Thompson v. Merrell Dow Pharmaceuticals, Inc.
| Decision Date | 15 July 1985 |
| Docket Number | No. 84-3418,84-3418 |
| Citation | 766 F.2d 1005 |
| Parties | Larry James Christopher THOMPSON, et al., Plaintiffs-Appellants, v. MERRELL DOW PHARMACEUTICALS, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
George A. Kokus (argued), Cohen and Kokus, Miami, Fla., Stanley M. Chesley, Waite, Schneider, Bayless and Chesley, Co., L.P.A., Cincinnati, Ohio, Allen T. Eaton, Washington, D.C., for plaintiffs-appellants.
Frank C. Woodside, III (LC) (argued), Cincinnati, Ohio, Christine L. McBroom, Peter N. Perretti, Jr. (argued), Riker, Danzig, Scherer & Hyland, Morristown, N.J., for defendant-appellee.
Before JONES and KRUPANSKY, Circuit Judges, and HULL, Chief District Judge. *
This appeal presents the issue of whether actions filed in state court are properly removable to federal court if the complaints allege in part that the defendant violated the Food, Drug and Cosmetic Act and that this violation constituted "a rebuttable presumption of negligence." Plaintiffs-appellants contend that these cases presented no federal question upon which removal could be properly based. We agree and reverse and remand.
Plaintiffs-appellants, the Thompsons and the MacTavishes, are residents of Scotland and Canada respectively. They filed their complaints against defendant-appellee, Merrell Dow Pharmaceuticals, Inc., in the Court of Common Pleas, Hamilton County Ohio. The complaints alleged that Mrs. Thompson and Mrs. MacTavish ingested Bendectin, a drug developed, produced, manufactured, and sold by Merrell Dow, and that the ingestion of the drug resulted in the birth defects suffered by both Jessica Thompson and Neil MacTavish. Each complaint alleged liability based upon the state-created theories of common law fraud, negligence, strict liability, and breach of warranty. They also alleged that Merrell Dow violated certain provisions of the Food, Drug and Cosmetic Act, 21 U.S.C. Secs. 301-392 (FDCA) and that those violations establish a rebuttable presumption of negligence. Pursuant to 28 U.S.C. Sec. 1441, Merrell Dow removed these actions to the district court where they were consolidated. Plaintiffs filed a motion to remand under Sec. 1447(c) for lack of subject matter jurisdiction. The district court denied plaintiffs' motion to remand and granted Merrell Dow's motion to dismiss on the ground of forum non conveniens. Appellants then filed this appeal.
Removal jurisdiction in a federal district court is premised upon 28 U.S.C. Sec. 1441. Section 1441(a) provides for removal of actions generally, and Sec. 1441(b) limits a defendant's ability to remove actions from a state court to situations where the defendant is not a citizen of the state in which such action is brought. Section 1441(c) permits a district court to determine all issues raised in an action when one claim, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims. The standard for determining when an action is removable is whether the court would have had jurisdiction, subject to the limitations of Sec. 1441(b), if the action had been instituted originally in federal court under 28 U.S.C. Sec. 1331 or Sec. 1332. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 2845, 77 L.Ed.2d 420 (1983). Consequently, a case removed to federal court under the guise of federal question jurisdiction presents a federal question when it "arises under" federal law. In Franchise Tax Board, the Court stated:
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Bendectin Litigation, In re
...question jurisdiction. The trial judge granted defendant's motion to dismiss, but this court reversed, Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). The parties agreed that the FDCA did not create a p......
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Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit
...of remand motions de novo. See, e.g., Miller v. Norfolk & Western Ry. Co., 834 F.2d 556 (6th Cir.1987); Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). B. Artful Pleading Although the district court ack......
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Milan Exp. Co., Inc. v. Western Sur. Co.
...law. Thus, the jury could have easily found the defendant to be negligent, but not in violation of the FDCA. See Thompson v. Merrell Dow, 766 F.2d 1005, 1006 (6th Cir.1985), aff'd, 478 U.S. 804, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986). By contrast, the present plaintiffs have relied exclusive......
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...finding that the causes of action alleged in the complaint did not "arise under" federal law. See Thompson v. Merrell Dow Pharmaceuticals, Inc., 766 F.2d 1005 (6th Cir.1985). After concluding that the FDCA did not, either expressly or impliedly, create a private right of action, the court r......
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