Opinion
Case No. 1:21-cv-2561-MLB
2022-01-07
Lois MARSHALL, Plaintiff, v. GEORGIA CVS PHARMACY, L.L.C.; Georgia CVS Pharmacy, LLC d/b/a CVS Pharmacy #6106; CVS Pharmacy, Inc.; ABC Company 1–5; Jane Doe 1–5, Defendants.
Matthew Michaud, Chain Breaker Law Firm, Marietta, GA, for Plaintiff. Daniel J. Huff, Taylor Chamberlin Tribble, Huff Powell & Bailey, LLC, Atlanta, GA, Max Mathew Wallace, II, Jones Day, Atlanta, GA, for Defendants Georgia CVS Pharmacy, L.L.C., Georgia CVS Pharmacy, LLC, CVS Pharmacy, Inc.
Matthew Michaud, Chain Breaker Law Firm, Marietta, GA, for Plaintiff.
Daniel J. Huff, Taylor Chamberlin Tribble, Huff Powell & Bailey, LLC, Atlanta, GA, Max Mathew Wallace, II, Jones Day, Atlanta, GA, for Defendants Georgia CVS Pharmacy, L.L.C., Georgia CVS Pharmacy, LLC, CVS Pharmacy, Inc.
ORDER
MICHAEL L. BROWN, UNITED STATES DISTRICT JUDGE
Plaintiff Lois Marshall moves to remand this case to state court for lack of subject matter jurisdiction. (Dkt. 7.) The Court grants Plaintiff's motion.
I. Background
On April 26, 2021, Plaintiff went to a CVS pharmacy to get a COVID-19 test. (Dkt. 1-1 at 3.) She needed a negative test result for an upcoming trip to Aruba. (Id. ) She had no symptoms and was fully vaccinated. (Id. )
Plaintiff completed her test at 9:14 a.m. (Id. at 4.) CVS employees then told her to wait outside the store until they called her with her test results. (Id. ) They said her results would be ready in about 15 minutes. (Id. )
Plaintiff waited in her car for over an hour, but CVS never called. (Id. ) So she went back into the store (wearing a mask) to ask for an update and to use the bathroom. (Id. ) As she did so, a CVS nurse yelled, "[s]he's not supposed to be in here! She has the virus!" (Id. ) Plaintiff asked the nurse if she was talking about her. (Id. ) The nurse said she was, and again shouted "[y]ou have COVID-19! You can't be in here!" (Id. ) Plaintiff said her test result must be a false positive because she was fully vaccinated and recently tested negative. (Id. ) She requested another test to verify whether she was infected. (Id. ) The nurse replied "there is no such thing as a false positive," told Plaintiff she could not use the store bathroom, and threatened to call the police if she did not leave. (Id. ) Other CVS customers heard what the nurse said. (Id. ) The nurse eventually escorted Plaintiff out of the store. (Id. ) As she did so, "[p]eople shunned [Plaintiff] and ran from her as if she was a leper in ancient times." (Id. at 10.)
Plaintiff received her official test results later that morning. (Id. at 5.) They showed she tested positive for COVID-19 at 9:00 a.m. even though she did not actually take the test until 9:14 a.m. (Id. at 5–6.) They also indicated a false positive was possible, contrary to what the CVS nurse had said in the store. (Id. at 5.) Plaintiff took another COVID-19 test at a different facility later that day. (Id. ) This time she got a negative result. (Id. )
Plaintiff ultimately travelled to Aruba without incident. (Id. ) She twice tested negative for COVID-19 while she was there. (Id. ) The Cobb County Health Department also called Plaintiff during her trip. (Id. ) They said CVS had identified her as a COVID-19 carrier, she was now registered as a carrier in "the national database," and she had to quarantine upon her return to the United States. (Id. ) Plaintiff never gave CVS permission to disclose her health information to third parties, including the Health Department. (Id. at 6.) There is no evidence or allegation that Plaintiff actually ended up quarantining or that she suffered any adverse consequence from her registration in the national database (beyond emotional distress). In May 2021, Plaintiff sued Defendants (a group of CVS entities and fictitious parties) in the State Court of Cobb County. (Dkt. 1-1.) Plaintiff asserted claims for intentional infliction of emotional distress (Count 1), negligent infliction of emotional distress (Count 2), slander (Count 3), libel (Count 4), unauthorized publication of private facts (Count 5), civil rights violations (Count 6), and deceit (Count 7). (Id. at 6–11.) She essentially claimed Defendants lied about her COVID-19 test result, and unlawfully disseminated that lie (including her confidential health information) to other CVS customers and to the Cobb County Health Department. She sought damages of "not less than $45,000.00," plus attorneys’ fees under O.C.G.A. § 19-6-2. (Id. at 12.) In June 2021, Defendants removed to this Court based on diversity and federal question jurisdiction. (Dkt. 1.) Plaintiff now moves to remand for lack of subject matter jurisdiction. (Dkt. 7.)
II. Discussion
A. Diversity Jurisdiction
Defendants say the Court has diversity jurisdiction. (Dkt. 1 ¶ 18.) Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and the suit is between citizens of different states. 28 U.S.C § 1332(a). "[D]iversity jurisdiction is determined at the time of removal." Smith v. Comcast Corp. , 786 F. App'x 935, 939 (11th Cir. 2019). "[T]he removing defendant bears the burden of proving that federal diversity jurisdiction exists." Jarrell v. Giles , 2006 WL 1285074, at *1 (M.D. Ga. May 9, 2006) ; see City of Vestavia Hills v. Gen. Fidelity Ins. Co. , 676 F.3d 1310, 1313 n.1 (11th Cir. 2012).
"Where ... a plaintiff specifically alleges an amount of damages less than the amount in controversy required by § 1332, the defendant must prove to a legal certainty that the amount in controversy actually exceeds $ 75,000." Fernandez v. Integon Nat'l Ins. Co. , 2018 WL 8039758, at *2 (S.D. Fla. Aug. 23, 2018) ; see Lucas v. USAA Cas. Ins. Co. , 716 F. App'x 866, 867 n.1 (11th Cir. 2017). But where, as here, "a plaintiff makes an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the jurisdictional requirement." Roe v. Michelin N. Am., Inc. , 613 F.3d 1058, 1061 (11th Cir. 2010) (emphasis added). "In some cases, this burden requires the removing defendant to provide additional evidence demonstrating that removal is proper." Id. "In other cases, however, it may be facially apparent from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, even when the complaint does not claim a specific amount of damages." Id. "District courts may make reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that a case establishes the jurisdictional amount." Wineberger v. RaceTrac Petroleum, Inc. , 672 F. App'x 914, 917 (11th Cir. 2016). That is, "courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Roe , 613 F.3d at 1062. Courts "strictly construe the right to remove and apply a general presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Scimone v. Carnival Corp. , 720 F.3d 876, 882 (11th Cir. 2013).
Plaintiff's complaint seeks damages of "not less than $45,000.00" for (1) the "intense emotional distress and humiliation" she felt when she and other CVS store customers thought she had COVID-19; and (2) her "severe anxiety at the possibility of being quarantined and ... being registered as a COVID carrier in a national database," which "ruined" her vacation in Aruba. (See Dkt. 1-1 at 4–7, 12.) These injuries are essentially emotional, which makes them inherently hard to quantify. See Love v. N. Tool & Equip. Co. , 2008 WL 2955124, at *5 (S.D. Fla. Aug. 1, 2008) ("Determining the value of [an] emotional distress claim is a difficult task to undertake without a large amount of speculation."). Defendants have not "quantified these losses with any specific dollar figures." Bradley v. Kelly Servs., Inc. , 224 F. App'x 893, 895 (11th Cir. 2007). Nor have they "presented any calculations as to the amount of loss." Id. They simply say Plaintiff's "serious allegations ... make clear that this case exceeds the $75,000.00 amount in controversy requirement." (Dkt. 1 ¶ 37.) That conclusory assertion is too speculative to meet their burden. See Leonard v. Enter. Rent a Car , 279 F.3d 967, 972 (11th Cir. 2002) ("A conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant's burden."); Bradley , 224 F. App'x at 895 ("mere speculation" about the amount in controversy is insufficient).
To the extent Plaintiff seeks damages for other potential injuries—such as loss of reputation or the cost/burden of the COVID-19 tests she took after her positive result at CVS—Defendants have not quantified those damages or shown they would add significantly to the amount in controversy.
Even if the Court could speculate about the amount in controversy, it would likely peg this case below $75,000. Plaintiff's own estimate refers to $45,000 (albeit as a floor rather than a ceiling). Plaintiff's emotional injuries were presumably short-lived given that she tested negative for COVID-19 shortly after the CVS incident and again after she spoke with the Cobb County Health Department. She never had to quarantine. Her registration in the "national database" ultimately caused her no harm (beyond her own anxiety about it). There is no allegation of physical injury or any hard expenses such as medical bills. There is no allegation that the handful of people who thought she was infected actually knew her or had any impact on her life. And she does not seek punitive damages. See Gilkes v. Philadelphia Express Tr. , 2021 WL 3913581, at *4 (S.D. Ga. Sept. 1, 2021) (excluding punitive damages from the amount-in-controversy calculation because "Plaintiff does not mention punitive damages in his Complaint, much less specifically pray for them"). Her injuries essentially boil down to a moment of embarrassment at CVS and some anxiety about her COVID-19 status, which was ultimately negative. These injuries are not trivial. But they likely fall short of the jurisdictional amount.
Defendants counter that "[a] cursory verdict search utilizing Westlaw reveals an abundance of claims for invasion of privacy and other dignitary torts where plaintiffs received verdicts in excess of $75,000, even without any physical injury." (Dkt. 12 at 8.) But Defendants never attach these verdict forms or even cite—much less analyze—the cases from which they were pulled. So "the court does not have the detail necessary to determine whether the cases are, in fact, substantially similar" to the lawsuit here. Brunk v. MEGA Life & Health Ins. Co. , 2008 WL 11377760, at *3 (N.D. Ala. Apr. 15, 2008) (declining to consider other cases in determining the amount in controversy). And that precludes the Court from using them to determine the amount in controversy in this case. See Love , 2008 WL 2955124, at *5 (criticizing removing defendant for citing other cases to establish the amount in controversy because it did so "without comparing the factual or legal claims made in those cases to [plaintiff's] claims or explaining the relevance of those awards to the issue at hand").
Defendants also point out that Plaintiff's complaint seeks "reasonable attorney fees pursuant to O.C.G.A. § 19-6-2 and other applicable law." (Dkt. 1-1 at 12; see Dkts. 1 ¶ 35; 12 at 5.) "The general rule is that attorneys’ fees do not count towards the amount in controversy unless they are allowed for by statute or contract." Federated Mut. Ins. Co. v. McKinnon Motors, LLC , 329 F.3d 805, 808 n.4 (11th Cir. 2003). Plaintiff does cite a statute in support of her fee request: Section 19-6-2 of the Georgia Code. But this provision is inapplicable on its face. See Brooks v. Hayden , 355 Ga.App. 171, 843 S.E.2d 594, 598 (2020) (" OCGA § 19-6-2 ... authorizes attorney fees only in divorce and alimony cases."); In Int. of S.K.R. , 229 Ga.App. 652, 494 S.E.2d 558, 559 (1997) ("[B]y its terms, OCGA § 19-6-2 authorizes an award of attorney fees only in (1) alimony cases, (2) divorce and alimony cases, and (3) contempt actions arising out of alimony or divorce and alimony cases."). "Since the plaintiff[ ] [has] no right to recover attorneys’ fees from defendants in this case, [her] request for attorneys’ fees does not constitute part of [her] claim against the defendants and cannot be considered for amount in controversy purposes." Leonard , 279 F.3d at 974 ; see Kivisto v. Kulmala , 497 F. App'x 905, 907 (11th Cir. 2012) (excluding attorneys’ fees from the amount in controversy because "the attorney's fees provision was inapplicable to the type of claims asserted in the state court action"); see also Sammie Bonner Const. Co. v. W. Star Trucks Sales, Inc. , 330 F.3d 1308, 1312 (11th Cir. 2003).
Even if the Court could consider Plaintiff's fee request, the Court has no idea what it is worth. Defendants simply say "it is ... quite possible that the attorney's fees spent litigating a case through trial could accrue to $30,000 or more." (Dkt. 12 at 6; see also Dkt. 1 ¶ 35 ("attorney's fees ..., if awarded, would likely be substantial").) This "allegation regarding the amount of fees [is] too conclusory." Kivisto , 497 F. App'x at 907 ; see Rae v. Perry , 392 F. App'x 753, 756 (11th Cir. 2010) ("Perry's [attorney fee] calculations were based on his own speculation, and therefore, were not objectively reasonable" for the purposes of calculating the amount in controversy). And, besides, the "trend" in our Circuit is to "include[ ] only fees accrued at the time of removal in calculating the amount in controversy," not the "highly speculative amount of attorney's fees estimated through trial." Brown v. Wendy's Int'l, LLC , 2021 WL 2886078, at *3 (M.D. Fla. July 9, 2021) (emphasis added). So Plaintiff's fee request does not show this case exceeds $75,000.
In sum, "the jurisdictional amount is neither stated clearly on the face of the documents before the court, nor readily deducible from them." Rae v. Perry , 392 F. App'x at 755. So the Court "lacks [diversity] jurisdiction and must remand to state court" unless Defendants can establish another basis for jurisdiction. Id.
B. Federal Question Jurisdiction
"Where, as here, there is not [diversity jurisdiction], the defendant must show that federal question jurisdiction is present." Dunlap v. G&L Holding Grp., Inc. , 381 F.3d 1285, 1289 (11th Cir. 2004). District courts have federal question jurisdiction over all civil actions "arising under" federal law. Id. ; 28 U.S.C. § 1331. Typically, "a case arises under federal law when federal law creates the cause of action asserted." Gunn v. Minton , 568 U.S. 251, 257, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013). "However, even when a plaintiff has pled only state-law causes of action," a case can still arise under federal law if (1) "federal law completely preempts his state-law claims" or (2) "his state-law claims raise substantial questions of federal law." Dunlap , 381 F.3d at 1290.
Plaintiff asserts claims for intentional infliction of emotional distress, negligent infliction of emotional distress, slander, libel, unauthorized publication of private facts, discrimination, invasion of medical privacy, and deceit. Plaintiff purports to bring each of these claims under state law. Defendants say the Court nonetheless has federal question jurisdiction because (1) federal law completely preempts Plaintiff's claims and (2) Plaintiff's claims raise significant federal issues. The Court disagrees.
1. Complete Preemption
"Complete preemption is a rare doctrine that entirely transforms a state-law claim into a federal claim, regardless of how the plaintiff framed the legal issue in his complaint." Cmty. State Bank v. Strong , 651 F.3d 1241, 1261 n.16 (11th Cir. 2011). "Under complete preemption, the pre-emptive force of a federal statute is so extraordinary that the federal statute wholly displaces the state-law cause of action." Id. "Thus, any complaint raising claims in that area is necessarily federal in character." Id. "Complete preemption occurs when a federal statute both preempts state substantive law and ‘provides the exclusive cause of action for the claim asserted.’ " Dial v. Healthspring of Alabama, Inc. , 541 F.3d 1044, 1047 (11th Cir. 2008) (quoting Beneficial Nat. Bank v. Anderson , 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) ). "The Supreme Court has recognized only three completely preemptive statutes: the Employee Retirement Income Security Act (‘ERISA’), the Labor Management Relations Act (‘LMRA’), and the National Bank Act." Maglioli v. All. HC Holdings LLC , 16 F.4th 393, 408 (3d Cir. 2021) ; see Atwater v. Nat'l Football League Players Ass'n , 626 F.3d 1170, 1176 n.7 (11th Cir. 2010) (same).
Defendants say the Public Readiness and Emergency Preparedness Act ("PREP Act") completely preempts Plaintiff's state law claims. (Dkt. 12 at 1.) The Court disagrees. The PREP Act creates "an exclusive Federal cause of action against a covered person for death or serious physical injury proximately caused by willful misconduct." 42 U.S.C. § 247d-6d(d)(1) (emphasis added). But Plaintiff does not allege death or serious physical injury. And none of her claims require her to do so. She instead asserts causes of action rooted in emotional or reputational harm. So her claims "do not fall within [the] scope of the exclusive federal cause of action," which means "[t]hey are not completely preempted ... [and] they belong in state court." Maglioli , 16 F.4th at 408, 413 (no complete preemption because plaintiff's state negligence claims "do not fall under the PREP Act's narrow cause of action for willful misconduct"); see Dorsett v. Highlands Lake Ctr., LLC , 557 F.Supp.3d 1218, 1229 (M.D. Fla. 2021) ("Most courts ... have concluded that the PREP Act is not a complete preemption statute.").
2. Substantial Federal Issue
The Supreme Court has also recognized "a special and small category of cases" in which "federal-question jurisdiction will lie over state-law claims that implicate significant federal issues." Gunn , 568 U.S. at 258, 133 S.Ct. 1059 ; Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). This jurisdiction is "narrowly construed." Madzimoyo v. The Bank of New York Mellon Tr. Co. , 440 F. App'x 728, 730 (11th Cir. 2011). "The mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction, even where the interpretation of federal law may constitute an element of the state cause of action." Id. "Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Grable , 545 U.S. at 314, 125 S.Ct. 2363. "That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Gunn , 568 U.S. at 258, 133 S.Ct. 1059. "Where all four of these requirements are met, ... jurisdiction is proper because there is a serious federal interest in claiming the advantages thought to be inherent in a federal forum, which can be vindicated without disrupting Congress's intended division of labor between state and federal courts." Id.
Defendants say Plaintiff's claims raise a significant federal question about "the applicability of PREP Act immunity." (Dkt. 12 at 14.) "The PREP Act protects certain covered individuals—such as pharmacies and drug manufacturers—from lawsuits during a public-health emergency." Maglioli , 16 F.4th at 400 ; see 42 U.S.C. § 247d-6d(a)(1). But this immunity is not "necessarily raised" by Plaintiff's complaint because it is "a federal defense." Maglioli , 16 F.4th at 413 ; see Dorsett , 557 F.Supp.3d at 1234 n.8 ("The PREP Act, a statute affording immunity, which is a defense, is neither an essential element to any of Dorsett's claims nor causes Dorsett to raise a stated federal issue in his complaint."). That is, PREP Act immunity is an affirmative defense. And "affirmative defenses do not necessarily arise in suits." Patel v. Hamilton Med. Ctr., Inc. , 967 F.3d 1190, 1195 (11th Cir. 2020). So Defendants’ argument "fails at Grable's first step." Maglioli , 16 F.4th at 413. Indeed, "it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption [or PREP Act immunity], even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue." Caterpillar Inc. v. Williams , 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).
See, e.g., Martin v. Petersen Health Operations, LLC , 2021 WL 4313604, at *11 (C.D. Ill. Sept. 22, 2021) ("Defendant's allegation that the PREP Act gives it immunity is merely an affirmative defense."); Gunter v. CCRC OPCO-Freedom Square, LLC , 2020 WL 8461513, at *3 (M.D. Fla. Oct. 29, 2020) ("Defendants have raised the PREP Act as an affirmative defense.").
Defendants next claim that Counts 5–6 raise a substantial federal issue because both claims refer to the Health Insurance Portability and Accountability Act ("HIPAA"). (Dkt. 12 at 13–14.) Defendants do not include this argument in their notice of removal. And they devote only two sentences to it in their opposition brief (without citing any authority or evidence). (See Dkts. 1; 12 at 13–14). This is insufficient to meet their burden. See Cicero-Berwyn Elks Lodge No. 1510 v. Philadelphia Ins. Co. , 2013 WL 1385675, at *5 (N.D. Ill. Apr. 4, 2013) (removing defendant "has the burden of establishing federal jurisdiction," and "a perfunctory and undeveloped argument does not meet that burden"); Saucedo v. Felbro, Inc. , 2007 WL 4391506, at *3 n.2 (C.D. Cal. Dec. 5, 2007) ("FELBRO did not include preemption of the retaliation claim in its notice of removal as a basis for federal jurisdiction. The Court, therefore, does not consider LMRA preemption with respect to this claim."); see also Classic Soft Trim, Inc. v. Albert , 2021 WL 4935671, at *4 n.1 (M.D. Fla. Feb. 23, 2021) ("A party waives an argument when he or she either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.").
Defendants’ entire HIPAA argument is as follows: "[T]he applicability of HIPAA [is] central to Plaintiff's complaint, forming the basis for Plaintiff's Fifth and Sixth Counts. Although HIPAA provides for no private cause of action, Plaintiff's invocation of it is illustrative of the key questions of federal law giving rise to this action." (Dkt. 12 at 13–14.)
Defendants’ argument also fails on the merits. "HIPAA generally prohibits the disclosure of medical records without a patient's consent." Laster v. CareConnect Health Inc. , 852 F. App'x 476, 478 (11th Cir. 2021). But "no private right of action exists under HIPAA" because the statute explicitly "delegat[es] enforcement authority to the Secretary of the Department of Health and Human Services." Id. Plaintiff acknowledges that fact and does not purport to bring a HIPAA claim. (Dkt. 1-1 at 10.) She simply asserts (in Counts 5–6) that her COVID-19 test results are "private health information" under HIPAA—and that HIPAA provides an "objective standard" of privacy and a "benchmark by which Courts can judge when a person's medical privacy has been violated." (Id. at 10–11.)
This passing reference to HIPAA does not "necessarily raise" a federal issue under Grable . See Madzimoyo , 440 F. App'x at 731 (the fact that plaintiff "referenced federal laws in passing" was not enough); Bollea v. Clem , 937 F. Supp. 2d 1344, 1352–53 (M.D. Fla. 2013) ("Bollea's passing references to his [constitutional] right to privacy do not ‘necessarily raise’ provisions of the United States Constitution."). To necessarily raise a federal issue, a state claim must actually "hinge" on federal law. Diaz v. Sheppard , 85 F.3d 1502, 1506 (11th Cir. 1996) ; see Northside Hosp., Inc. v. Ambetter of Peach State, Inc. , 2017 WL 8948348, at *4 (N.D. Ga. 2017) ) ("A federal issue is necessarily raised where a state-law claim hinges on the adjudication of the federal issue."). That is, federal law must be "essential" and "necessary" to resolve the claim. Gunn , 568 U.S. at 259, 133 S.Ct. 1059 ; Christianson v. Colt Indus. Operating Corp. , 486 U.S. 800, 809–10, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ; see Jairath v. Dyer , 154 F.3d 1280, 1282 (11th Cir. 1998) ("[S]ubstantial question of federal law [must be] a necessary element of a state law cause of action."). It is not enough that federal law is "mentioned only to support an element of [plaintiff's] state law claim." Diaz , 85 F.3d at 1505 (emphasis added). It is not enough that the claim could succeed under "alternative and independent theories—one of which is a state law theory and one of which is a federal law theory." Nevada v. Bank of Am. Corp. , 672 F.3d 661, 675 (9th Cir. 2012) ; see Manning v. Merrill Lynch Pierce Fenner & Smith, Inc. , 772 F.3d 158, 164 (3d Cir. 2014) ("[E]ven if Plaintiffs’ claims were partially predicated on federal law, federal law would still not be necessarily raised."). And it is not enough that "violations of federal law are proof of certain elements of plaintiffs’ [state] claim," at least where "they are not the only proof." Fried v. Sanders , 783 F. App'x 532, 535–36 (6th Cir. 2019). The state claim must "necessarily turn[ ] on some construction of federal law." Madzimoyo , 440 F. App'x at 730 (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) ) (emphasis added).
That is not the case here. Count 5 asserts a Georgia tort known as "public disclosure of embarrassing private facts." Dep't of Lab. v. McConnell , 305 Ga. 812, 828 S.E.2d 352, 359 (2019). Count 6 is ambiguous but, read charitably, might assert a state due process claim for the violation of Plaintiff's constitutional right to medical privacy. Both causes of action require the disclosure of private information, just as HIPAA does. But neither looks to HIPAA to inform the analysis. And Plaintiff need not establish a HIPAA violation to prevail on either count. Indeed, Plaintiff admits HIPAA is nothing more than an "objective standard" and "benchmark" worth considering. (Dkt. 1-1 at 10–11.)
See King v. State , 272 Ga. 788, 535 S.E.2d 492, 494–95, 497 (2000) ("the personal medical records of this state's citizens clearly are protected by" the "constitutional right to privacy arising from the due process clause of this state's constitution"); see also Baker v. Wellstar Health Sys., Inc. , 288 Ga. 336, 703 S.E.2d 601, 604 (2010) ("[T]he substantive right to medical privacy under Georgia [constitutional] law endures."). Count 6 also asserts a discrimination claim, which does not refer to HIPAA.
At most, Plaintiff claims HIPAA's privacy protections are comparable to the privacy protections embedded in her state causes of action—and that if Defendants violated one, they probably violated the other. But it is not at all clear this is true: Plaintiff's state causes of action have their own definitions of privacy, which are not necessarily coextensive with HIPAA's. And, even if it was true, this would preclude —not establish—jurisdiction under Grable because HIPAA would not really add anything to what Plaintiff's state causes of action already do. That is, if they all do the same thing, Plaintiff presumably could establish a violation of one to establish a violation of another—but she need not do so (and there would be little reason for her to try). So Plaintiff's "right to relief for [her] claims under state law does not necessarily depend on resolution of a [HIPAA] issue." Dopson v. Steverson , 772 F. App'x 843, 844 (11th Cir. 2019). That is, Counts 5–6 "can be resolved without deciding whether [Defendants] violated [Plaintiff's] rights ... under federal law." Id. And that means there is no jurisdiction under Grable . See Gunn , 568 U.S. at 259, 133 S.Ct. 1059 (state claim necessarily raises a federal issue if plaintiff "must" address the issue in order "[t]o prevail"); Adventure Outdoors, Inc. v. Bloomberg , 552 F.3d 1290, 1297 (11th Cir. 2008) (no Grable jurisdiction because plaintiff's state claim "can be resolved without applying federal law"); Georgia ex rel. Carr v. Elite Integrated Med., LLC , 533 F.Supp.3d 1303, 1315 (N.D. Ga. 2021) ("[T]he State's right to relief does not depend necessarily on a question of federal law since a jury could find liability on the part of Defendants without finding a violation of the [federal statute].").
The tort of "public disclosure of embarrassing private facts" protects offensive "private, secluded or secret facts" such as "extramarital affairs" and "partially nude photograph[s]." McConnell , 828 S.E.2d at 359, 360 n.7. "[I]f facts are contained in a public record, even though they may relate to matters of personal privacy, they may not be considered ‘private’ for the purposes of this tort." Phillips v. Publ'g Co., Inc. , 2015 WL 5821501, at *14 (S.D. Ga. Sept. 14, 2015). Georgia's due process clause protects "matter[s] which a reasonable person would consider to be private" or information in which a person "has a reasonable expectation of privacy." King , 535 S.E.2d at 495. This includes "a patient's medical information, as reflected in the records maintained by his or her medical providers." Id. HIPAA protects "individually identifiable health information," which includes any information that:
(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and
(i) identifies the individual; or
(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.
42 U.S.C. § 1320d(6) ; see id. § 1230d-6.
The remaining three prongs of the Grable test also preclude jurisdiction here. It is unclear whether Defendants "actually dispute" that Plaintiff's COVID-19 test results are protected under HIPAA or that HIPAA prohibited Defendants from disclosing them. Moreover, Defendants have not shown that the HIPAA issue is "substantial" or that a federal court can resolve it without disrupting the "federal-state balance approved by Congress."
Defendants have not shown the Court has subject matter jurisdiction over Plaintiff's claims. So the Court grants Plaintiff's motion and remands this case to state court.
III. Conclusion
The Court GRANTS Plaintiff's Motion to Remand (Dkt. 7) and REMANDS this case to the State Court of Cobb County.
SO ORDERED this 7th day of January, 2022.