Evon Smith, individually v. Colonial Care Center

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVON SMITH, individually and as
successor-in-interest to decedent Joan Rivers;
DALE CHANAIWA; MAURICE JORDAN;
JUNE SMITH-WIMES; DARREL SMITH;
GARY SMITH; KENNEDY SMITH,
Plaintiffs-Appellees,
v.
COLONIAL CARE CENTER,
Defendant-Appellant,
and
JOHN HOUSTON, Nominal Defendant;
RONALD SMITH, Nominal Defendant;
DOES, 1 through 25, inclusive,
Defendants.
No. 21-55377
D.C. No.
2:21-cv-00494-RGK-PD
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 20, 2023**
* 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).
FILED
JUN 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Colonial Care Center (“Colonial”) appeals from the district court’s order
remanding this case to state court for lack of federal subject matter jurisdiction.
Colonial 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 Colonial’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 Colonial 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

-- 2 of 3 --

3
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
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.1
AFFIRMED.
1 Colonial’s motion for judicial notice, Docket No. 10, is GRANTED.

-- 3 of 3 --