United States District Court, S.D. Alabama, Southern Division
ORDER
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the plaintiffs' motion to
remand. (Doc. 6). The plaintiffs and two defendants
(collectively, “Kroger”) have filed briefs in
support of their respective positions, (Doc. 7, 11, 13), and
the motion is ripe for resolution. Kroger has also filed a
motion to stay consideration of the motion to remand pending
transfer of this action to the pending multi-district
litigation (“MDL”). (Doc. 10). The plaintiffs
have filed a response and Kroger a reply, (Docs. 14, 39), and
that motion as well is ripe for resolution. After careful
consideration, the Court concludes the motion to stay is due
to be denied and the motion to remand is due to be granted.
BACKGROUND
The 18
plaintiffs operate hospitals in Alabama. The 46 entity
defendants are producers, distributors and retailers (all
pharmacies) of opioids, and the 20 individual defendants are
associated with various of the entity defendants. Kroger is
among the retail pharmacy defendants.
The
plaintiffs filed this lawsuit in the Circuit Court of Conecuh
County. The complaint asserts six causes of action: (1)
negligence; (2) public nuisance; (3) unjust enrichment; (4)
fraud and deceit; (5) wantonness; and (6) civil conspiracy.
(Doc. 1-1 at 299-324). Kroger timely removed, identifying the
bases of subject matter jurisdiction as federal question and
the Class Action Fairness Act (“CAFA”). The
plaintiffs argue that Kroger has failed to demonstrate
jurisdiction under either fount. They further argue that
Kroger has not complied with the unanimous consent
requirement for removal.
DISCUSSION
“On
a motion to remand, the removing party bears the burden of
showing the existence of federal subject matter
jurisdiction.” Connecticut State Dental Association
v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343
(11th Cir. 2009); accord City of Vestavia
Hills v. General Fidelity Insurance Co., 676 F.3d 1310,
1313 n.1 (11th Cir. 2012).
Kroger
suggests the burden is actually on the plaintiff to show the
absence of federal jurisdiction, (Doc. 1 at 5 n.2), but it
misreads Breuer v. Jim's Concrete, Inc., 538
U.S. 691 (2003). Section 1441(a) provides that “any
civil action … of which the district courts of the
United States have original jurisdiction” may be
removed, “[e]xcept as otherwise expressly provided by
Act of Congress.” Breuer holds only that,
pursuant to this statutory language, “whenever the
subject matter of an action qualifies it for removal, the
burden is on a plaintiff to find an express exception.”
538 U.S. at 698. The burden on the plaintiff, then, is only a
burden to find an exception to removal, and that burden
arises only after subject matter jurisdiction has been
demonstrated by the removing defendant.
I.
Motion to Stay.
Before
addressing the motion to remand, the Court must resolve
Kroger's motion to stay consideration of the
plaintiffs' motion. Kroger cites a number of sister
courts that have declined to consider motions to remand prior
to transfer to an MDL court, but Kroger does not acknowledge
this Court's opinions setting forth a framework for
deciding such a motion to stay.
“A
court should first give preliminary scrutiny to the merits of
the motion to remand and, if this preliminary assessment
suggests that removal was improper, the court should promptly
complete its consideration and remand the case to state
court.” Betts v. Eli Lilly and Co., 435
F.Supp.2d 1180, 1182 (S.D. Ala. 2006) (internal quotes
omitted); accord Moton v. Bayer Corp., 2005 WL
1653731 at *2 (S.D. Ala. 2005). The Court derived this
standard from Meyers v. Bayer AG, 143 F.Supp.2d
1044, 1049 (E.D. Wis. 2001). Dozens of sister courts have
adopted or applied Meyers as well, [1] and it has been
described as the majority approach. Dunlap v. General
Motors LLC, 2016 WL 7391049 at *2 (W.D. Mo. 2016).
Kroger presents no reason the Court should abandon its
carefully selected standard in this case, and its arguments
in favor of a stay are fully addressed by the Court's
analysis in Betts. 435 F.Supp.2d at 1182-87.
As
discussed in Parts I and II, federal subject matter
jurisdiction is plainly lacking. This absence of jurisdiction
was immediately obvious on the Court's preliminary
assessment, and the Court therefore proceeds to resolve the
motion to remand. Kroger's motion to stay is therefore
denied.
II.
Federal Question.
The
complaint asserts six causes of action, all of them sounding
in state law. That is not the end of the matter, because
“federal jurisdiction over a state 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 v. Minton, 568
U.S. 251, 258 (2013); accord Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing,
545 U.S. 308, 314 (2005). Kroger argues that the
complaint's claims against the distributor and retail
defendants “require Plaintiffs to establish that
Defendants breached duties established exclusively under
federal law.” (Doc. 1 at 11). Kroger identifies the
relevant federal law as the Controlled Substances Act
(“CSA”) and concludes that “the Complaint
necessarily raises a federal issue: whether the Distributor
Defendants violated the CSA.” (Id. at 12).
The
complaint contains numerous references to the CSA, but that
does not of itself establish that the complaint
“necessarily raise[s]” a federal issue. The
Supreme Court has addressed the meaning of this phrase in the
context of Section 1338(a), which provides for federal
jurisdiction “of any civil action arising under any Act
of Congress” relating to patent and related
intellectual property concepts: “[A] claim supported by
alternative theories in the complaint may not form the basis
for § 1338(a) jurisdiction unless patent law is
essential to each of those theories.”
Christianson v. Colt Industries Operating Corp., 486
U.S. 800, 810 (1988) (emphasis added). Because “Section
1338(a) uses the same operative language as 28 U.S.C. §
1331, … ‘[l]inguistic consistency' requires
us to apply the same test to determine whether a case arises
under § 1338(a) as under § 1331.” Holmes
Group, Inc. v. Vornado Air Circulation Systems, Inc.,
535 U.S. 826, 829-30 (2002) (quoting Christianson,
486 U.S. at 808). Appellate courts have routinely applied
Christianson in the Section 1331
context.[2] Although the plaintiffs relied on this
case in support of their motion to remand, (Doc. 7 at 14-15),
Kroger has failed to acknowledge Christianson or
explain how removal is not defeated by its “alternative
theories” principle.
Kroger
identifies the duties imposed by the CSA and its implementing
regulations, as referenced in the complaint, as duties to
implement effective controls against the diversion of
opioids, to monitor, investigate and report suspicious
orders, and to suspend fulfillment of such orders. (Doc. 1 at
9-10, 11). The Court agrees that the complaint asserts the
existence of such duties imposed by federal law; the question
is whether the complaint pegs the liability of any defendant
under any pleaded cause of action exclusively to the
violation of this federal law.
According
to Kroger, the complaint affirmatively states that it is the
violation of these federally imposed duties that gives rise
to the six asserted causes of action. (Doc. 11 at 12). None
of the paragraphs cited by Kroger remotely support this
proposition. On the contrary, it appears from a review of the
complaint that the duties imposed by the CSA are mentioned
largely to demonstrate how clear those duties - running
parallel to comparable state duties - are and thus to
accentuate how inexcusable was the alleged conduct of these
large entity defendants, which operate on a massive and
typically national scale.
In only
one place does the complaint identify the CSA as a source of
duty underlying an asserted claim. Count One, sounding in
negligence, relies in part on negligence per se, and
one of the statutes, violation of which is alleged to
establish negligence per se, is the CSA. (Doc. 1-1
at 299-302). To that extent, the complaint relies on federal
law to establish negligence. Count One, however, also relies
on Alabama statutes and regulations to establish negligence
per se. ...