Dillon et al v. Medtronic, Inc. et al
Filing
34
AMENDED & SUPERSEDIING MEMORANDUM OPINION & ORDER: dfts' motion to reconsider 32 is DENIED. Signed by Judge Amul R. Thapar on 1/6/2014. (RKT) cc: COR Modified to create link on 1/6/2014 (RKT).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
WINSTON DILLION, JR. and
TERESA DILLON,
Plaintiffs,
v.
MEDTRONIC, INC., et al.,
Defendants.
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Civil No. 13-105-ART
AMENDED AND SUPERSEDING
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
Congress offers two roads into federal court based on federal questions, and the
state-court defendants in this case seek to take the one less traveled. Unfortunately that road
is closed to them. Although the defendants allege federal law preempts the plaintiffs’ claims,
preemption is merely a defense, and thus does not count for the purposes of jurisdiction. The
Court must therefore remand this case back to state court, since no federal issue appears on
the face of the plaintiffs’ well-pleaded complaint.
BACKGROUND
Plaintiffs Winston and Teresa Dillon brought this suit against Medtronic, Inc. and its
codefendants (collectively, “Medtronic”) in Pike County Circuit Court. See R. 1-1. The
Dillons assert various state causes of action including negligence, products liability, and
several fraud-related claims. Id. They seek damages for injuries allegedly caused during Mr.
Dillon’s spine fusion surgery. According to the Dillons, the doctor used Medtronic’s Infuse
Bone Graft device in a manner that the Food and Drug Administration (FDA) did not
approve for inclusion on the device’s label.
Id. ¶¶ 321–27.
And, the Dillons claim
Medtronic is responsible for their injuries because it illegally promoted such “off-label” use
of Infuse. Id. ¶ 200. Medtronic counters that federal law preempts the Dillons’ claims. See
R. 14 (motion to dismiss). The defendants accordingly removed the case to this Court,
invoking its federal-question jurisdiction to hear cases “arising under” federal law. See R. 1
¶ 13 (citing 28 U.S.C. § 1331). The plaintiffs moved to remand. See R. 11.
Federal law regulates medical devices pursuant to the Medical Device Amendments
(MDA) to the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. §§ 360c et seq. See Riegel
v. Medtronic, Inc., 552 U.S. 312, 316–20 (2008) (describing the rigorous regulatory regime).
The MDA provides varying degrees of oversight for medical devices depending on the risks
they carry. Id. at 316. Class III devices like Infuse are the most heavily regulated. Id. at
317; R. 1-1 ¶ 136 (discussing Infuse). In line with the comprehensive federal regime,
Congress expressly preempted all state requirements—including common law duties, see
Riegel, 552 U.S. at 325—relating to medical devices that are “different from, or in addition
to,” federal standards. 21 U.S.C. § 360k(a)(1). The MDA preemption clause does not,
however, bar so-called “parallel” claims for breaches of common-law duties that also violate
federal law. Riegel, 552 U.S. at 330; Medtronic, Inc. v. Lohr, 518 U.S. 470, 495 (1996).
Despite occupying much of the medical device field, Congress explicitly chose not to
provide a private cause of action to consumers harmed by violations of the FDCA, favoring
exclusive government enforcement instead. See Buckman Co. v. Plaintiffs’ Legal Comm.,
531 U.S. 341, 349 n.4 (2001) (citing 21 U.S.C. § 337(a)). As a result, federal law impliedly
preempts state claims based solely on violations of the FDCA. Id. at 352–53; see also
Fulgenzi v. PLIVA, Inc., 711 F.3d 578, 586 (6th Cir. 2013) (holding that claims owing their
existence to the FDCA regulatory scheme are preempted). Medtronic contends that together,
2
§ 360k(a) and § 337(a) preempt the Dillons’ state law claims based on off-label promotion,
and preemption therefore injects the federal question necessary for this case to fall within the
Court’s subject matter jurisdiction. See R. 26 at 9–10.
DISCUSSION
The defendants may remove this case to federal court if the Dillons could have
originally brought it here. See 28 U.S.C. § 1441(a). Unlike state trial courts, however,
federal district courts do not possess general jurisdiction.
As courts of more limited
jurisdiction, federal courts instead hold only that power authorized by the Constitution and
conferred by statute. See Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013). As the party
seeking removal, Medtronic has the burden of demonstrating that the Court has such
jurisdiction. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006). Kentucky
courts are presumptively competent to interpret and faithfully apply federal law.
See
Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (en banc).
I.
The Law of Federal Question Jurisdiction
The Constitution permits federal courts to hear “Cases . . . arising under” the
Constitution and federal law. U.S. Const. art. III, § 2. Early precedent interpreting Article
III suggests this phrase may encompass all cases in which a federal question is anywhere an
“ingredient.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 823–25 (1824).
But see Anthony J. Bellia Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 801–
03, 808 (2004) (arguing that this language in Osborn referred to an essential component of
the cause of action). Nevertheless, the Constitution describes only cases that Congress may
permit federal district courts to hear.
District courts have no jurisdiction without
congressional authorization since Article III is not self-executing. See Hertz Corp. v. Friend,
3
559 U.S. 77, 84 (2010). And Congress generally speaking has the discretion to confer only a
subset of what jurisdiction the Constitution allows. Id. Largely tracking the language of
Article III, Congress has conferred on district courts jurisdiction over “all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
Despite the similar phrasing to the Constitution, the Supreme Court has concluded § 1331
encompasses fewer cases than constitutionally permitted. See Merrell Dow Pharm. Inc. v.
Thompson, 478 U.S. 804, 807–08 (1986).
A.
The “Well-Pleaded Complaint” Rule
Most importantly, for statutory purposes a case only “arises under” federal law if a
federal issue appears amid the plaintiff’s cause of action. See Louisville & Nashville R.R.
Co. v. Mottley, 211 U.S. 149, 152 (1908). Commonly known as the “well-pleaded complaint
rule,” this venerable principle marks the outermost boundary of federal question jurisdiction
under § 1331. See Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). Applying the wellpleaded complaint rule is thus the first step in assessing jurisdiction. See 13D Charles Alan
Wright, et al., Federal Practice and Procedure § 3566 (3d ed.) [hereinafter Wright & Miller]
(“Analytically, courts should apply the well-pleaded complaint rule first.”). Time and again
the Supreme Court has affirmed the rule’s primacy, most recently in Vaden v. Discover
Bank. 556 U.S. 49, 60–62 (2009).
The well-pleaded complaint rule carries several important implications. First and
foremost, a federal issue must be among only those allegations in the complaint necessary
for the plaintiff to state a claim. Though a complaint may go far beyond what is needed to
plead a cause of action, courts must “look only to the claim itself and ignore any extraneous
material.” Wright & Miller § 3566. The well-pleaded complaint rule therefore is perhaps
4
more aptly named the “sufficiently pleaded” or “properly pleaded” complaint rule. Problems
of terminology aside, the rule’s application is clear in most cases. This simplicity makes the
well-pleaded complaint rule a “quick rule of thumb” for determining jurisdiction (or at least
ruling it out). Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 11 (1983).
Beyond offering predictability, the rule also makes the plaintiff “master of the complaint.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 398–99 (1987). So, while a plaintiff might have a
viable federal claim, he is for the most part free to rely instead on state claims in an effort to
keep his case out of federal court. Id. at 399.
Responsive Pleadings: As the well-pleaded complaint rule’s name suggests, only the
complaint matters. Issues raised in responsive pleadings are irrelevant. Holmes Group, Inc.
v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832 (2002).
As a result, federal
questions presented by defenses—or even by the plaintiff’s anticipatory rebuttal of an
expected defense—cannot support jurisdiction. See Franchise Tax Bd., 463 U.S. at 10. Call
it formalistic, but since the goal is simplicity that’s sort of the point.
Regardless, the
no-defense rule serves a functional purpose as well: it prevents a federal district court from
unnecessarily asserting jurisdiction based on an issue the defendant might never raise or
which the court need not address due to the plaintiff’s failure to plead a cognizable claim
under state law. See Mich. S. R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass’n,
Inc., 287 F.3d 568, 576 (6th Cir. 2002). So, with only rare exception, a dispute over whether
federal law trumps the plaintiff’s state cause of action does not satisfy § 1331, since
preemption is usually raised as a defense. See Caterpillar, 482 U.S. at 393. More on the
exceptions later.
5
B.
The Two Roads to Federal Court
Consistent with the well-pleaded complaint rule, § 1331 offers two roads to federal
court. One is relatively clear, the other, not so much.
Federal Causes of Action: The first and most common road to federal court is
through a federal claim. As Justice Holmes famously quipped, “[a] suit arises under the law
that creates the cause of action.” Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257,
260 (1916). Thus, if federal law provides the right to sue, the case may proceed in federal
court. Much to Justice Holmes’s frustration, however, the Supreme Court did not see a
federal cause of action as the exclusive avenue for establishing jurisdiction. See Smith v.
Kansas City Title & Trust Co., 255 U.S. 180, 213–15 (1921) (Holmes, J., dissenting).
Despite the elegant simplicity of Holmes’s test, the Supreme Court preferred shaping
jurisdiction under § 1331 case by case so as to accommodate, as Justice Cardozo put it, the
“kaleidoscopic situations” presenting federal questions. Gully v. First Nat. Bank, 299 U.S.
109, 117 (1936). Holmes’s formula therefore offers merely one possible road to the federal
courthouse, not the only road. See Franchise Tax Bd., 463 U.S. at 9.
State Claims Raising Significant Federal Issues: Following its ad hoc approach, the
Supreme Court over time paved a second road to federal court: through state causes of action
containing “significant federal issues.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g &
Mfg., 545 U.S. 308, 312 (2005).
The paradigmatic example of a state claim with an
embedded (though not necessarily significant) federal issue is a common-law claim for
negligence per se based on the violation of a federal duty. See Merrell Dow, 478 U.S. at 814
(discussing “the presence of the federal issue as an element of the state tort”). The second
jurisdictional road eventually came to look less like a road, however, and more like a maze.
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See Gunn, 133 S. Ct. at 1065 (comparing the case law to the work of abstract expressionist
drip painter Jackson Pollock). Sensing the mounting confusion, the Supreme Court has
recently attempted to clarify the area, distilling the second road into four factors. A state
claim will only trigger federal question jurisdiction if the federal issue is: 1) necessarily
raised, 2) actually disputed, 3) substantial, and 4) capable of resolution in federal court
without upsetting the traditional balance of state and federal judicial power. See id. (citing
Grable, 545 U.S. at 313–14).
Though Grable and Gunn did much to dispel doctrinal confusion, the last two factors
are still rather imprecise. So, while history suggests Holmes may have been wrong as a
matter of § 1331’s original meaning, see generally Ann Woolhandler & Michael G. Collins,
Federal Question Jurisdiction and Justice Holmes, 84 Notre Dame L. Rev. 2151 (2009), his
comparatively clear rule has much going for it, see Grable, 545 U.S. at 321 (Thomas, J.,
concurring) (suggesting that the Supreme Court consider returning to the Holmes test out of
the need for jurisdictional clarity); Hoagland ex rel. Midwest Transit, Inc. v. Sandberg,
Phoenix & von Gontard, P.C., 385 F.3d 737, 739–40 (7th Cir. 2004) (Posner, J.) (noting the
general advantages of standards but explaining that clear jurisdictional rules are preferable
because they avoid wasteful litigation over forum).
Whatever its merits, however, the
Holmes test is not the law.
The Second Road and the Well-Pleaded Complaint Rule: Despite the remaining
uncertainty surrounding Grable, one beacon of relative clarity remains: the well-pleaded
complaint rule. Even if they are substantial, federal questions triggering jurisdiction must
still appear amid the elements of the plaintiff’s cause of action. See Wright & Miller § 3566
(“Only if the federal matter is presented in [a well-pleaded complaint] should it then be
7
necessary to assess the substantiality and centrality of the federal issues.”). Grable did
nothing to change that.1 See Cal. Shock Trauma Air Rescue v. State Comp. Ins. Fund, 636
F.3d 538, 542 (9th Cir. 2011) [hereinafter CALSTAR]. Lest there remain any doubt on that
point, as already noted, the Supreme Court after Grable reaffirmed the well-pleaded
complaint rule’s vitality in Vaden, rejecting federal jurisdiction over state counterclaims
“even if they rely exclusively on federal substantive law.” 556 U.S. at 62; see also id. at 60–
61 (emphasizing that only a complaint can establish federal question jurisdiction and thus
such jurisdiction “cannot be predicated on an actual or anticipated defense”). And even if
there was some doubt (there is not) about whether Grable abrogated the well-pleaded
complaint rule, it is up to the Supreme Court to overrule explicitly its prior precedents
repeatedly holding that federal issues in defenses (and preemption specifically) do not count
under § 1331. See Agostini v. Felton, 521 U.S. 203, 237 (1997). Grable and Gunn thus
stand for the proposition that a state-based claim will support jurisdiction under § 1331 only
if it satisfies both the well-pleaded complaint rule and raises significant federal issues. See
CALSTAR, 636 F.3d at 542.
C.
Exceptions to the Well-Pleaded Complaint Rule
Most rules have exceptions, of course, and the well-pleaded complaint rule is no
different. It has two: complete preemption and artful pleading. In certain circumstances,
both of these doctrines allow federal courts to recast ostensibly state causes of action as
federal causes of action. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475–76
1
The Sixth Circuit has referred to the substantial-federal-question doctrine as an “exception” to the wellpleaded complaint rule. See Mikulski, 501 F.3d at 560. For the reasons discussed in Appendix A, also
available at Dillon v. Medtronic, Inc., No. 13-105-ART, 2014 WL 28828 (E.D. Ky. Jan. 2, 2014), this choice
of terminology does not change the reasoning or the outcome in this case because the substantial-federalquestion doctrine is not a true exception to the well-pleaded-complaint rule.
8
(1998); Caterpillar, 482 U.S. at 393. Where these exceptions apply, the judge usurps the
plaintiff as master of the complaint. See Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 14
(2003) (Scalia, J., dissenting) (questioning the authority of a judge to effectively recast the
plaintiff’s cause of action as “jurisdictional alchemy”). A number of justices, however,
prefer to call these doctrines corollaries to the well-pleaded complaint rule rather than
exceptions.
See Franchise Tax Bd., 463 U.S. at 22.
In their view, the doctrines are
consistent with the rule because both are aimed at discovering whether the plaintiff’s cause
of action really relies on state or federal law. Whatever you call them, these doctrines allow
federal judges to become the master of the complaint in two limited circumstances. See
Anderson, 539 U.S. at 15 (Scalia, J., dissenting).
Complete Preemption: The first exception is so-called “complete preemption,” a
confusingly named doctrine that “‘only a judge could love.’” Loffredo v. Daimler AG, 500
F. App’x 491, 495 (6th Cir. 2012) (quoting Bartholet v. Reishauer A.G. (Zürich), 953 F.2d
1073, 1075 (7th Cir. 1992)). Courts should not reflexively equate complete preemption, a
jurisdictional rule, with the substantive law of preemption. Despite their connection, they are
distinct. That federal law ultimately preempts a plaintiff’s state claims does not by itself
establish jurisdiction. See Caterpillar, 482 U.S. at 398. Rather, preemption serves as a basis
for federal question jurisdiction only when Congress so occupies the relevant field that “any
claim purportedly based on that pre-empted state law is considered, from its inception, a
federal claim, and therefore arises under federal law.” Id. at 393. The Supreme Court has
only found such complete preemption in three statutes: the Labor Management Relations
Act, ERISA, and the National Bank Act. See Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527,
531 (6th Cir. 2010) (citing cases). And the Sixth Circuit has only expanded the doctrine
9
twice. See Ritchie v. Williams, 395 F.3d 283, 286–87 (6th Cir. 2005) (Copyright Act);
Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 949–50 (6th Cir. 2002) (National Flood
Insurance Act).
Essential to complete preemption is an alternative federal cause of action the plaintiff
could have invoked.
Anderson, 539 U.S. at 9–10 (holding that preemption supports
jurisdiction only if federal law “provide[s] the exclusive cause of action”); see also Strong v.
Telectronics Pacing Sys., Inc., 78 F.3d 256, 260 (6th Cir. 1996). This rule makes intuitive
sense. Without a federal cause of action, there would simply be nothing into which to
convert the plaintiff’s state-law claims. A plaintiff otherwise “would be forced into federal
court with no relief available.” Rogers v. Tyson Foods, Inc., 308 F.3d 785, 788 (7th Cir.
2002). Recharacterizing state claims to prevent artful pleading around an exclusive federal
cause of action is one thing (discussed further below), but knowingly repleading the plaintiff
right out of court would make a mockery of the well-pleaded complaint rule. So, while
complete preemption displaces the plaintiff as master of his complaint, recasting state claims
as federal ones satisfies the traditional rule that “a case arises under federal law when federal
law creates the cause of action asserted.” Gunn, 133 S. Ct. at 1064 (citing Am. Well Works,
241 U.S. at 260). Like the defense of federal claim preclusion, however, preemption alone
“does not transform the plaintiff’s state-law claims into federal claims but rather extinguishes
them altogether.” Rivet, 522 U.S. at 476. Absent a federal remedy, preemption remains
merely a defense and thus cannot satisfy the well-pleaded complaint rule.
Artful Pleading: Lastly, a plaintiff’s state-law claims might support federal question
jurisdiction if they are artfully pled to avoid federal issues but in reality depend on federal
law. Id. at 475; see also Franchise Tax Bd., 463 U.S. at 22. What, if any, independent work
10
this doctrine does, however, remains a mystery. The Supreme Court in Rivet explained that
complete preemption is an application of artful pleading doctrine. 522 U.S. at 475. The
doctrine might also encompass “situations in which federal issues are embedded within state
law causes of action,” but even if that is correct, Grable’s four-part test still limits which of
these situations confer jurisdiction. Wright & Miller § 3722.1. Moreover, like complete
preemption, jurisdiction based on a strategically pled complaint is only possible when the
plaintiff’s claims “actually implicate a federal cause of action” that might have been invoked
absent artful pleading. Mikulski, 501 F.3d at 561–63. Otherwise, without an alternative
federal cause of action there would be nothing to plead around. There is no artifice in failing
to plead a claim that does not even exist. Artful pleading doctrine thus appears to have
nothing to add beyond serving as an umbrella term or underlying theory for other rules.
II.
Applying the Law to the Dillons’ Claims
In summary, a suit “arises under” federal law only if the complaint: 1) states a federal
cause of action, 2) pleads state claims depending on a substantial and disputed federal issue,
3) raises state claims so completely preempted they are really federal, or 4) artfully pleads
state claims that are at bottom federal claims in disguise. See Brunner, 629 F.3d at 530
(citing Mikulski, 501 F.3d at 560). This case features none of these grounds for removal.
The Court must therefore remand it back to state court. See 28 U.S.C. § 1447(c).
Federal Cause of Action: The Dillons’ complaint states no federal cause of action,
the traditional door into federal court, see Am. Well Works, 241 U.S. at 260. Indeed, the
Dillons disclaim reliance on any federal remedy: “All claims contained in this complaint are
based on state law. . . . Plaintiff herein is alleging no right to relief under federal law.” R. 1-1
¶ 79; see also id. ¶ 219 (“Plaintiff makes no claim for recovery as a cause of action under
11
[the] FDCA statutes and accompanying regulation.”). Since the plaintiffs are masters of their
complaint, including what law they choose to invoke, see Brunner, 629 F.3d at 531, the
Dillons’ complaint does not provide a basis for arising-under jurisdiction.
Substantial Federal Question:
Nor do any of the Dillons’ claims depend on
embedded issues of federal law. Medtronic vigorously argues that Grable’s four-factor
analysis applies here because whether the Dillons ultimately may recover for their injuries
turns on the scope of preemption, a federal question. See R. 26 at 8–11. But this argument
ignores the well-pleaded complaint rule. And contrary to Medtronic’s suggestion, see R. 26
at 7, Grable did nothing to disturb that rule as the outermost limit of federal question
jurisdiction.
This explains why courts analyze complete preemption separately from
substantiality post-Grable. See Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708,
712–13 (6th Cir. 2012); Brunner, 629 F.3d at 531.
As a result, even if a federal question in this case is substantial, it must appear on the
face of the Dillons’ well-pleaded complaint. Put differently, a federal issue must be among
the allegations necessary for the Dillons initially to plead their state causes of action. Other
federal issues governing whether their claims ultimately entitle them to relief are irrelevant.
Since federal preemption is a defense, it forms no part of the Dillons’ causes of action and
thus does not satisfy the well-pleaded complaint rule. For this reason the defendants’ claims
of preemption cannot provide the substantial federal question needed for removal. See
Taylor, 481 U.S. at 63; Caterpillar, 482 U.S. at 393. And to the extent the Dillons use their
complaint to rebut anticipated arguments regarding federal preemption, that rebuttal is
equally unnecessary to plead state claims and similarly irrelevant for purposes of the wellpleaded complaint rule. See Mottley, 211 U.S. at 152.
12
To be sure, in order to avoid preemption the Dillons must base their state claims on
conduct that also violates federal law, see Riegel, 552 U.S. at 330, but that does not make
federal law part of their sufficiently pled state causes of action. With only one minor
exception, the Dillons generally do not allege that Medtronic breached state duties by
violating federal standards, as with a claim of negligence per se. The Dillons’ claims thus
are not “premised on violation of federal law, but rather on an independent state duty. The
alleged breach arises from the same act, but the legal basis is different.” Fulgenzi, 711 F.3d
at 587. And the allegations of off-label use do not lead to a different conclusion. While
Infuse’s FDA-mandated label is of course a creature of federal law, its “federalness” is
superfluous to the Dillons’ state claims.
Leave the label but take away the federal
requirement and the Dillons’ claims for products liability, misrepresentation, and negligence
remain substantively unchanged. Since federal labeling requirements are unnecessary to the
Dillons’ causes of action, they do not satisfy the well-pleaded complaint rule. And besides,
even if off-label use was essential to those claims, it would still fail as a basis for jurisdiction
because none of the parties dispute the off-label nature of the procedures at issue.
Cf. Grable, 545 U.S. at 314 (covering only disputed federal questions).
The Dillons do allege, however, that Medtronic “[f]ail[ed] to exercise reasonable care
by not complying with federal law and regulations applicable to the sale and marketing of
Infuse®.” See R. 1-1 ¶ 381(c). This is indeed an allegation of negligence per se. But this is
only one of several independent theories supporting their broader negligence claim, the rest
of which do not depend on federal law. Id. The Dillons’ cause of action for negligence thus
does not satisfy the well-pleaded complaint rule, since claims supported by alternative non-
13
federal theories may not provide the basis for federal question jurisdiction. See Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 809–10 (1988).
Complete Preemption: Despite the normal rule that preemption is a defense unable
to support federal jurisdiction, it might support jurisdiction in this case if federal law so
completely occupies the field of medical device regulation that any state claim in the area is
really from the outset a federal claim. Caterpillar, 482 U.S. at 393. Without a federal cause
of action, however, there can be no complete preemption in the sense relevant to jurisdiction.
See Anderson, 539 U.S. at 9–10; Strong, 78 F.3d at 260. The Court thus may recast the
Dillons state claims as federal ones only if Congress created “a parallel federal cause of
action that would ‘convert’ a state cause of action into the federal action for purposes of the
well-pleaded complaint rule.” Strong, 78 F.3d at 260. As a result, absent a federal remedy
the Dillons could have invoked, the defendants’ claims of preemption remain only a defense
that does not satisfy the well-pleaded complaint rule.
The essential federal cause of action is missing from the MDA. To the Court’s
knowledge, only one appellate court has addressed whether the MDA so completely
preempts state law as to support federal jurisdiction. Unfortunately for Medtronic, that court
is the Sixth Circuit in Strong, which rejected complete preemption. 78 F.3d at 259–61. As
the court in Strong reasoned, there is no complete preemption here because the FDCA
specifically disclaims a private cause of action. See 21 U.S.C. § 337(a) (providing that all
actions to enforce the Act “shall be by and in the name of the United States”). Whatever
federal administrative remedies might be available does not change that result. Strong, 78
F.3d at 261.
14
Artful Pleading: Finally, the Dillons’ state-law claims might support federal question
jurisdiction if they are really federal claims in disguise. See Brunner, 629 F.3d at 531. There
is no such artful pleading in this case, however, for the same reason there is no complete
preemption. Jurisdiction based on a strategically pled complaint is only possible when the
plaintiff’s claims “actually implicate a federal cause of action” that might have been invoked
absent artful pleading. Mikulski, 501 F.3d at 561. But as already discussed, there is no
private cause of action under the MDA. See 21 U.S.C. § 337. Since there is simply no
federal claim for the Dillons to avoid, artful pleading doctrine is no basis for the Court’s
jurisdiction.
CONCLUSION
For the reasons discussed, the Court lacks subject-matter jurisdiction over this case.
It is accordingly ORDERED that the Dillons’ motion to remand, R. 11, is GRANTED.
This case is REMANDED to the Pike County Circuit Court. All pending motions are
DENIED AS MOOT, and this case shall be STRICKEN from the Court’s active docket.
This the 6th day of January, 2014.
15
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
WINSTON DILLON, JR. and
TERESA DILLON,
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
MEDTRONIC, INC., et al.,
Defendants.
Civil No. 13-105-ART
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
On December 20, 2013, the Court remanded this case to Pike County Circuit Court
for lack of subject-matter jurisdiction. R. 31. The defendants now move the Court to
reconsider its ruling on account of clear legal error. R. 32. The Court is powerless to
entertain this motion because, once a case has been remanded to state court for lack of
jurisdiction, 28 U.S.C. § 1447(d) divests the Court of authority to reconsider the remand
order. See Gibson v. Am. Mining Ins. Co., No. 08-118-ART, 2008 WL 4858396, at *1 (E.D.
Ky. Nov. 7, 2008). Regardless, even if the Court had authority to reconsider its remand
order, it would not reach a different conclusion.
DISCUSSION
The defendants specifically argue that the Court misread Sixth Circuit precedent on
substantial-federal-question doctrine.
R. 32-1 at 4–5 (relying on Mikulski v. Centerior
Energy Corp., 501 F.3d 555 (6th Cir. 2007) (en banc)). They contend that the Sixth Circuit
permits jurisdiction based on substantial federal questions whether or not such questions
appear on the face of the plaintiff’s complaint.
Id. at 4.
That conclusion is wrong.
Nevertheless, the defendants are indeed correct that the Sixth Circuit and other courts have
confusingly referred to the substantial-federal-question doctrine as a third “exception” to the
well-pleaded complaint rule (in addition to complete preemption and artful pleading). See
Mikulski, 501 F.3d at 560; see also Devon Energy Prod. Co., L.P. v. Mosaic Potash
Carlsbad, Inc., 693 F.3d 1195, 1203–04 (10th Cir. 2012); New York v. Shinnecock Indian
Nation, 686 F.3d 133, 141 (2d Cir. 2012). But this choice of words does not undermine the
reasoning behind the remand in this case. On the contrary, the only difference between the
Court’s opinion and Mikulski is that of terminology. There is no difference in substance.
I.
The Traditional Understanding of the Well-Pleaded Complaint Rule
What this Court refers to as the “well-pleaded complaint rule” is the longstanding
principle that, to support federal jurisdiction, a federal issue must appear amid the essential
elements of the plaintiff’s cause of action. See Louisville & Nashville R.R. Co. v. Mottley,
211 U.S. 149, 152 (1908). The primary consequence of this rule is that issues raised in
responsive pleadings are irrelevant. See Holmes Group, Inc. v. Vornado Air Circulation Sys.,
Inc., 535 U.S. 826, 832 (2002). Federal questions presented by defenses like preemption
thus cannot support jurisdiction. See Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).
As a result, complete preemption is a true exception to the well-pleaded complaint rule, since
it permits jurisdiction on the basis of a federal defense (by recasting the plaintiff’s state
claims as federal claims).
The substantial-federal-question doctrine, on the other hand, is not a true exception to
the rule, because it does not permit jurisdiction based on federal issues raised outside the
complaint. Although the doctrine permits federal jurisdiction based on state claims, the
plaintiff’s cause of action need not be federal to satisfy the well-pleaded complaint rule so
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long as one of the claim’s elements depends on federal law. For example, take a state law
tort claim for negligence per se based solely on violation of a federal duty. A question
regarding that federal duty appears on the face of the plaintiff’s complaint amid the elements
of his cause of action. The question might be substantial, and thus the claim may “arise
under” federal law, but federal jurisdiction over such a claim is entirely consistent with the
traditional view of the well-pleaded complaint rule. See, e.g., Smith v. Kansas City Title &
Trust Co., 255 U.S. 180, 201–02 (1921) (finding jurisdiction over a state claim to enjoin a
trust from investing in allegedly unconstitutional federal bonds).
Mikulski’s understanding of substantial-federal-question doctrine is not to the
contrary. As the Sixth Circuit explains, state claims do not “arise under” federal law for
purposes of 28 U.S.C. § 1331 “unless it appears that some substantial, disputed question of
federal law is a necessary element of one of the well-pleaded state claims.” Mikulski, 501
F.3d at 565 (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 13
(1983)) (emphasis added). The federal issue, in other words, must appear on the face of the
complaint. That principle is behind this Court’s holding that the substantial-federal-question
doctrine does not permit jurisdiction based on issues raised in defenses. And that holding
also accords with the Sixth Circuit’s own reading of Mikulski. See Ohio ex rel. Skaggs v.
Brunner, 549 F.3d 468, 474–76 (6th Cir. 2008) (applying Mikulski and holding that issues
raised in defenses do not satisfy the first prong of the substantial-federal-question test
because they are not an “essential element” of the plaintiff’s claim). And no other circuit
disagrees. See Devon, 693 F.3d at 1208–09 (rejecting application of substantial-federalquestion doctrine to defenses); Shinnecock Indian Nation, 686 F.3d at 140 n.4 (reaching the
same conclusion because issues raised in defenses are “not necessarily raised by the
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[plaintiffs’] affirmative claims”).
II.
The Well-Pleaded Complaint Rule as the Holmes Test
But if Mikluski’s understanding of the substantial-federal-question doctrine is
consistent with the traditional view of the well-pleaded complaint rule, why call the doctrine
an “exception” to the rule? To be sure, the opinion’s recitation of the rule is consistent with
the traditional formulation: “To determine whether the claim arises under federal law, we
examine the ‘well pleaded’ allegations of the complaint and ignore potential defenses.”
Mikulski, 501 F.3d at 560 (quotation marks and brackets omitted). But the traditional view
of the rule cannot explain why the Sixth Circuit considers the substantial-federal-question
doctrine an “exception” despite expressly limiting the doctrine to federal issues found on the
face of the plaintiff’s complaint. If Mikulski had not been so clear on that limit, then perhaps
it could be read as treating the substantial-federal-question doctrine as a true exception to the
well-pleaded complaint rule. Since the opinion was clear on that score, however, the only
possible explanation is that the Sixth Circuit did not use the “well-pleaded complaint rule” in
the traditional sense.
There is only one usage of that term that accounts for the entire opinion: Mikulski
conflates the “well-pleaded complaint rule” with the Holmes creation test, the general rule
that “[a] suit arises under the law that creates the cause of action.” Am. Well Works Co. v.
Layne & Bowler Co., 241 U.S. 257, 260 (1916); see also Dillon v. Medtronic, Inc.,
No. 13-105-ART, 2013 WL 6834812, at *3–4 (E.D. Ky. Dec. 20, 2013) (discussing the
Holmes test). Substitute in the Holmes test and the opinion’s terminology makes much more
sense. Even limited to issues appearing amid the plaintiff’s cause of action, the substantialfederal-question doctrine is an exception to that test because it permits federal jurisdiction
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over state claims. See Grable & Sons Metal Products, Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 312 (2005). Thus, considering the Mikulski opinion as a coherent whole, the Holmes
test is the most plausible reading of the Sixth Circuit’s usage of the “well-pleaded complaint
rule.”
And while imprecise, using the well-pleaded complaint rule as a substitute for the
Holmes test has some ready explanations. Since the Holmes test “accounts for the vast bulk
of suits that arise under federal law,” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013), it is
easy to confuse that test with the well-pleaded complaint rule, the “basic principle marking
the boundaries of the federal question jurisdiction.” Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 63 (1987). Moreover, because practically speaking “a plaintiff can generally guarantee
an action will be heard in state court” by avoiding federal claims, Devon, 693 F.3d at 1202
(quotation marks and alteration omitted), it is natural to associate this usually conclusive
power over the forum with the plaintiff’s role—arising from the well-pleaded complaint
rule—as “master of the complaint,” Caterpillar, 482 U.S. at 398–99. That association, of
course, is an oversimplification. The substantial-federal-question doctrine illustrates that, as
master of the complaint, the plaintiff can guarantee a state forum only by avoiding federal
law entirely; simply avoiding federal claims is not enough to guard against removal.
Nevertheless, because the plaintiff’s power to choose the forum generally overlaps with the
Holmes test, blurring that test with the well-pleaded complaint rule is understandable. This
method of association appears particularly likely in Mikulski, since the opinion emphasizes
that all three “exceptions” to the well-pleaded complaint rule “force a plaintiff into federal
court despite the plaintiff’s desire to proceed in state court.” 501 F.3d at 560.
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III.
Support from Supreme Court Precedent
Finally, whatever best explains the opinion in Mikulski, this Court’s holding is
directly in line with Grable and subsequent Supreme Court precedent discussing the wellpleaded complaint rule. As the Supreme Court formulated the substantial-federal-question
test in Grable, the initial question is whether “a state-law claim necessarily raise[s] a stated
federal issue.” 545 U.S. at 314. The plaintiff’s claim itself therefore must state the federal
issue, consistent with the traditional view of the well-pleaded complaint rule. Put simply, the
first prong of Grable’s test is the well-pleaded complaint rule. And that rule was satisfied in
Grable because there a federal question was necessary to make out the plaintiff’s state quiet
title claim. Id. at 314–15. The Dillons’ claims, in contrast, fail the first prong of Grable’s
four-part test because no federal issue is necessary to state their claims.
And Supreme Court precedent postdating both Grable and Mikulski confirms this
reasoning is sound. As the High Court described the well-pleaded complaint rule in Vaden v.
Discover Bank, “a suit ‘arises under’ federal law only when the plaintiff’s statement of his
own cause of action shows that it is based upon federal law.” 556 U.S. 49, 60 (2009)
(quotation marks and alteration omitted). The Vaden Court reaffirmed that federal issues
appearing in responsive pleadings, including defenses and even compulsory counterclaims,
are irrelevant to subject-matter jurisdiction. Id. at 60–62. This bolsters the Court’s narrow
reading of the Sixth Circuit’s opinion in Mikulski. And even if that reading is wrong (it is
not), Vaden overrules a more capacious interpretation of Grable, removing any lingering
doubt.
So, whatever the Sixth Circuit calls the substantial-federal-question doctrine
(“exception” to the well-pleaded complaint rule or not), this Court’s prior opinion is fully
consistent with binding precedent.
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CONCLUSION
For the reasons discussed, it is accordingly ORDERED that the defendants’ motion
to reconsider, R. 32, is DENIED.
This the 2nd day of January, 2014.
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