Baker v. Johnson, Civil No. 10-283-GPM.

• Court: United States District Courts. 7th Circuit. Southern District of Illinois
• Writing for the Court: MURPHY
• Citation: 709 F.Supp.2d 677
• Parties: Diane BAKER, et al., Plaintiffs,v.JOHNSON & JOHNSON, et al., Defendants.
• Decision Date: 26 May 2010
• Docket Number: Civil No. 10-283-GPM.

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Diane BAKER, et al., Plaintiffs,
v.
JOHNSON & JOHNSON, et al., Defendants.

Civil No. 10-283-GPM.

United States District Court,
S.D. Illinois.

April 21, 2010.
Opinion Granting Motion for Remand May 26, 2010.

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Christopher F. Cueto, Law Office of Christophert Cueto Ltd., Belleville, IL, for Plaintiffs.

Stephen G. Strauss, Bryan Cave, St. Louis, MO, for Defendants. MEMORANDUM AND ORDERMURPHY, District Judge:I Introduction

This case, which comes to the Court via removal from state court, is before the

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Court sua sponte on the issue of federal subject matter jurisdiction See Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir.2004) (a district court's “first duty in every suit” is “to determine the existence of subject-matter jurisdiction”); Asperger v. Shop Vac Corp., 524 F.Supp.2d 1088, 1091 (S.D.Ill.2007) (quoting Hay v. Indiana State Bd. of Tax Comm'rs, 312 F.3d 876, 879 (7th Cir.2002)) (reviewing sua sponte the allegations of federal subject matter jurisdiction contained in a notice of removal because “[j]urisdiction is the ... power to declare law, ... and without it the federal courts cannot proceed. Accordingly, not only may the federal courts police subject matter jurisdiction sua sponte, they must.”) (citation omitted). Cf. Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir.1986) (“The first thing a federal judge should do when a complaint is filed is check to see that federal jurisdiction is properly alleged.”). In this case some sixty Plaintiffs assert claims for personal injuries allegedly caused by Levaquin, a prescription medication manufactured and distributed by Defendants Johnson & Johnson (“J & J”), Ortho-McNeil Pharmaceutical, Inc. (“Ortho-McNeil”), Johnson & Johnson Pharmaceutical Research & Development, LLC (“J & J Pharmaceutical”), and Janssen Pharmaceutica, Inc. (“Janssen”).¹ Plaintiffs' complaint asserts claims for strict products liability, breach of express and implied warranty, negligence, fraud, negligent misrepresentation, consumer fraud, infliction of emotional distress (both intentional and negligent), wrongful death, and medical monitoring, This case was filed originally in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on February 26, 2010, and has been removed to this Court within thirty days of service of the complaint by J & J, Ortho-McNeil, J & J Pharmaceutical, and Janssen. Federal subject matter jurisdiction is asserted on the grounds that this is an action arising under federal law within the meaning of 28 U.S.C. § 1331 and on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332. For the reasons that follow, the Court orders the parties to this case to show cause why the case should not be remanded to state court for lack of federal subject matter jurisdiction.II. Analysis A. Federal Question Jurisdiction

The Court turns first to the issue of whether this case is within so-called “federal question” jurisdiction. In general, of course, “[t]he district courts shall have original jurisdiction of all civil actions

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arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Defendants contend that because the complaint contains a count alleging negligence per se on the basis of an alleged violation by Defendants of 21 C.F.R. § 201.128, the negligence per se count constitutes a separate and independent claim arising under federal law within the meaning of 28 U.S.C. § 1441(c). Defendants allege further that the negligence per se claim presents a substantial federal question for purposes of federal subject matter jurisdiction. As a rule, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). However, the “substantial federal question” doctrine provides generally that “[e]ven though state law creates [a plaintiff's] cause of action, its case still might ‘arise under’ the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” Franchise Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). The doctrine normally is traced to Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921), in which a plaintiff brought a complaint for injunctive relief in federal court, alleging that a defendant's actions were illegal because they were taken pursuant to an unconstitutional federal statute. See id. at 195-99, 41 S.Ct. 243. The Court held, “[a] case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either, ... and again, when ... the title or right set up by the party, may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction.” Id. at 199, 41 S.Ct. 243.

The substantial federal question doctrine has proven somewhat elusive and has even been pronounced dead on occasion by the lower federal courts. See, e.g., International Armor & Limousine Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912, 915 (7th Cir.2001); Seinfeld v. Austen, 39 F.3d 761, 764 (7th Cir.1994); Dudley v. Putnam Int'l Equity Fund, Civil Nos. 03-852-GPM, 03-853-GPM, 2004 WL 5239426, at *2 (S.D.Ill. Jan. 27, 2004). However, in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), the Court both affirmed the continuing vitality of the doctrine and furnished important guidance as to its application. In Grable the Court addressed what it termed “another longstanding, if less frequently encountered, variety of federal ‘arising under’ jurisdiction, ... having recognized for nearly 100 years that in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues.” Id. at 312, 125 S.Ct. 2363. The Grable Court set out the test for determining whether a “substantial question of federal law” sufficient to warrant removal exists as follows: “[T]he 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.” Id. at 314, 125 S.Ct. 2363. In so doing, the Court emphasized that merely alleging a “federal issue” does not operate “as a password opening federal courts to any state action embracing a point of federal law.” Id. Moreover, since Grable was decided the Court has clarified that “ Grable emphasized that it takes more than a federal

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element ‘to open the ‘arising under’ door,' ” and few cases can be “squeezed into the slim category Grable exemplifies.” Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) (quoting Grable, 545 U.S. at 313, 125 S.Ct. 2363).

In this instance, the meaning of a federal regulation is not in dispute. See Bennett v. Southwest Airlines Co., 484 F.3d 907, 910 (7th Cir.2007) (noting that “a fact-specific application of rules that come from both federal and state law rather than a context-free inquiry into the meaning of a federal law” does not constitute a substantial, disputed question of federal law within the meaning of Grable ). Also, it is apparent to the Court that this is not the type of state-law case that will “rare[ly]” present a question of federal law and thus have “only a microscopic effect on the federal-state division of labor.” Grable, 545 U.S. at 315, 125 S.Ct. 2363. In the Court's experience, state-law claims of which a violation of federal law is an element are routine in cases alleging personal injuries caused by prescription medication, and to treat such cases as arising under federal law would have the effect of shifting virtually every such case from state court to federal court, a massive disruption of the proper balance of power as between state courts and federal courts. As the Grable Court observed,

[E]ven when the state action discloses a contested and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto. For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of [28 U.S.C.] § 1331.... Because arising-under jurisdiction to hear a state-law claim always raises the possibility of upsetting the state-federal line drawn (or at least assumed) by Congress, the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive; there must always be an assessment of any disruptive portent in exercising federal jurisdiction.

Id. at 313-14, 125 S.Ct. 2363. Moreover, the Grable Court recognized that “[t]he violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings.” Id. at 318, 125 S.Ct. 2363. In sum, it is not the case that a finding of federal subject matter jurisdiction in this instance will have only a de minimis effect on state-court jurisdiction. Accordingly, the Court does not believe that it has jurisdiction in this instance pursuant to 28 U.S.C. § 1331.

B. Diversity Jurisdiction

The Court turns to the second basis for federal subject matter jurisdiction asserted by Defendants, diversity of citizenship. In general,...