Alexander v. Abbott Laboratories Inc

Filing 565

ORDER Requesting Briefing on Subject Matter Jurisdiction. Plaintiffs shall file a brief addressing subject matter jurisdiction of the cases referenced in the Order, and all similar cases, or before October 7, 2016. Defendants may file a response on or before October 21, 2016, and Plaintiffs may file a reply on or before October 28, 2016. Signed by Judge Nancy J. Rosenstengel on 9/23/2016. (jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
IN RE DEPAKOTE:
RHEALYN ALEXANDER, et al.,
Plaintiffs,
vs.
ABBOTT LABORATORIES, INC., and
ABBVIE, INC.,
Defendants.

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Case No. 12-CV-52-NJR-SCW
LEAD CONSOLIDATED CASE

ORDER REQUESTING BRIEFING
ON SUBJECT MATTER JURISDICTION
ROSENSTENGEL, District Judge:
This matter is before the Court, sua sponte, for purposes of determining whether
the Court has subject matter jurisdiction over certain cases in the Depakote litigation.
The vast majority of the Depakote litigation cases were filed directly in this District
alleging diverse citizenship as the sole basis for this Court’s subject matter jurisdiction.
In each of these cases, the Complaint makes no reference to the original mass action or
the provisions of the Class Action Fairness Act (“CAFA”).1 And a small number of the
cases filed originally in this Court facially fail to allege any basis for federal subject
matter jurisdiction. See e.g., G.M., et al., v. Abbott Laboratories, Inc., No. 13-cv-890 (S.D. Ill.
2014) (alleging Illinois as the state of residence for both Plaintiff Sarah J. Dubeau and
Defendant); Bauman et al v. Abbott Laboratories Inc. et al, No. 15-cv-472 (S.D. Ill. 2015)

1

Only seven of the 133 Depakote litigation cases were consolidated and removed to this Court under the
provisions of CAFA. See In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012).

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(alleging Illinois as the state of residence for both Plaintiffs Lorri McDanel and A.M., and
Defendants); P.A. et al., v. Abbott Laboratories, Inc., et al., No. 15-cv-102 (S.D. Ill. 2015)
(alleging Illinois as the state of residence for both Plaintiffs Pamela Reyes and J.A., and
Defendants); Sanders et al., v. Abbott Laboratories, Inc., et al., No.. 16-cv-21 (S.D. Ill. 2016)
(alleging Illinois as the state of residence for both Plaintiff John Marzigliano and
Defendants). 2
It is well settled that lack of subject matter jurisdiction cannot be waived. O’Brien
v. R.J. O’Brien & Associates, Inc., 998 F.2d 1394, 1399 (7th Cir. 1993); see Belleville Catering
Co. v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 692 (7th Cir. 2003) (where the Seventh
Circuit dismissed a case that had proceeded, on alleged diversity jurisdiction, to a jury
verdict before discovering diversity was incomplete).
Plaintiffs, as the parties invoking federal jurisdiction, bear the burden of
establishing that jurisdiction is proper by a preponderance of the evidence. Travelers
Prop. Cas. v. Good, 689 F.3d 714, 722 (7th Cir. 2012); Oshana v. Coca-Cola, 472 F.3d 506, 511
(7th Cir. 2006) (citing Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006)).
While each of the referenced Depakote litigation cases contain Plaintiffs that are citizens
of states other than Illinois, “[t]he rule is that if there are residents of the same state on
both sides of a lawsuit, the suit cannot be maintained under the diversity jurisdiction
even if there is also a nonresident party.” Am. Nat. Bank & Trust Co. of Chicago v. Bailey,
750 F.2d 577, 582 (7th Cir. 1984).
It is clear that traditional diversity jurisdiction does not exist in some of the
Depakote cases pending in this District; what is not clear to the Court is the basis for
2

The above is not an exclusive list of all cases that fail to facially allege diversity jurisdiction.

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subject matter jurisdiction. 3 Accordingly, the Court directs the parties to address the
following two questions: (1) whether the jurisdictional provisions of CAFA apply to
the cases referenced above; and if not, (2) whether there is an independent basis for
federal subject matter jurisdiction.
Plaintiffs shall file a brief addressing subject matter jurisdiction of these cases on
or before October 7, 2016. Defendants may file a response on or before October 21, 2016,
and Plaintiffs may file a reply on or before October 28, 2016.
IT IS SO ORDERED.
DATED: September 23, 2016
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

3

The Court notes that in all of the referenced cases Defendants did not file a motion to dismiss for lack of
subject matter jurisdiction but instead filed an Answer simply stating “…the Complaint contains a legal
conclusion [concerning jurisdiction] to which no response is required. To the extent a response is
necessary, Defendants admit that they are residents of the states of Illinois and Delaware.” See e.g., 16cv21
(Doc. No. 7, at p. 4.)

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