Stone v. Baxter International, Inc., et al.

Filing 28

REPORT AND RECOMMENDATION that MOTION to Remand 20 be granted, MOTION to Remand 17 be granted, and MOTION to Stay Proceedings Pending Transfer by the Judicial Panel on Multi-District Litigation 10 be denied. Pursuant to NECivR 72.3, a party may object to a this Report and Recommendation by filing an "Objection to Report and Recommendation" within ten (10) days after being served with the recommendation. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA D A V I D L. STONE, P l a i n t i f f, vs. B A X T E R INTERNATIONAL, INC., A D e la w a r e Corporation; BAXTER H E A L T H C A R E CORPORATION, A D e la w a r e Corporation; HAKAM A S A A D , M.D.; DOUGLAS WELSH, M .D .; ALEC AKBAROV, M.D.; D A V I D A. DUDLEY, M.D.; DONALD B E L L , M.D.; and FAITH REGIONAL H E A L T H SERVICES, A Nebraska N o n -P r o fit Corporation, D e f e n d a n t s. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

4 :0 8 -c v -3 2 0 1 R E P O R T AND R E C O M M E N D A T IO N

T h i s matter is before the court on the following motions: · M o tio n to stay proceedings pending transfer by the Judicial Panel on M u ltid is tric t Litigation (Doc. 10) P la in tif f 's motion to remand this matter to state court (Doc. 17) M o tio n to Remand (Doc. 20) filed by defendants Hakam Asaad, Alec A k b a ro v and Faith Regional Health Services (FRHS)

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T h e motions have been fully briefed. For the reasons discussed below, I recommend that the c a se be remanded to state court for lack of federal jurisdiction.

I . BACKGROUND A . T h e Pleadings T h e state court complaint (Doc. 1- 2) alleges that the plaintiff suffered injury in N o v e m b e r 2007 after being treated with the anticoagulant drug, Heparin. Baxter

In ter n a tio n a l, Inc. and Baxter Healthcare Corporation (together, "Baxter") allegedly m a n u f a c tu r e d and sold the Heparin. The drug was administered to plaintiff by defendants/ d o c to rs Asaad, Welsh, Akbarov, Dudley and Bell at a hospital operated by defendant Faith R e g io n a l Health Services (FRHS) in Norfolk, Nebraska. B ax ter International, Inc. and Baxter Healthcare Corporation are Delaware c o r p o r a tio n s with principal places of business in Deerfield, Illinois. P la in tif f and the remaining defendants all reside in the State of Nebraska. T h e complaint alleges that, on November 4, 2007, FRHS admitted plaintiff to its e m e r g e n c y room for the diagnosis and treatment of an acute myocardial infarction. He was tre a te d that day by Drs. Asaad and Welsh and placed on intravenous Heparin. Dr. Akbarov p e rf o rm e d coronary artery bypass surgery on November 7, 2007 and administered in tra v e n o u s Heparin during the procedure. The defendants administered more intravenous Heparin in response to plaintiff's v a rio u s post-operative problems. Plaintiff alleges that his platelet count dropped steadily f ro m 234,000 at the time of his admission to 25,000 on November 13, 2007. By November 9 , plaintiff began to complain of burning neuritic pain in his feet, which was treated with -2-

" ag g re ss iv e dosing" of intravenous Heparin.

Within 90 minutes, plaintiff developed

h yp o te n sio n and was treated with a dopamine infusion. That same day, plaintiff developed d yp s n e a with associated bronchopspasm. By November 10, plaintiff had developed "lower e x tre m ity ischemia with cool feet" and his Heparin was increased. Plaintiff's condition c o n tin u e d to deteriorate. O n November 13, 2007, plaintiff's physicians made a presumptive diagnosis of H e p a rin induced thrombocytopenia thrombosis (HITT), and the Heparin was discontinued. A t that time, plaintiff's extremities appeared salvageable; however, plaintiff was noted as b e in g "desperately ill" and at "a great risk of devitalization and digital or even pedal loss." P la in ti f f 's breathing markedly improved after Heparin was discontinued. On

D e c em b e r 19, 2007, as a result of the HITT, plaintiff underwent a below the knee amputation o f his left leg and a mid-tarsal amputation of his right foot. P la in tif f alleges that the Heparin he received was manufactured by Baxter and was c o n ta m in a t e d by over-sulfated chondroitin sulfate (OSCS), and that the defendants' a d m in is tra tio n of the Heparin caused him to develop medical conditions, including HITT. P la in tif f 's claims against Baxter are based on theories of strict products liability (d efective manufacturing, failure to adequately test); negligence in manufacturing and testing th e Heparin; breach of implied warranty; fraudulent misrepresentation; and negligent m is r e p re s e n ta tio n .

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T h e complaint alleges that the defendant doctors and FRHS are liable for professional n e g lig e n c e because they failed to timely diagnose and treat plaintiff's HITT; prescribed m e d ic a tio n s , i.e., Neosynephrine and Levophen, to treat persistent hypotension when they k n e w or should have known plaintiff was suffering from HITT; failed to exercise reasonable c a re in ensuring that plaintiff received proper medical treatment; and failed to exercise the d e g re e of care or skill ordinarily exercised by others in the medical profession. All the defendants have filed answers denying liability. The Baxter defendants affirmatively allege, inter alia, that their liability, if any "sh o u ld be compared to the fault of Plaintiff, parties, and actors involved in the matters a lle g e d in Plaintiff's Complaint." They further allege that plaintiff's injuries were caused by p e rs o n s other than Baxter over whom Baxter had no control or authority; by the misuse, a b u se , alteration, unauthorized use, unintended use, and/or failure properly to utilize, m a in ta in or care for the Heparin product; by the actions of other persons, who caused ch an g es and alterations to be made to the Heparin product; plaintiff's treating physicians were p ro v id e d proper, complete, and adequate warnings and instructions consistent with the state o f medical art and knowledge. B . T h e Notice of Removal T h e Baxter defendants removed the matter to federal court. Although the complaint d o e s not allege any claim arising under federal law, the Baxter defendants alleged in the N o tic e of Removal (Doc. 1 at p. 4/11) that this court has federal question subject matter -4-

ju risd ictio n under 28 U.S.C. § 1331 because plaintiff's claims against Baxter "are inextricably in t e rtw in e d with the comprehensive federal scheme governing prescription drugs." Thus, B a x te r concludes, the plaintiff "is challenging the adequacy of FDA and FDCA regulations a n d procedures with which [Baxter] complied as well as FDA determinations related to h e p a r in . " The Baxter defendants also contend that this court has diversity jurisdiction under 28 U .S .C . § 1332 because the matter in controversy exceeds the sum or value of $75,000. While th e re is no actual "diversity" between the plaintiff and all defendants (as plaintiff and the d e f e n d a n t health care providers all reside in Nebraska), Baxter maintains that defendants A s a a d , Welsh, Akbarov, Dudley, Bell, and FRHS were fraudulently joined for the purpose o f defeating diversity. U p o n removing the case to federal court, Baxter promptly sought its transfer to the N o r th e r n District of Ohio by the Judicial Panel on Multidistrict Litigation, as a tag-along case in MDL No. 1953, In re: Heparin Products Liability Litigation. C . T h e Motions to Remand P la in tif f asks that the case be remanded to state court, arguing that this court has n e i th e r diversity nor federal question jurisdiction over his state law claims. D e f e n d a n ts Asaad, Akbarov and FRHS concur. In light of the state law claims a ss e rte d against them, they further argue they should not be subject to the jurisdiction of m u ltid is tric t product liability litigation pending in the Northern District of Ohio. -5-

I I . DISCUSSION A defendant may remove an action from state court to federal court only when a f e d e ra l court would have had original subject matter jurisdiction over the action. 28 U.S.C. § 1441; Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). F e d e ra l district courts have subject matter jurisdiction over cases that meet the standards for d iv e rsity jurisdiction and cases that raise federal questions. Diversity jurisdiction exists w h ere the matter in controversy exceeds the sum or value of $75,000, and the parties are c itiz e n s of different states. 28 U.S.C. § 1332(a). Federal district courts have "federal q u e stio n " jurisdiction over "all civil actions arising under the Constitution, laws, or treaties o f the United States." 28 U.S.C. § 1331. In general, the party invoking federal jurisdiction bears the burden of proving the jurisd iction al requirements. Removal statutes are strictly construed in favor of state court ju ris d ic tio n , and this court must resolve all doubts concerning removal in favor of remand. N a g e l v. Wal-Mart Stores, Inc., 319 F. Supp. 2d 981, (D.N.D. 2004) (citing In re Business M e n 's Assur. Co. of America, 992 F.2d 181, 183 (8th Cir. 1993)). A . D iv e r sity Jurisdiction; 28 U.S.C. § 1332(a); Fraudulent Joinder W h e n a plaintiff joins a non-diverse party as a defendant, "the defendant may avoid re m a n d ­ in the absence of a substantial-federal question­only by demonstrating that the nond i v e rs e party was fraudulently joined." Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th

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C ir. 2003) (citing Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 871 (8th Cir. 2002)). W ith in the Eighth Circuit, the fraudulent-joinder standard has been stated in varying ways. In Wiles, we lo o k e d for a "reasonable basis in fact and law" in the claim alleged. 280 F.3d at 871. In Anderson v. Home Ins. Co., 724 F.2d 82, 84 (8th Cir. 1983), we a rticu late d something close to a dismissal standard, approving a removal to f e d era l court, if "on the face of plaintiff's state court pleadings, no cause of a c tio n lies against the resident defendant." As might be expected, our district c o u rts have used standards that run the gamut ­ from requiring plaintiff to a c tu a lly state a cause of action, to a more lenient threshold requiring a re m o v in g party to show that there is no possibility that the plaintiff will be able to state a cause of action against the resident defendant. E.g., Reeb v. WalM a r t Stores, Inc., 902 F. Supp. 185, 187-88 (E.D. Mo.1995); Parnas v. G e n e r a l Motors Corp., 879 F. Supp. 91, 92 (E.D. Mo.1995). Id . at 809-10 (emphasis in original). The Eighth Circuit, in Filla, ultimately held that a proper review should give paramount consideration to the reasonableness of th e basis underlying the state claim. Where applicable state precedent p re c lu d e s the existence of a cause of action against a defendant, joinder is f ra u d u le n t.... However, if there is a "colorable" cause of action ­ that is, if the s t a te law might impose liability on the resident defendant under the facts a lle g e d ­ then there is no fraudulent joinder.... As we recently stated in Wiles, " ... joinder is fraudulent when there exists no reasonable basis in fact and law s u p p o rtin g a claim against the resident defendants." 280 F.3d at 871. C o n v e rs e ly, if there is a reasonable basis in fact and law supporting the claim, th e joinder is not fraudulent. Id . at 810 (footnote omitted). T h e court reiterated, "[T]he district court's task is limited to determining whether there is arguably a reasonable basis for predicting that the state law might impose liability based u p o n the facts involved. In making such a prediction, the district court should resolve all -7-

f a c ts and ambiguities in the current controlling substantive law in the plaintiff's favor." Id. a t 811. In reviewing a fraudulent-joinder claim, "the court has no responsibility to

d e fin itiv e ly settle the ambiguous question of state law." Id. (emphasis in original). In this lawsuit, the plaintiff contends his medical providers acted negligently in failing to timely diagnose HITT and continuing to administer Heparin. In addition, the Heparin they a d m in iste re d was contaminated. It appears to the court that the plaintiff's claims against all t h e defendants arise out of the same transactions or occurrences and present common q u e stio n s of fact or law, and the claims are properly joined under Neb. Rev. Stat. § 25-320 1 a n d /o r Fed. R. Civ. P. 20(a)(2) 2 . The Baxter defendants' own affirmative allegations tend to d e m o n s tra te the existence of common questions of fact and law as to the administration of H e p a rin by the plaintiff's medical providers. Plaintiff's negligence claims against his medical p ro v id e rs are logically related to his claims against Baxter. There is, arguably, a reasonable b a sis for predicting that Nebraska law might impose liability on the Nebraska defendants b a s e d upon the facts alleged.

Neb. Rev. Stat. § 25-320 provides: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Under Fed. R. Civ. P. 20(a)(2), persons may be joined in one action as defendants if "(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. "
2

1

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A lth o u g h the Baxter defendants say they are amenable to severance of claims to cure th e ir jurisdictional problem, see Fed. R. Civ. P. 21, severance would be inappropriate in light o f Baxter's affirmative allegations that plaintiff's medical providers were responsible for p l a in t if f 's injuries. T h e court thus finds that it cannot exercise diversity jurisdiction in this case. B. F e d e r a l Question Jurisdiction; 28 U.S.C. § 1331 T h is court may exercise federal question jurisdiction over claims arising "under the C o n s titu tio n , laws, or treaties of the United States." 28 U.S.C. § 1331. Absent diversity, a c a s e filed in state court is not removable to federal court unless it affirmatively alleges a f e d e ra l claim. Bates v. Missouri & N. Arkansas R. Co., Inc., -- F.3d ­­, 2008 WL 5047644 a t *1, Case No. 07-3002 (8th Cir., Dec. 1, 2008) (citing Beneficial Nat'l Bank v. Anderson, 5 3 9 U.S. 1, 7-8 (2003)). The Eighth Circuit has recognized that complete preemption provides a narrow e x c ep tio n to the general rule. T h e complete preemption doctrine recognizes that federal law may so wholly d is p la c e a state law cause of action that a state law claim is converted into a f e d e ra l claim from its inception. Krispin v. May Dep't Stores Co., 218 F.3d 9 1 9 , 922 (8th Cir. 2000). Complete preemption is distinguishable from p re e m p tio n as a defense, because the former has jurisdictional implications w h ile the latter does not. "To be completely preemptive, a statute must have 'e x tra o rd in a ry pre-emptive power,' a conclusion courts reach reluctantly." G a m in g Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 543 (8th Cir. 1996) (q u o tin g Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). Id. -9-

In this case, Baxter does not argue complete preemption. Rather, the Baxter d e f en d a n ts contend the plaintiff's state law claims actually arise under the laws of the United S ta te s because Baxter is subject to federal regulation in the manufacture and distribution of H e p a rin . Thus, Baxter urges the court to exercise federal question jurisdiction by application o f the "substantial federal question doctrine." In this regard, the Eighth Circuit has also recognized that even though a cause of a c tio n is created by state law, a case might still arise under the laws of the United States if a well-pleaded complaint establishes that the plaintiff's right to relief under state law requires r e so l u tio n of a substantial question of federal law in dispute between the parties. Nichols v. H a r b o r Venture, Inc., 284 F.3d 857, 860 (8th Cir. 2002) (citing Franchise Tax Bd. v. Constr. L a b o r e r s Vacation Trust, 463 U.S. 1, 13 (1983)). To fall within this exception, the case must p re se n t some substantial, disputed question of federal law as a necessary element of the p l a in t if f 's state-law claims, id., or present a situation where the vindication of a right under s ta te law necessarily turns on some construction of federal law. Little v. Purdue Pharma, L .P ., 227 F. Supp. 2d 838, 853 (S.D. Ohio 2002). U n d e r Nebraska law, proof that the defendants violated a statute or regulation does n o t necessarily prove negligence or liability, although evidence of such a violation may be c o n s id e re d in determining whether a party was negligent. See generally NJI2d Civ. 3.03. W h ile it is likely that Baxter's compliance with federal statutes and regulations will be a

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s u b je c t of inquiry in this case, it would not be necessary for the plaintiff to prove any such v iolatio n in order to prevail on any of his claims against Baxter. U n d e r these circumstances, the court finds that Merrell Dow Pharm. Inc. v. T h o m p s o n , 478 U.S. 804 (1986), is controlling. In Merrell Dow, the plaintiff raised six statela w claims, including a claim based on allegations that the drug manufactured by the d e f en d a n t was misbranded in violation of the Food, Drug, and Cosmetic Act (FDCA). The C o u rt held that the case was properly remanded to federal court, observing that the FDCA d id not provide a federal cause of action, and "the mere presence of a federal issue in a state c a u se of action does not automatically confer federal-question jurisdiction." 478 U.S. at 813. " [T ]h e congressional determination that there should be no federal remedy for the violation o f this federal statute is tantamount to a congressional conclusion that the presence of a c laim e d violation of the statute as an element of a state cause of action is insufficiently 's u b s ta n t ia l' to confer federal-question jurisdiction." Id. at 814. The Court concluded a complaint alleging a violation of a federal statute as an element of a state c a u se of action, when Congress has determined that there should be no private, f e d era l cause of action for the violation, does not state a claim "arising under th e Constitution, laws, or treaties of the United States." M e rr e ll Dow, 478 U.S. at 817. Baxter relies largely on Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U .S . 308 (2005), in support of its argument in favor of federal question jurisdiction. I defer to the Supreme Court's own summary of its decision in Grable:

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G ra b le involved real property belonging to Grable & Sons Metal Products, In c . (Grable), which the Internal Revenue Service (IRS) seized to satisfy a f e d era l tax deficiency. 545 U.S., at 310, 125 S. Ct. 2363. Grable received n o tic e of the seizure by certified mail before the IRS sold the property to Darue E n g in e e rin g & Manufacturing (Darue). Ibid. Five years later, Grable sued D a ru e in state court to quiet title. Grable asserted that Darue's record title was in v a lid because the IRS had conveyed the seizure notice improperly. Id., at 3 1 1 , 125 S. Ct. 2363. The governing statute, 26 U.S.C. § 6335(a), provides th a t "notice in writing shall be given ... to the owner of the property ... or shall b e left at his usual place of abode or business...." Grable maintained that § 6 3 3 5 (a ) required personal service, not service by certified mail. 545 U.S., at 3 1 1 , 125 S. Ct. 2363. D a ru e removed the case to federal court. Alleging that Grable's claim of title depended on the interpretation of a federal statutory provision, i.e., § 6 3 3 5 (a ) of the Internal Revenue Code, Darue invoked federal-question ju ris d ic tio n under 28 U.S.C. § 1331. We affirmed lower court determinations th a t the removal was proper. "The meaning of the federal tax provision," we s a id , "is an important issue of federal law that sensibly belongs in a federal c o u rt." 545 U.S., at 315, 125 S. Ct. 2363. Whether Grable received notice a d e q u ate under § 6335(a), we observed, was "an essential element of [ G r a b le 's ] quiet title claim"; indeed, "it appear[ed] to be the only ... issue c o n te s te d in the case." Ibid. E m p ir e Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699-700 (2006). The court held th a t the case warranted federal jurisdiction: G ra b le 's state complaint must specify "the facts establishing the superiority of [ its ] claim," Mich. Ct. Rule 3.411(B)(2)(c) (West 2005), and Grable has p re m ise d its superior title claim on a failure by the IRS to give it adequate n o tic e , as defined by federal law. Whether Grable was given notice within the m e a n i n g of the federal statute is thus an essential element of its quiet title claim , and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case. The meaning of the f e d era l tax provision is an important issue of federal law that sensibly belongs in a federal court. The Government has a strong interest in the "prompt and c e r ta in collection of delinquent taxes," United States v. Rodgers, 461 U.S. 677, 7 0 9 , 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983), and the ability of the IRS to -12-

s a tis f y its claims from the property of delinquents requires clear terms of n o tic e to allow buyers like Darue to satisfy themselves that the Service has to u c h e d the bases necessary for good title. The Government thus has a direct in te re s t in the availability of a federal forum to vindicate its own a d m in istra tiv e action, and buyers (as well as tax delinquents) may find it v a l u a b le to come before judges used to federal tax matters. Finally, because it will be the rare state title case that raises a contested matter of federal law, f e d e ra l jurisdiction to resolve genuine disagreement over federal tax title p ro v is io n s will portend only a microscopic effect on the federal-state division o f labor.... 545 U.S. at 315-16 (footnote omitted). Significantly, the Grable Court found that its decision in Merrell Dow was "not to the contrary." Merrell Dow considered a state tort claim resting in part on the allegation that th e defendant drug company had violated a federal misbranding prohibition, a n d was thus presumptively negligent under Ohio law. [478 U.S.] at 806, 106 S . Ct. 3229. The Court assumed that federal law would have to be applied to re so lv e the claim, but after closely examining the strength of the federal in te re st at stake and the implications of opening the federal forum, held federal ju ris d ic tio n unavailable. Congress had not provided a private federal cause of a c tio n for violation of the federal branding requirement, and the Court found " it would ... flout, or at least undermine, congressional intent to conclude that f e d era l courts might nevertheless exercise federal-question jurisdiction and p ro v id e remedies for violations of that federal statute solely because the v i o la tio n ... is said to be a ... 'proximate cause' under state law." Id., at 812, 1 0 6 S. Ct. 3229. T h e Court advised that Merrell Dow should be read in its entirety as treating the absence of a federal p r i v a te right of action as evidence relevant to, but not dispositive of, the " se n sitiv e judgments about congressional intent" that § 1331 requires. The a b se n c e of any federal cause of action affected Merrell Dow's result two ways. T h e Court saw the fact as worth some consideration in the assessment of s u b s ta n tia lity. But its primary importance emerged when the Court treated the c o m b i n a tio n of no federal cause of action and no preemption of state remedies f o r misbranding as an important clue to Congress's conception of the scope of -13-

ju ris d ic tio n to be exercised under § 1331. The Court saw the missing cause of a c tio n not as a missing federal door key, always required, but as a missing w e lc o m e mat, required in the circumstances, when exercising federal ju ris d ic ti o n over a state misbranding action would have attracted a horde of o rig in a l filings and removal cases raising other state claims with embedded f e d era l issues. For if the federal labeling standard without a federal cause of a c tio n could get a state claim into federal court, so could any other federal sta n d a rd without a federal cause of action. And that would have meant a tr e m e n d o u s number of cases. G ra b le , 545 U.S. at 318. T h e Supreme Court subsequently emphasized in Empire that the dispute in Grable " ce n te re d on the action of a federal agency (IRS) and its compatibility with a federal statute, th e question qualified as 'substantial,' and its resolution was both dispositive of the case and w o u ld be controlling in numerous other cases." Empire Healthchoice Assur., Inc. v.

M c V e ig h , 547 U.S. at 700. Thus, while "'arising under' federal jurisdiction over state law c laim s may be present if there is no federal cause of action," the circumstances in which this is true are quite rare. Allen v. GlaxoSmithKline PLC, 2008 WL 2247067 at *8, No. 07-5045 (E .D . Pa., May 30, 2008) (citing Empire, 547 U.S. at 701). Generally, for pharmaceutical products liability cases filed in state court a n d raising FDCA-related state law claims, federal "arising under" jurisdiction d o e s not exist pursuant to Merrell Dow. See e.g. Greene v. Novartis P h a r m a c e u tic a ls Corp., 2007 WL 3407429 (M.D. Ga. 2007) (remanding case w h e re plaintiff alleged that defendant pharmaceutical manufacturer fra u d u len tly misrepresented drug's safety and failed to warn of drug's dangers); C a g g ia n o v. Pfizer, Inc., 384 F. Supp. 2d 689 (S.D.N.Y. 2005) (remanding c a s e where plaintiff alleged "classic state-law claims [but] the complaint [was] a ls o peppered with allegations that the defendants violated various federal sta tu tes and regulations ... for example ... that defendants deliberately failed to see k required FDA approval for many uses ..."). -14-

A lle n , 2008 WL 2247067 at *9. Cf. Greene v. Novartis Pharmaceuticals Corp., 2007 WL 3 4 0 7 4 2 9 , No. 07-00091 (M.D. Ga., Nov. 14, 2007) (presence of potential federal defenses to product liability claim held insufficient to confer federal question jurisdiction). In the case at bar, the plaintiff's claims do not arise under federal law. In order to p re v a il on his state law claims against Baxter, the plaintiff need not prove any violation of a federal law or regulation. In his claims for fraudulent and negligent misrepresentation, the p la in tif f alleges that Baxter provided false or misleading information to the FDA. Even a ss u m in g that the complaint states a claim of fraud on the FDA, "a fraud on the FDA claim d o e s not trigger federal jurisdiction." Allen, 2008 WL 2247067 at *10. Although the p h a rm a c eu tic a l industry is subject to comprehensive federal regulation, Baxter was not o p era tin g under the direction of any federal officer. See Little v. Purdue Pharma, L.P., 227 F . Supp. 2d at 161-62. Finally, the resolution of plaintiff's claims will require fact-specific in q u i ry and will not be controlling in numerous other cases. F o r these reasons, the court finds that plaintiff's complaint does not raise any s u b s ta n tia l federal question and the court cannot exercise federal question jurisdiction p u rs u a n t to 28 U.S.C. § 1331. R E C O M M E N D A T IO N B e c a u se this court cannot exercise jurisdiction over the plaintiff's claims pursuant to e ith e r 28 U.S.C. § 1331 or 28 U.S.C. § 1332,

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I T IS RECOMMENDED 1 . th a t Baxter's Motion to stay proceedings pending transfer by the Judicial Panel on M u ltid is tric t Litigation (Doc. 10) be denied, 2 . th a t Plaintiff's motion to remand this matter to state court (Doc. 17) be granted, and 3 . t h a t the Motion to Remand (Doc. 20) filed by defendants Hakam Asaad, Alec A k b a ro v and Faith Regional Health Services be granted. P u r s u a n t to NECivR 72.3, a party may object to a this Report and Recommendation b y filing an "Objection to Report and Recommendation" within ten (10) days after being s e rv e d with the recommendation. The statement of objection shall specify those portions of th e recommendation to which the party objects and the basis of the objection. The objecting p a r ty shall file contemporaneously with the statement of objection a brief setting forth the p a rty's arguments that the magistrate judge's recommendation should be reviewed de novo a n d a different disposition made. D A T E D December 3, 2008. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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