Farag et al v. Health Care Service Corporation, d/b/a Blue Cross Blue Shield of Illinois et al

Filing 38

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 7/5/2017:Civil case terminated.Mailed notice(wp, )

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION TAREK FARAG and SOONA FARAG, Plaintiffs, v. Case No. 17 C 2547 HEALTH CARE SERVICE CORPORATION, d/b/a BLUE CROSS BLUE SHIELD OF ILLINOIS and NOVARTIS PHARMACEUTICALS CORPORATION, Judge Harry D. Leinenweber Defendants. MEMORANDUM OPINION AND ORDER Before the Court are Motions to Dismiss filed by Defendant Novartis Pharmaceuticals Corporation (“Novartis”) [ECF No. 16] and Defendant Health Care Service Corporation d/b/a Blue Cross Blue Shield of Illinois reasons to follow, against Novartis alternatively, (“BCBSIL”) the with under Court No. dismisses prejudice Rule [ECF under 12(b)(6). 15]. Plaintiffs’ Rule Absent For claims 12(b)(1) those the or, federal question claims, the Court declines to hear Plaintiffs’ state law claims Instead, the against BCBSIL Court remands County Circuit Court. or the rule on balance the of latter’s the case Motion. to Kane I. BACKGROUND Plaintiffs Tarek and Soona Farag (referred to collectively as “Plaintiffs” and individually as “Tarek” or “Soona”) have employer-sponsored health insurance coverage through Defendant BCBSIL. (ECF No. 1 at Ex. 1 (“Compl.”) ¶ 1.) Tarek has high blood pressure, and his doctors have tried many medications to treat his condition. (Id. ¶ 4.) All have caused side effects with the exception of the brand-name drug Diovan, manufactured by Defendant Novartis, which Tarek’s doctors “settled on and prescribed for him long before January 2011.” (Ibid.) For a brief tried period “[a]round the beginning of 2013,” Tarek taking the generic form of Diovan (valsartan), but it “caused him serious side effects.” (Id. ¶ 5.) Unsurprisingly, valsartan had a cheaper copay than Diovan, for which Tarek paid $30.00 until around June Diovan to $50.00). 2013 (when BCBSIL increased the copay for Plaintiffs allege that the overall price of a one-month supply of Diovan was about $207 during 2013, $270 during 2014, $310 during 2015, and about “$400 during 2017.” (Id. ¶ 25.) On April 11, 2015, Tarek’s doctor prescribed him twice his usual dose of Diovan. (Compl. ¶ 7.) At some point thereafter, Tarek took medication for numbness in his hands, which caused his blood pressure and heart rate - 2 - to collapse, leading his doctor to advise that Tarek stop taking Diovan and only add it back into his medication regimen as he recovered. (Id. ¶ 8.) On his September 19, 2015, Tarek sought to refill prescription and expected to pay his usual $50 copay. Diovan However, BCBSIL refused to cover it on the same terms it had previously and instead (Id. ¶ 9.) requested “preauthorization” from Tarek’s doctor. Tarek’s doctor completed the required forms, but BCBSIL denied coverage because Tarek had not taken Diovan “for more than 90 days.” (Id. ¶ 10.) As a result, BCBSIL required that Tarek pay $173.11 instead of $50.00. (Id. ¶ 11.) Despite placing several calls to BCBSIL, Tarek was unable to get the company to remedy the situation. (Id. ¶¶ 12-13, 15-17.) On these calls, BCBSIL agents typically justified the denial of coverage on the grounds that Diovan is considered “a Step Therapy medication,” requires preauthorization, is dispensed in prescriptions that are valid only for one year, must be taken “for the past 90 days to qualify for the copay of $50,” and must be precipitated by an attempt to take the generic. (Id. ¶ 27.) Tarek continued taking Diovan and paying the higher rate “with accumulated difference of about $700.” (Id. ¶ 14.) Proceeding pro se, Plaintiffs filed suit against BCBSIL on May 19, 2016 in Kane County Circuit Court. On May 24, 2016, Tarek “was in a very stressful situation due to the ongoing - 3 - court case and the denial of his proper coverage, which caused his blood pressure to go high and fluctuate in a dangerous way that caused him symptoms of a stroke.” (Compl. ¶ 19.) He was rushed to the hospital and, roughly $16,000 later, restored to good health. (Ibid.) in Plaintiffs’ The Kane County court dismissed the claims original complaint without prejudice, and Plaintiffs then filed an Amended Complaint against BCBSIL on October 5, 2016. BCSBIL moved to dismiss the Amended Complaint, and the court obliged – dismissing two claims with prejudice and two claims without prejudice. On March 1, 2017, Plaintiffs amended again, this time adding Novartis as a defendant. This is the operative Complaint. On the basis of federal question jurisdiction over patent and antitrust claims that Plaintiffs brought against Novartis, Defendants removed the Complaint to this Court on April 4, 2017. (ECF No. 1 ¶¶ 3-6.) Both Defendants now move to dismiss all counts. II. LEGAL STANDARD When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Newell Operating Co. v. Int’l Union of United Auto., Aerospace, and Agr. Implement Workers of Am., 532 - 4 - F.3d 583, 587 (7th Cir. 2008). A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Although the Federal Rules of Civil Procedure do not require a complaint to include “detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). To survive a Rule 12(b)(6) motion, “the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Independent Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012) (internal quotation marks omitted). The plausibility standard, while not akin to a probability requirement, “asks for more than a sheer possibility that a defendant has acted unlawfully.” U.S. 662, pleads 678 facts (2009) that are Ashcroft v. Iqbal, 556 (citation omitted). merely consistent Where with a complaint liability, it “stops short of the line between possibility and plausibility.” Id. (internal quotation marks omitted). - 5 - Standing is an essential component of Article III’s caseor-controversy requirement. U.S. 555, 560 (1992). Lujan v. Defenders of Wildlife, 504 Rule 12(b)(1) allows a party to raise by motion a federal court’s lack of subject-matter jurisdiction, including a lack of standing. See, Ret. Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). bears the burden of establishing proof of jurisdictional facts. The plaintiff then jurisdiction with competent Scanlan v. Eisenberg, 669 F.3d 838, 841-42 (7th Cir. 2012). III. A. ANALYSIS Novartis Against Novartis, Plaintiffs seek a judgment for at least $18,000, compensatory attorneys’ fees. damages, punitive damages, costs and They do not seek injunctive relief. According to Plaintiffs, the inventors listed on Novartis’ U.S. Patent No. 6,294,197 (“the ’197 patent”), which covers a tablet form of valsartan “mixed with additives by compression,” are not the same inventors meaning that that Novartis Novartis lauded committed fraud for on inventing the United Diovan, States Patent and Trademark Office (“the PTO”) by listing the wrong inventors on the face of the ’197 patent. (Compl. ¶ 30.) Plaintiffs further allege that, because the “generic drug for Diovan” caused Tarek “serious side effects” whereas Diovan did - 6 - not, Novartis defrauded the PTO by seeking protection for a patent that (it knew) flunked the enablement requirement of 35 U.S.C. § 112(a). (Id. ¶¶ 5, 31.) Plaintiffs claim that – ostensibly through these actions and by emerging from the 1996 merger of “two wrongfully giants “kept Ciba-Geigy others away and from Sandoz” – Novartis manufacturing or has selling Diovan or its generic Valsartan” and “unlawfully monopolize[d] the market for Diovan,” allowing it to charge higher prices for Diovan than generic drug manufacturers charge for valsartan. (Id. ¶¶ 30, 33.) Without claims, citing Plaintiffs any provision bring three of law counts authorizing against their Novartis: “fraudulently claiming that Novartis’ team is the inventors of Diovan,” “fraudulently claiming that it has patent protection for Diovan and monopolizing it,” and “violating the antitrust laws and abusing of [sic] monopoly power.” The Court finds these counts best (Compl. ¶¶ 30-32.) characterized as a Walker Process claim based on fraudulent procurement of the ’197 patent and its subsequent unlawful monopolization under Section 2 of the Sherman Act, 15 U.S.C. § 2, plus a claim under Section 7 of the Clayton Act, 15 U.S.C. § 18, challenging the merger that spawned Novartis as “obvious[ly] . . . against the antitrust laws.” (Compl. ¶ 33.) (To the - 7 - extent Plaintiffs might be seeking relief under the Illinois Antitrust Act, 740 Ill. Comp. Stat. 10/3, it is preempted inasmuch as it relates to the Walker Process claim. Because there is “simply no theory for proving a Walker Process antitrust violation in this case that would not require a showing of misconduct before the PTO,” “federal patent law preempts any state antitrust cause of action premised on [such] conduct before the PTO.” In re Ciprofloxacin Hydrochloride Antitrust Litig., 363 F.Supp.2d 514, 543 (E.D.N.Y. 2005); see also, Semiconductor Energy Lab. Co., Ltd. v. Samsung Elec. Co., Ltd., 204 F.3d 1368, 1382 (Fed. Cir. 2000) (finding preemption where “the wrong alleged and for which state tort damages [were] sought [was] no more than bad faith misconduct before the PTO”); accord, In re K-Dur Antitrust Litig., No. 011652, 2007 WL 5297755, at *24-25 (D.N.J. Mar. 2, 2007).) Novartis both on moves Rule to dismiss 12(b)(1) Plaintiffs’ subject-matter counts against jurisdiction it and Rule 12(b)(6) plausibility grounds. Novartis maintains that the Court to does requested not relief have jurisdiction because neither grant Plaintiff Plaintiffs has their standing to challenge the validity or enforceability of the ’197 patent – or any patent Novartis holds on Diovan. In the same vein, Novartis asserts that Plaintiffs lack antitrust standing and that their complaint fails to allege a plausible monopolization violation - 8 - under federal or state antitrust law. Finally, Novartis contends that Plaintiffs’ claim for damages is time-barred. 1. Declaratory Judgment of Invalidity or Unenforceability Article III of the Constitution requires an actual “case” or “controversy” between litigating parties before a court may adjudicate a dispute. A party may bring an action under the Declaratory Judgment Act only if an “actual controversy” exists, “which is the same as an Article III case or controversy.” Arris Group, Inc. v. British Telecomms. PLC, 639 F.3d 1368, 1373 (Fed. Cir. declaratory 2011) (citations judgment must omitted). show an The party Article III seeking case controversy at the time it filed for declaratory relief. a or Id. at 1373 (citing King Pharm., Inc. v. Eon Labs., Inc., 616 F.3d 1267, 1282 (Fed. Cir. 2010)). When the underlying merits of the declaratory judgment action involve issues of conduct before the PTO, Federal Circuit law controls whether an actual controversy exists. 3M Co. v. Norton Co., 929 F.2d 670, 672 (Fed. Cir. 1991). This Court must ask whether “the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, - 9 - 132 n.11 relief (2007). through A a proper dispute decree of a must “admit conclusive of specific character, as distinguished from an opinion advising what the law would be upon a hypothetical state quotation marks omitted). insufficient to create of facts.” Id. at 127 (internal “A mere adverse economic interest is declaratory judgment jurisdiction.” Arris, 639 F.3d at 1374-75 (emphasis in original). Plaintiffs’ interest in having the ’197 patent declared invalid or unenforceable is adverse to Novartis’ interest only in a pure economic sense, and is thus far too attenuated to support jurisdiction under the Declaratory Judgment Act. At best, securing such a judgment would merely inhibit Novartis from excluding competitors, thus leading indirectly decrease in the price of Diovan for Tarek. Circuit law suggests that purchasers of to a Indeed, Federal goods covered by a patent who do not compete with the patentee and otherwise face no threat of an action for infringement “cannot challenge [the] patent’s validity judgment action.” or enforceability through a declaratory Ritz Camera & Image, LLC v. SanDisk Corp., 700 F.3d 503, 506 (Fed. Cir. 2012). The extent Court they therefore can be dismisses construed as - 10 - Plaintiffs’ a plea for claims a to the declaratory judgment that the ’197 patent is invalid or unenforceable as a result of fraud on the PTO. 2. Walker Process Antitrust Action As the Court lacks subject-matter jurisdiction to issue a declaratory alleged judgment, misconduct Plaintiffs’ before the claims PTO relying resemble on Novartis’ antitrust claims under Walker Process Equip., Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174 (1965) (“[T]he enforcement of a patent procured by fraud on the Patent Office may be violative of § 2 of the Sherman Act provided the other elements necessary to a § 2 case are present.”). Walker Process allows a plaintiff to strip a patent holder of its exemption from the antitrust laws if its claimant patent may was procured otherwise by lack fraud. Id. entitlement at 177. to a (That a declaratory judgment remedy does not preclude Walker Process relief. See, Ritz Camera, 700 F.3d at 506.) a. The standing Court to must bring a first Walker Standing determine Process whether claim, Plaintiffs as each of have their counts invokes Novartis’ alleged fraudulent conduct in procuring the ’197 patent. As a question ancillary to patent matters, antitrust standing turns on regional circuit law. See, Shuffle Tech Int’l, LLC v. Scientific Games Corp., No. 15 C 3702, 2015 - 11 - WL 5934834 at *9 (N.D. Ill. Oct. 12, 2015). The Seventh Circuit has not determined whether end users of patented products who did not purchase them from the patentee have standing to assert a Walker Process claim. Courts in the Second, Third, and Ninth Circuits have engaged the issue at some length and, even viewed in the light most favorable to Plaintiffs, they lack standing under those cases to pursue a Walker Process claim. First, Novartis’ patent is not “already tarnished” by a finding of inequitable conduct. Antitrust Litig., 585 F.3d In re DDAVP Direct Purchaser 677, 691-92 (2d Cir. 2009) (conferring antitrust standing on purchaser plaintiffs to pursue Walker Process claim because the patents at issue were “already unenforceable due to inequitable conduct”). Rather, Plaintiffs are seeking to litigate the inequitable conduct issues in tandem with their Walker Process antitrust claim. Thus, Plaintiffs do not fall within DDAVP’s conferral of standing on Walker Process claimants suing on patents found previously to have been Diovan from procured by fraud. Nor Novartis. 772 Plaintiffs direct purchasers of See, e.g., Ritz Camera & Image, LLC v. SanDisk Corp., F.Supp.2d purchasers claim are had alleging 1100 (N.D. standing that to Cal. 2011) bring manufacturers - 12 - (finding Sherman of Act flash that direct monopolization memory devices enforced fraudulently obtained patents), aff’d, Ritz Camera, 700 F.3d 503 (Fed. Cir. 2012); Molecular Diag. Labs. v. HoffmanLaRoche, Inc., 402 F.Supp.2d 276, 282 (D.D.C. 2005) (“[D]irect purchasers have standing to pursue Walker Process claims.”). Rather, pharmaceutical companies like Novartis typically provide their manufactured drugs to wholesalers or distributors, who then furnish them to pharmacies, who in turn dispense them to patients like Tarek. Accordingly, Plaintiffs are indirect purchasers with respect to Novartis, and courts confronted with such situations decline to find Walker Process standing. See, e.g., In re K-Dur Antitrust Litig., 2007 WL 5297755, at *18 (“If this Court were to conclude that indirect purchasers had standing to bring Walker Process claims, it would turn antitrust policy on its head, and extend antitrust standing to an extraordinary level[.]”); In re Ciprofloxacin, 363 F.Supp.2d at 542 (holding that non-infringing consumers of patented products complaining of supracompetitive prices have no cause of action to invalidate the patent). Nonetheless, the Federal Circuit in Ritz Camera made clear that Walker Process standing should be interpreted in light of regional circuit law on antitrust standing. Camera, 700 F.3d at 506-07. See, Ritz As such, the Court examines the question more closely in view of Seventh Circuit law that a - 13 - private plaintiff, to have antitrust standing, must plausibly allege (1) that it suffered an antitrust injury and (2) that it is an acceptable actions. plaintiff to pursue the alleged antitrust See, Gatt Commc’ns, Inc. v. PMC Asscs., LLC, 711 F.3d 68, 76 (7th Cir. 2013). 1. Antitrust injury Plaintiffs fail to allege a cognizable antitrust injury. First, the Complaint clearly states that at least one form of generic valsartan is available on the market. As such, to the extent Novartis has market power, it is not maintaining it by erecting (insurmountable) barriers to generic entry. Second, the injured gravamen Plaintiffs of by the Complaint charging higher is that prices Novartis (to direct has purchasers, indirectly leading to higher copays) than generic manufacturers charge for generic valsartan. Standing alone, this is hardly revelatory and fails to clear the Twombly hurdle: A brand-name drug’s higher prices are equally consistent (if not more so) with unilateral exercise of individual market power, which does not violate the antitrust laws. F.3d 608, 610 (7th Cir. violate the Sherman Act: whatever the traffic 2006) See, Schor v. Abbott Labs., 457 (“The price of Norvir cannot a patent holder is entitled to charge will bear.”); - 14 - accord, In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 786-87 (7th Cir. 1999). Thus, Seventh Circuit law suggests that the harm Plaintiffs complain of is not a cognizable antitrust injury. 2. Acceptable plaintiff The Court finds further that Plaintiffs are not a proper antitrust Novartis. tests to antitrust plaintiff to bring a Walker Process claim against Although federal courts have devised a panoply of determine whether plaintiff, two an bear injured particular party is relevance a proper for the analysis here. First, Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), limits damages actions under Section 4 of the Clayton Act to direct purchasers. Id. at 735. As indirect purchasers (who purchased Diovan at pharmacies or through intermediary health plans), Plaintiffs have no cognizable Clayton Act damages claim based on charges passed on to them. that direct purchasers of Diovan may have (See, Section III.A.3.a.1, infra.) Second, and more specific to Sherman Act claims, is the balancing test in Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 536-45 (1983). There, the Supreme Court crafted a multi-factor “direct injury” barometer of whether the plaintiff is a proper party to bring a - 15 - private antitrust action. These factors are (1) the causal connection between the violation and the harm; (2) the presence of improper motive; (3) the type of injury and whether it was one Congress sought to redress; (4) the directness of the injury; (5) the speculative nature of damages; and (6) the risk of duplicate recovery and complex damage apportionment. Loeb Indus., Inc. v. Sumitomo Corp., 306 F.3d 469, 484 (7th Cir. 2002) (citing Associated Gen., 459 U.S. at 537-45). As applied to Plaintiffs’ factors are left wanting. Complaint, too many of these Plaintiffs do allege in the barest terms possible an improper motive on the part of Novartis with respect to conduct before the PTO, but their allegation of its improper motive (“greed”) in charging higher prices for Diovan than generic manufacturers charge for valsartan is of dubious sufficiency motive. – particularly because greed See, Schor, 457 F.3d at 610. is not an unlawful As mentioned previously, the causal connection is loose, the directness of the injury oblique. Further, the damages are speculative; Plaintiffs cannot with a straight face claim that brand-name drugs should cost the same as generics, meaning that “to obtain damages the plaintiffs would have to separate the price effects of [unlawful monopoly activity] from the price effects of the defendant[‘]s lawful market power.” Brand Name Prescription Drugs, 186 F.3d - 16 - at 786 (citing Blue Cross & Blue Shield United of Wisc. v. Marshfield Clinic, 152 F.3d 588, 593-94 (7th Cir. 1998)). also seems a risk apportionment, of duplicate because more recovery direct and complex purchasers as There damages well as insurance carriers pay a significant portion of any unlawfully supracompetitive prices that Novartis might be found to charge. Working within this “direct injury” framework, recent Seventh Circuit cases have found that indirect purchasers lack antitrust standing. For example, where consumers of aluminum- containing products brought an antitrust action against aluminum manufacturers, the court held that such indirect purchasers were not participants in the aluminum market merely “by creating a demand for aluminum.” In re Aluminum Warehousing Litig., 833 F.3d 151, 161-62 (7th Cir. 2016). similarly alleged were not a “necessary anti-competitive distribution chain” and step” conspiracy, “purely in but Antitrust Their injuries carrying incidental,” as the “down instead out the the alleged scheme would have been just as effective from the defendants’ point of view if direct purchasers paid supracompetitive prices without passing that cost on to consumers. Id. at 162. The same is true in this case. Plaintiffs cannot claim to be participants in the Diovan market merely because Tarek, by having high blood pressure (and experiencing side effects from valsartan), creates - 17 - demand for Diovan. Novartis did not need to injure indirect purchasers like Tarek for the alleged monopolization to work; all it requires is for Novartis’ direct purchasers – namely, drug wholesalers irrespective of or distributors whether they - to would pay pass monopoly that prices, cost on to pharmacies, or pharmacies to ultimate consumers. Even if Plaintiffs they are suffered unlikely a under cognizable Seventh antitrust Circuit injury, precedent to qualify as proper antitrust plaintiffs, as they have only an indirect nexus to the alleged monopoly. * * * Although it appears to be a matter of first impression in this Circuit, the Court holds that Walker Process does not confer standing on a party whose only connection to the patentee is as an indirect purchaser of products covered by the patent. Novartis’ Rule 12(b)(1) Motion is granted in relevant part. b. Fraud on the PTO Even if Plaintiffs do have standing to bring their Walker Process count, their Complaint fails to state a claim on which relief can be granted. Showing fraud on the PTO under Walker Process requires evidence that: (1) the patent at issue was procured fraud by knowing or willful on the PTO; (2) the defendant was aware of the fraud when enforcing the patent; (3) - 18 - the defendant clearly intended to deceive the examiner; (4) the patent would not have issued but for the misrepresentation or omission. See, Nobelpharma AB v. Implant Innovations, Inc., 141 F.3d 1059, 1068-71 (Fed. Cir. 1998); accord, C.R. Bard, Inc. v. M3 Sys., Inc., 157 F.3d 1340, 1364 (Fed. Cir. 1998). plausible claim under Walker Process that To state a Novartis committed fraud on the PTO, Plaintiffs must therefore adequately allege these elements under Federal Circuit law. See, Dippin’ Dots, Inc. v. Mosey, 476 F.3d 1337, 1346 (Fed. Cir. 2007) (citation omitted). claims, In addition, because Walker Process claims are fraud Plaintiffs must requirements of Rule 9(b). 427 F.3d 958, 967 (Fed. meet the heightened pleading Medimmune, Inc. v. Genentech, Inc., Cir. 2005) (“Like all fraud-based claims, Walker Process allegations are subject to the pleading requirements of Fed. R. Civ. P. 9(b).”), rev’d and remanded on other grounds, 549 U.S. 118 (2007). However, Plaintiffs utterly fail to identify any references or statements plausibly meet made the to or withheld Walker Process Rule 9(b)’s required specificity. from the PTO elements – that could let alone First, Plaintiffs claim that the inventors of the ’197 patent were incorrectly named based on an August 24, 2000 Novartis press release naming different individuals as the “inventor of Diovan(R) (valsartan) and his - 19 - research team.” (Compl. at Ex. A2.) Novartis maintains, however, that the much earlier U.S. Patent No. 5,399,578 (“the ’578 patent”) covers the valsartan compound and lists the same inventors referenced Plaintiffs admit in that the the Novartis ’197 press patent release. does not Even cover the “invention” of valsartan or Diovan but, on the other hand, is directed to compression “solid methods expressly in patent at U.S. dosage (Compl. discloses described oral that patent 2:53-55.) (In ¶ [of 32). “[t]he valsartan] Indeed, preparation specification ruling the on a No. of formed ’197 motion patent valsartan 5,399,578.” to by is (’197 dismiss for failure to state a claim, the Court may consider documents, like the ’197 patent, that are referred to in the Complaint, as well as facts readily ascertainable from sources reasonable dispute, such as the ’578 patent. not subject to See, Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013); Ennenga v. Starns, 677 F.3d 766, 773 (7th Cir. 2012).) That the individuals identified in the Novartis press release as the inventors of Diovan/valsartan are not listed as inventors of the ’197 patent gives rise to no reasonable inference in Plaintiffs’ favor. Second, Plaintiffs nod toward a patent issued to HoffmanLaRoche, Inc., U.S. Patent No. 5,696,116 (“the ’116 patent”), claiming that Novartis knew its press release was false because - 20 - the ’116 patent compound to application was treat was the high filed first to blood on July disclose pressure. 12, valsartan The 1994, as ’116 claimed a a patent foreign priority date of July 15, 1993, and issued on December 9, 1997. (Compl. ¶ 20.) However, the ’578 patent application disclosing the preparation of a valsartan compound was filed December 29, 1992, claimed a foreign priority date of February 19, 1990, and was issued March 21, 1995. To the extent the ’116 patent is relevant to Plaintiffs’ Walker Process fraud allegations at all, it offers no support for the allegation that Novartis knew its scientists were not the true inventors of Diovan and somehow committed fraud on the PTO in applying for the ’197 patent. Finally, taking based valsartan on side that he effects does not Tarek experienced experience while while taking Diovan, Plaintiffs allege that Novartis “knew that the patent protection for Diovan was enablement requirement. “contain written a invalid” Every description of for failure patent the to meet specification invention, and the must of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with connected, to make and use the same.” which it is most nearly 35 U.S.C. § 112(a). Yet an individual’s experiencing side effects when taking a generic - 21 - drug but not the associated brand-name drug, standing alone, lends no plausibility to an enablement invalidity argument. Even assuming manufactured that precisely the valsartan according to Tarek the took ’197 was patent’s disclosures – something Plaintiffs do not allege - there are far too many independent factors that could explain Tarek’s side effects and are exceedingly more plausible than impugning the ’197 patent’s written description. version rationale may be for Prescription produced under trademarks)” Drugs, 186 For example, “the branded better than the at 787. F.3d quality control (the generic. Brand Name For another, varying absorption rates between the generic and the brand-name drug may account for differing side effects. See, e.g., IMS Health, Inc. v. Sorrell, 630 F.3d 263, 267-68 (2d Cir. 2010) (“Bioequivalent generic drugs are not necessarily identical to the brand name version, but are required to demonstrate an absorption between 80 and 125 percent of the brand-name drug. rate Variations in absorption rates among branded or generic drugs may cause different reactions, such as side effects.”), aff’d, 564 U.S. 552 (2011). Regardless of whether valsartan side effects bear on the sufficiency of the ’197 patent’s written description, the first salient question for Walker Process purposes would be some knowledge on the part of Novartis concerning the ’197 patent’s - 22 - shortcomings during its prosecution – something Plaintiffs do not even allege generally. Thus, the Complaint lacks plausible allegations that the ’197 patent fails to meet the enablement requirement or that Novartis did anything unlawful at all in that respect. Plaintiffs fail to allege any of the required substantive elements of fraud on the PTO – to say nothing of Rule 9(b)’s requirement that Absent other any these allegations basis for be their pled claim with that specificity. Novartis made fraudulent statements to the PTO regarding the ’197 patent, the Complaint does not implicate any of the required Walker Process elements. the Plaintiffs’ fraud counts against Novartis thus flunk plausibility standard, and the Court grants Novartis’ Rule 12(b)(6) Motion in relevant part. c. As a final basis Time-Barred Recovery for dismissal, the Court finds that Plaintiffs’ Walker Process claim is barred by the statute of limitations. Generally, a federal antitrust claim that accrues more than four years prior to a plaintiff’s suit is time-barred. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971). generally While begins the running four-year when the statute of allegedly limitations fraudulently procured patent issued, see, Brunswick Corp. v. Riegel Textile - 23 - Corp., 752 F.2d 261, 268 (7th Cir. 1984), the situation may well be different where a purchaser plaintiff who is not a business competitor of the defendant merely claims to have paid supracompetitive prices for a product covered by the patent. See, e.g., In re: Evanston Northwestern Healthcare Corp. Antitrust Litig., No. 07 C 4446, 2016 WL 4720014, at *8-9 (N.D. Ill. Sept. 9, 2016) (citing Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 295 (2d Cir. 1979)). of action for illegal monopolization In such cases, a cause under Section 2 of the Sherman Act may accrue once a purchaser plaintiff actually pays the supracompetitive price. Berkey, 603 F.2d at 295. Under the general rule, Plaintiffs’ Walker Process claim is unquestionably time-barred. Plaintiffs readily admit that the patent issued on September 25, 2001 (Compl. ¶ 22), meaning that the statute of limitations on their Walker Process claim expired on September 25, 2005. Novartis until However, even March the They did not file their claims against 1, 2017 more – lenient nearly Berkey purchaser plaintiffs is of no avail here. that Tarek’s doctor began a prescribing dozen years accommodation late. for The Complaint alleges Diovan “for him long before January 2011,” which he took without interruption until “[a]round the beginning of 2013,” when he first tried generic valsartan. (Compl. ¶¶ 4-5.) The only prices Tarek was paying - 24 - for Diovan health (in the benefit form plan of a copay premiums or, potentially, associated with higher his Diovan prescriptions) he was paying well before March 1, 2013 – and thus his cause of action accrued before then, barring on statute-of-limitations grounds Plaintiffs’ March 1, 2017 Walker Process claim against Novartis. Ostensibly concealment Copper to to the the statute toll Antitrust Plaintiffs invoke Litig., nakedly 436 assert discovery of F.3d that or limitations, 782, they rule 789 “could see, (7th not fraudulent In Cir. 2006), find out re how Novartis monopolized Diovan until July 12, 2014.” (Compl. ¶ 24.) No detail is provided about what Plaintiffs learned on this date and why whatever they it could was. not In reasonably fact, many of have the earlier discovered allegations in the complaint undercut the notion that there was any concealed or undetectable injury resulting from Novartis’ alleged wrongful exclusion of others from the market or extraction from Tarek of “an extremely high price” for Diovan. (Compl. ¶ 30.) For example, the ’197 patent application and the August 24, 2000 Novartis press release, both of which form the basis for Plaintiffs’ Walker Process claim, were matters of public record. Further, Tarek was aware by “the beginning of 2013” of facts - 25 - undercutting any claim that Novartis had monopolized the relevant market, as he was taking generic valsartan then. Striding further down the rabbit hole, the Court notes that the Walker discovery Process rule did claim apply would to be toll time-barred the statute even of if the limitations until Plaintiffs knew or reasonably should have known that the prices paid for Diovan were supracompetitive. explicitly defined their injury as their Plaintiffs have Diovan exceeded those charged for generic valsartan. copays that Yet Plaintiffs allege that “around the beginning of 2013,” Tarek tried to use generic valsartan and “[a]t that time” his “copay for Diovan was $30 and BCBS was paying $176.61, while he paid $12.6 for the generic and BCBS paid $0.0.” (Compl. ¶ 5.) He thus became aware of the complained-of disparity in price more than four years prior to March 1, 2017 Diovan copay to $50). (although BCBSIL later increased his (It is not reasonable to infer that “the beginning of 2013” encompasses a date after March 1, 2013, and any uncertainty concerning the exact time at which Tarek discovered the disparity in copays flows from Plaintiffs’ own imprecise allegations. See, e.g., Morrison v. Int’l Union Sec., Police, and Fire Professionals of Am., No. 13 C 1146, 2013 WL 5274280, at dismiss with *4 (D. Md. prejudice Sept. 16, because - 26 - 2013) the (granting plaintiff’s motion to “imprecise allegations” that harassment “occurred [continuously] throughout or during occurred 2012” did within” “not the satisfy the six-month Court statute that of any breach limitations); Farbstein v. Hicksville Pub. Library, 323 F.Supp.2d 414, 421 (E.D.N.Y. 2004) (“Plaintiff refers generally to events that occurred in the four year period prior to initiation of this lawsuit. . . . Thus, these imprecise allegations are ineffective, as framed, to rescue Plaintiff’s . . . claims from the [three-year] statute of limitations.”).) For the sake of completeness, the Court notes that the continuing violation exception to the statute of limitations in antitrust actions is of no avail here either. Corp., 401 U.S. at 338. See, Zenith Radio That exception allows an antitrust defendant’s “overt act” to restart the statute of limitations, which act “‘must be a new and independent act that is not merely a reaffirmation of a previous act’” and “‘must inflict new and accumulating injury on the plaintiff.’” Xechem, Inc. v. Bristol-Myers Squibb Co., 274 F.Supp.2d 937, 944-45 (N.D. Ill. 2003) (quoting Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 406 (6th Cir. 1999)). such an prices overt in act. excess of Plainly, this case does not involve Continuing those to charged charge for direct generic purchasers valsartan is merely reaffirming prior pricing acts, much like the filing of - 27 - repeated infringement lawsuits that “did nothing more than reaffirm” prior efforts to block the same competitor from the market. Xechem, 274 F.Supp.2d at 945. More specifically, price increases are generally not considered overt acts, see, e.g., Z Techs. Corp. v. Lubrizol Corp., 753 F.3d 594, 600-601 (6th Cir. 2014), as opposed to, for example, “a series of ongoing meetings to correct a cartel and adjust its prices.” Areeda & Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, ¶ 320 (3d ed. 2007) (“If the mere charging of a monopoly price constitutes a ‘continuing violation’ tolling the statute, then we have indefinitely lengthened the statute of limitation on claims of successful monopolization.”) (internal quotation marks and citation omitted). And even if bare price increases were overt acts, Plaintiffs’ only specific allegation of a price increase that affected them is BCBSIL’s increase of Tarek’s copay to $50 “[a]round June 2013” (Compl. ¶ 6), passing on more of the cost of Diovan to consumers. This is not an overt act of Novartis. For the foregoing reasons, Novartis’ Rule 12(b)(6) Motion is granted in relevant part. 3. Antitrust Violation of Section 7 of the Clayton Act In their third count, Plaintiffs allege that the “December 1996” merger of “two giants Ciba-Geigy - 28 - and Sandoz,” which spawned Novartis, “resulted in a very harmful monopoly and price increase, which is against the antitrust laws.” 33.) (Compl. ¶¶ 21, The Court charitably construes this as a claim brought under Section 4 for a violation of Section 7 of the Clayton Act, which is the principal federal antitrust statute concerning mergers and acquisitions, stock purchases, and joint ventures. It prohibits acquisitions, both direct and indirect, the effect of which “may be substantially to lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18. As with Sherman Act claims, if a party seeks to sue a putative section 7 violator, it must commence its enforcement action “within four years after the cause of action accrued,” or the enforcement action “shall be forever barred.” 15 U.S.C. § 15b. reasons already explored, these However, for many of the allegations fail to state a plausible claim. a. 1. Antitrust Standing Proper antitrust plaintiff With respect to antitrust standing under the Clayton Act, Plaintiffs purchasers better are – such situated lawsuit. indirect as under drug purchasers of wholesalers Illinois Brick or to Diovan, and distributors bring a direct - are Clayton Act See, Illinois Brick, 431 U.S. at 737-42 (holding that only overcharged direct purchaser, and not others in chain of - 29 - manufacture or distribution, is party “injured in his business or property” within meaning of Clayton Act). Although the Illinois Antitrust Act appears to permit indirect purchasers to sue for antitrust violations, 740 Ill. Comp. Stat. 10/7(2) (“No provision of this act shall deny any person who is an indirect purchaser the right to sue for damages.”) – potentially making Plaintiffs’ merger proper under parties state law - to challenge the federal the Ciba-Geigy/Sandoz pleading standards and statute of limitations otherwise mirror those governing claims under the Illinois Antitrust Act. See, e.g., 740 Ill. Comp. Stat. 10/7 (“Any action for damages under this subsection is forever barred unless commenced within 4 years after the cause of action accrued.”); id. at 10/11 (“When the wording of this act is identical or similar to that of a federal antitrust law, the courts of this State shall use the construction of the federal law by the federal courts as a guide in construing this Act.”); Hackman v. Dickerson Realtors, Inc., 520 F.Supp.2d 954, 968 (N.D. Ill. 2007) (“[T]he pleading requirements of the Sherman Act inform the pleading requirements under the Illinois Antitrust Hosp., 550 interpret Act.”) N.E.2d the (citations 986, Illinois 990 omitted); (Ill. Antitrust 1990) Act antitrust law upon which it is modeled). - 30 - Laughlin (holding in light v. Evanston that of courts federal Thus, all the other deficiencies explored herein leave Plaintiffs high and dry on any cognizable state-law challenge to the merger as well. 2. With standing, Novartis respect to Plaintiffs used its Antitrust injury the fail patent antitrust to state monopoly injury a necessary plausible (presumed for claim valid Clayton Act claim) unlawfully in the relevant market. that for the Not only does the Complaint admit the existence of at least one generic valsartan manufacturer – and this during times that preceded expiration of the ’197 patent by several years – but the mere allegation that Diovan has steadily increased in price is just as consistent (if not more so) with the rights Novartis enjoys by virtue of its immunized patent monopoly. (See, Section III.A.2.a.1, supra.) b. Moreover, although Time-barred Recovery Clayton Act claims for violation of Section 7 may accrue later, the four-year statute of limitations generally begins to run as soon as the acquisition takes place. See, United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 598 (1957). As the merger Plaintiffs appear to challenge occurred over twenty years ago, quite clearly the statute of limitations has run under the default rule. For a merger that produced anticompetitive effects only post-merger, the statute - 31 - of limitations begins to run not when the merger transpired, but when the injury occurred. E.I. du Pont, 353 U.S. at 597-98. In the words of the Seventh Circuit, “old activity (as in du Pont, a stock acquisition preceding the suit by 30 years) is not immunized, if the potential for a reduction in output is created or realized more recently as market conditions change.” U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 628 (7th Cir. 2003). Yet Plaintiffs’ claims are time-barred regardless of the theory invoked to delay accrual. The Clayton Act’s prohibition on anticompetitive acquisitions regulates injuries arising out of “holding as well as obtaining assets,” U.S. v. ITT Cont’l Banking Co., 420 U.S. 223, 240, 242 (1975), leading many courts to christen the theory for delaying the accrual date for such injuries the “hold-anduse doctrine.” In (citations omitted). re: Evanston, 2016 WL 4720014 at *12 As such, subsequent anticompetitive acts committed by the merger enterprise may be dated “from the time these events actually transpired and not only from the date of the mergers which made these actions possible.” Julius Nasso Concrete Corp. v. Dic Concrete Corp., 467 F.Supp. 1016, 1023 (S.D.N.Y. 1979). However, for the hold-and-use doctrine to apply, a plaintiff must show – and thus must at least plead facts supporting a plausible inference – that the conduct was - 32 - made possible by the acquisition. 2016 WL 4720014 at *13; See, e.g., In re: Evanston, Julius Nasso, 467 F.Supp. at 1023. There are no such allegations here, and Ciba-Geigy or Sandoz on their own could have done precisely what Novartis allegedly did – patent increase a drug and during distinguished unilaterally the from term the of institute the situation a in, for price monopoly. patent steady As example, In re: Evanston – where health care providers in a certain geographic area merged and supracompetitive then pricing later policy instituted for services an – alleged unilaterally increasing the price of a brand-name drug is within the ambit of a lawful patent monopoly. See, e.g., Schor, 457 F.3d at 610; Brand Name Prescription Drugs, 186 F.3d at 786-87. Even cause of if the action hold-and-use would have doctrine accrued applied, at the time instituted its supracompetitive pricing policy. Evanston, 2016 WL 4720014, at *13. Plaintiffs’ Novartis See, In re: Although Plaintiffs provide data about price increases from 2013 through 2107 – that is, within the window of the four-year statute of limitations – they do not allege that Novartis kept the price of Diovan constant (or only increased it in proportion to, say, the consumer price index) prior Novartis, to after 2013. securing It is its not ’197 - 33 - reasonable patent to monopoly infer in that 2001, waited until 2013 to increase Diovan prices under an allegedly supracompetitive pricing policy enabled by the 1996 merger. such, even applying the hold-and-use doctrine to As Plaintiffs’ allegations does not bring their challenge to the merger within the four-year statute of limitations. Next, Plaintiffs have no recourse here to the continuing violation doctrine, which does not apply to alleged violations of section 7 of the Clayton Act. Lubrizol Corp., 753 F.3d 594, See, e.g., Z Techs. Corp. v. 599, 604-05 (6th Cir. 2014); Midwestern Machinery Co., Inc. v. Northwest Airlines, Inc., 392 F.3d 265, 270-71 (8th Cir. 2004); accord, Shuffle Tech, 2015 WL 5934834, at *13-14. And even if it did, in the absence of an overt act (see, Section III.A.2.c, supra), “the doctrine would only at best allow [plaintiffs] to reach back to when [they were] first injured by the anticompetitive effects of the merger – that is, when [plaintiffs] paid [defendant’s] supracompetitive prices.” In re: Evanston, 2016 WL 4720014, at *14. Thus, this doctrine cannot do for Plaintiffs’ challenge to the Novartis merger what it cannot do for Plaintiffs’ Walker Process claim. Similarly, and Section III.A.2.c, copay) for Diovan for Tarek’s “long the same taking before (and reasons discussed presumably January 2011” paying in a anesthetizes Berkey, which suspends running of the statute of limitations - 34 - until a purchaser plaintiff pays the supracompetitive That clearly happened well before March 1, 2013. price. And, finally, even in the best case for Plaintiffs, where the discovery rule somehow applies to toll the four-year statute of limitations on their challenge to the merger until they discovered that they were paying a supracompetitive price (which Plaintiffs define with respect to the disparity in copays between Diovan and generic valsartan), their imprecise allegations about the timing of their discovery do not permit an inference that it occurred after March 1, 2013. (See, Section III.A.2.c.) As such, there is no basis on which to find that Plaintiffs timely brought a federal or state antitrust claim challenging the merger. * * * Therefore, Novartis’ Motion to Dismiss under Rule 12(b)(6) is granted to the extent Plaintiffs’ claims invoke a Section 7 violation of the Clayton Act or a comparable theory under the Illinois Antitrust Act. B. BCBSIL Against BCBSIL, Plaintiffs bring counts for “violating the contract,” “committing “committing fraud to fraud provide to deny low the quality proper coverage,” medications,” and “committing fraud to increase the incomes of its managements.” - 35 - (Compl. ¶¶ 26-29.) As best the Court can tell, these claims sound in breach of contract and common-law fraud. seek compensatory damages, punitive damages, Plaintiffs costs, and attorneys’ fees. This case was removed from state court on the basis of Novartis’ federal question claims. (See, ECF No. 1 ¶ 4 (“This Court has original jurisdiction in this case under 28 U.S.C. § 1331.”), ¶ 6 (“All Defendants consent to the removal of this matter pursuant to 28 U.S.C. § 1446(b)(2)(A).”).) Because the Court has dismissed the federal question claims against Novartis that grounded removal, it now searches for independent subjectmatter jurisdiction to hear Plaintiffs’ state law claims against BCBSIL. Subject-matter jurisdiction is a threshold matter that must established be before resolving issues on the merits. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 9495 (1998). The Court has an independent obligation to ensure that jurisdiction exists. DeBartolo v. HealthSouth Corp., 569 F.3d 736, 740 (7th Cir. 2009). Because Plaintiffs’ claims for fraud and breach of contract do not arise under federal law, subject-matter jurisdiction to hear them can only be grounded in diversity jurisdiction under 28 U.S.C. § 1332, which requires that plaintiffs and defendants be citizens of different states and that the amount in controversy exceeds $75,000. - 36 - Plaintiffs do not allege their own citizenship in their Complaint. As individuals, Plaintiffs are citizens of the state in which they are “domiciled,” that is, “the state in which a person intends to live over the long run.” See, Heinen v. Northrop Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012). In their Complaint, Plaintiffs list their address as 33W135 Bonnie Street, Saint Charles, Illinois 60174. have health insurance coverage They further claim to through BCBSIL by virtue of Soona’s longtime employment with “School Dist. 33” (Compl. ¶ 1), evidencing an intent to remain in Illinois. v. O&K (naming “place Steel as of Corp., factors 42 Fed.Appx. relevant employment,” and to 830, domicile “location of 833 See, e.g., Newell (7th “current Cir. 2002) residence,” property”); 24 Hour Fitness USA, Inc. v. Bally Total Fitness Holding Corp., No. 08 C 3853, 2008 WL 4671748, at *3 (N.D. Ill. Oct. 21, 2008) (also noting the importance of the “presence of family members”). In view of the mute pleadings, Plaintiffs appear to be domiciled in and citizens of Illinois for purposes of diversity jurisdiction. In the same vein, Plaintiffs’ Complaint does not allege the citizenship of BCBSIL. The Court has little reason to doubt that BCBSIL is an Illinois citizen for purposes of diversity. See, e.g., Raines v. Health Care Service Corp., No. 86 C 5352, 1988 WL 58591, at *1 (N.D. Ill. May 31, 1988) (“Defendant Health - 37 - Care Service Corporation, a mutual legal reserve company d/b/a Blue Cross Blue Shield of Illinois (‘Blue Cross’) is a corporation with its principal place of business in Chicago, Illinois.”); Health Care Service Corp. v. Califano, 466 F.Supp. 1190, 1192 n.8 (N.D. Ill. 1979) (“In 1975, HCSC was incorporated by the State of Illinois as a non-profit health care service corporation thus merging the Illinois Blue Cross and Blue Shield plans.”) (citation omitted). Shield Association” corporation. is Similarly, “Blue Cross and Blue registered as an active Illinois See, Office of the Illinois Secretary of State, https://www.ilsos.gov/corporatellc/CorporateLlcController visited June 27, 2017). (Such filings are matters of public record and are properly subject to judicial notice. See, e.g., GE Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 108081 (7th Cir. 1997) (stating that a district court is permitted to take judicial notice of matters of public record); City of Waukegan v. Bond Safeguard Ins. Co., No. 15 C 3007, 2015 WL 68770106, at *2 (N.D. Ill. Nov. 6, 2015) (“With respect to [the defendant’s] state of incorporation, the Court takes judicial notice of filings with the Secretary of State. . . .”); Patten v. Northern Trust Co., 703 F.Supp.2d 799, 803 n.2 (N.D. Ill. 2010) (finding it proper to take judicial notice of “matters of public record, such as [regulatory] - 38 - filings”).) Similarly, according to its website, BCBSIL’s headquarters are located at 300 East Randolph BlueCross Street, BlueShield Chicago, of Illinois 60601. Contact Illinois, See, Us, https://www.bcbsil.com/employer/contact_us.htm (visited June 27, 2017). Thus, BCBSIL appears to be a citizen of Illinois. Absent diversity, the Court does not appear to have independent subject-matter jurisdiction over Plaintiffs’ statelaw claims against BCBSIL. As a result, the Court remands the balance of the case to Kane County Circuit Court. U.S.C. § appears 1447(c) that jurisdiction, (“If the the at any time district case shall before court be final lacks See, 28 judgment subject remanded.”); see, it matter generally, Adkins v. Illinois Cent. R. Co., 326 F.3d 828 (7th Cir. 2003). Alternatively, to the extent the Court may enjoy residual authority to hear the claims based on supplemental jurisdiction – notwithstanding that the federal question anchor is now aweigh – the Court exercises its discretion to remand them. U.S.C. § exercise 1367(c) (permitting supplemental a district jurisdiction over court a to claim See, 28 decline if it to “has dismissed all claims over which the district court has original jurisdiction”); see, generally, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988); Groce v. Eli Lilly & Co., 193 F.3d 496 (7th Cir. 1999). - 39 - IV. CONCLUSION For the reasons stated herein, Defendant Novartis’ Motion to Dismiss [ECF No. 16] is granted. are dismissed alternatively, with Rule prejudice 12(b)(6). The claims against Novartis under Absent Rule the 12(b)(1) federal and, question claims against Novartis that formed the basis for removal, the Court remands the balance of the case to Kane County Circuit Court. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: July 5, 2017 - 40 -

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