person within the scope of the [federal
officer removal] statute.” Id. (cleaned up). Similarly, recommendations, advice, and
encouragement from federal entities do not amount to the type of control required
for removal under the statute. See id. at 685.
II
The district court did not have federal subject matter jurisdiction under the
doctrine of complete preemption because the Public Readiness and Emergency
Preparedness (PREP) Act, 42 U.S.C. §§ 247d-6d, 247d-6e, is not a complete
preemption statute—that is, it is not one of those “rare” statutes “where a federal
statutory scheme is so comprehensive that it entirely supplants state law causes of
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action.” Saldana, 27 F.4th at 686 (cleaned up). While the PREP Act may preempt
some state-law claims, any such conflict preemption would be an affirmative
defense, and would not create federal subject matter jurisdiction. See id. at 688.
III
The district court did not have embedded federal question jurisdiction because
the state-law causes of action in the complaint do not “necessarily” raise
“substantial” federal issues that are “actually disputed” and “capable of resolution in
federal court without disrupting the federal-state balance approved by Congress.” Id.
at 688 (cleaned up). Although a federal defense may be available under the PREP
Act, “a federal defense is not a sufficient basis to find embedded federal question
jurisdiction.” Id.
IV
In short, all of Summerlin’s challenges are controlled by Saldana. Summerlin
argues that Saldana was wrongly decided, but cites no “clearly irreconcilable”
intervening authority permitting us to overrule it. Miller v. Gammie, 335 F.3d 889,
900 (9th Cir. 2003) (en banc). Accordingly, we apply Saldana.
AFFIRMED.
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