MURPHY, District Judge:
This case, which comes to the Court via removal from state court, is before the
The Court turns first to the issue of whether this case is within so-called "federal question" jurisdiction. In general, of course, "[t]he district courts shall have original jurisdiction of all civil actions
The substantial federal question doctrine has proven somewhat elusive and has even been pronounced dead on occasion by the lower federal courts. See, e.g., International Armor & Limousine Co. v. Moloney Coachbuilders, Inc., 272 F.3d 912, 915 (7th Cir.2001); Seinfeld v. Austen, 39 F.3d 761, 764 (7th Cir.1994); Dudley v. Putnam Int'l Equity Fund, Civil Nos. 03-852-GPM, 03-853-GPM, 2004 WL 5239426, at *2 (S.D.Ill. Jan. 27, 2004). However, in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), the Court both affirmed the continuing vitality of the doctrine and furnished important guidance as to its application. In Grable the Court addressed what it termed "another longstanding, if less frequently encountered, variety of federal `arising under' jurisdiction, . . . having recognized for nearly 100 years that in certain cases federal-question jurisdiction will lie over state-law claims that implicate significant federal issues." Id. at 312, 125 S.Ct. 2363. The Grable Court set out the test for determining whether a "substantial question of federal law" sufficient to warrant removal exists as follows: "[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. at 314, 125 S.Ct. 2363. In so doing, the Court emphasized that merely alleging a "federal issue" does not operate "as a password opening federal courts to any state action embracing a point of federal law." Id. Moreover, since Grable was decided the Court has clarified that "Grable emphasized that it takes more than a federal
In this instance, the meaning of a federal regulation is not in dispute. See Bennett v. Southwest Airlines Co., 484 F.3d 907, 910 (7th Cir.2007) (noting that "a fact-specific application of rules that come from both federal and state law rather than a context-free inquiry into the meaning of a federal law" does not constitute a substantial, disputed question of federal law within the meaning of Grable). Also, it is apparent to the Court that this is not the type of state-law case that will "rare[ly]" present a question of federal law and thus have "only a microscopic effect on the federal-state division of labor." Grable, 545 U.S. at 315, 125 S.Ct. 2363. In the Court's experience, state-law claims of which a violation of federal law is an element are routine in cases alleging personal injuries caused by prescription medication, and to treat such cases as arising under federal law would have the effect of shifting virtually every such case from state court to federal court, a massive disruption of the proper balance of power as between state courts and federal courts. As the Grable Court observed,
Id. at 313-14, 125 S.Ct. 2363. Moreover, the Grable Court recognized that "[t]he violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings." Id. at 318, 125 S.Ct. 2363. In sum, it is not the case that a finding of federal subject matter jurisdiction in this instance will have only a de minimis effect on state-court jurisdiction. Accordingly, the Court does not believe that it has jurisdiction in this instance pursuant to 28 U.S.C. § 1331.
The Court turns to the second basis for federal subject matter jurisdiction asserted by Defendants, diversity of citizenship. In general, federal courts have original subject matter jurisdiction in diversity in cases in which there is complete diversity of citizenship among the parties to an action and in which an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C. § 1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547 (7th Cir.2008); Glisson v. Matrixx Initiatives, Inc., Civil No. 10-76-GPM, 2010 WL 685894, at *1 (S.D.Ill. Feb. 22, 2010). Complete diversity of citizenship means, of course, that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entm't Co., 106 F.3d 215, 217 (7th Cir.1997). See also Krueger v. Cartwright, 996 F.2d 928, 931 (7th Cir.1993) ("Under the rule of complete diversity, if there are residents of the same state on both sides of a lawsuit, the
It appears from the allegations of Plaintiffs' complaint, which assert that Plaintiffs have suffered severe and permanent personal injuries as a result of taking Levaquin, that an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 514-15 (7th Cir.2006); Leggitt v. Wal-Mart Stores, Inc., Civil No. 10-245-GPM, 2010 WL 1416833, at *2 (S.D.Ill. Apr. 5, 2010). However, diversity of citizenship is not complete. First, several Plaintiffs are suing as legal representatives of others, including: Marcia Barber, who sues on behalf of the estate of John Barber; Virginia McLaren, who sues on behalf of the estate of John Johnson; Richard Nelson, who sues on behalf of the estate of Elizabeth Nelson; Edricca Snow, who sues on behalf of the estate of Eddie Jones; Diane Terry, who sues on behalf of the estate of Naomi Tucker; and Gary Watkins, who sues on behalf of the estate of Martha Watkins. It appears from the record that Marcia Barber is a citizen of Utah, Virginia McLaren is a citizen of Texas, Richard Nelson and Gary Watkins are citizens of Ohio, Edricca Snow is a citizen of Michigan, and Diane Terry is a citizen of New Jersey. However, the record is not clear as to the state citizenship of the persons on whose behalf those Plaintiffs are suing, which, as noted, is the jurisdictionally-relevant citizenship. Second, Defendants' notice of removal alleges that J & J Pharmaceutical, an LLC, is incorporated under New Jersey law and has its principal place of business in New Jersey. As noted, the citizenship of an LLC is determined by the citizenship of the LLC's member or members, and here Defendants entirely fail to allege the identity of any members of J & J Pharmaceutical and their citizenship for diversity purposes. Finally, Plaintiffs Angela Drinkard and Patricia Williams are citizens of New Jersey, as are J & J and Ortho-McNeil-Janssen Pharmaceuticals, Inc. ("Ortho-McNeil-Janssen") (it appears that Plaintiffs have incorrectly sued Ortho-McNeil and Janssen as separate entities when in fact they are the same entity). In the notice of removal in this case J & J is alleged to be a corporation incorporated under New Jersey law with its principal
Defendants contend that the Court can exercise jurisdiction in diversity pursuant to the doctrine of fraudulent joinder to defeat diversity jurisdiction. In evaluating diversity of citizenship, a court must disregard a defendant that has been fraudulently joined. See Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d 875, 878 (7th Cir.1999); LaRoe v. Cassens & Sons, Inc., 472 F.Supp.2d 1041, 1045 (S.D.Ill.2006). In the Seventh Circuit a defendant is fraudulently joined when "there is no possibility that a plaintiff can state a cause of action against [the] nondiverse defendant[ ] in state court, or where there has been outright fraud in plaintiff's pleading of jurisdictional facts." Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). See also Hoosier Energy Rural Elec. Coop., Inc. v. Amoco Tax Leasing IV Corp., 34 F.3d 1310, 1315 (7th Cir.1994); Smith v. Merck & Co., 472 F.Supp.2d 1096, 1098 (S.D.Ill.2007). A defendant seeking removal based on alleged fraudulent joinder has the "heavy burden" of proving that, after the court resolves all issues of law and fact in the plaintiffs favor, there is no possibility that the plaintiff can establish a cause of action against the diversity-defeating defendant in a state court. Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir.1992); Bankcroft v. Bayer Corp., Civil No. 09-787-GPM, 2009 WL 3156706, at *2 (S.D.Ill. Sept. 29, 2009). The standard under which a claim of fraudulent joinder must be evaluated, the United States Court of Appeals for the Seventh Circuit suggested recently, may be "even more favorable to the plaintiff than the standard that applies to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)." Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 764 (7th Cir. 2009). See also Thompson v. Cottrell, Inc., Civil No. 10-124-GPM, 2010 WL 850183, at *2 (S.D.Ill. Mar. 8, 2010).
Here Defendants allege neither fraud in Plaintiffs' pleading of jurisdictional facts nor that Plaintiffs cannot establish a cause of action under state law against the diversity-defeating Defendants, J & J and Ortho-McNeil-Janssen. Instead, Defendants contend that the claims of Angela Drinkard and Patricia Williams have been
The Court does not believe it is necessary at this juncture to recite all of the contents of its opinion in Rutherford verbatim, and instead the Court will restate briefly the reasons for rejecting the fraudulent misjoinder doctrine set out in the opinion. In the Rutherford decision the Court pointed out that the fraudulent misjoinder doctrine is contrary to settled judicial understanding of the scope of federal diversity jurisdiction on removal. The Court observed that the jurisprudence of both the United States Supreme Court and the Seventh Circuit Court of Appeals regarding fraudulent joinder to defeat diversity jurisdiction has never suggested that a misjoinder of legally viable and non-fraudulent claims under state law is a species of fraudulent joinder, and in fact the longstanding principle in the federal courts has been that questions of joinder, particularly under state rules of civil procedure, do not implicate federal subject matter jurisdiction. See 428 F.Supp.2d at 851. The Court noted further that because the basis for the exercise of federal jurisdiction on removal is entirely statutory and concerns the proper balance of power as between federal courts and state courts, the limits of that jurisdiction must be narrowly defined and any enlargement thereof is to be undertaken by Congress, not the federal courts. See id. at 852.
Finally, the Court surveyed case law attempting to apply the fraudulent misjoinder doctrine and observed that courts have struggled with virtually every aspect of the meaning and scope of the doctrine, including: whether a mere misjoinder of parties or claims can constitute fraudulent misjoinder or if an egregious misjoinder is required; what constitutes an egregious misjoinder of parties or claims; and whether fraudulent misjoinder is to be tested using federal procedural rules governing joinder or state procedural rules governing joinder. See Rutherford, 428 F.Supp.2d at 852-54 & n. 2 (collecting cases).
The removing Defendants have offered the Court no grounds to depart from its prior reasoning in Rutherford, and therefore the Court adheres to that reasoning. Accordingly, it appears to the Court that, just as there is no federal question jurisdiction here, so too there is no diversity jurisdiction. The Court notes that it was advised recently by counsel for the parties that they currently are working toward an agreement of some kind as to the proper jurisdiction for this case, either state or federal. It is unclear to the Court what form such an agreement might take as regards federal jurisdiction. In the removal context, of course, federal subject matter jurisdiction must exist both when a case is filed and when it is removed. See Kanzelberger v. Kanzelberger, 782 F.2d 774, 776-77 (7th Cir.1986) (citing 28 U.S.C. § 1441(a)); Newsom v. Caliber Auto Transfer of St. Louis, Inc., Civil No. 09-954-GPM, 2010 WL 415388, at *1 (S.D.Ill. Feb. 1, 2010). Where a case has been removed in diversity jurisdiction but complete diversity of citizenship is lacking at the time the case was filed and removed, the jurisdictional defect is deemed cured if complete diversity exists at the time judgment is entered in the case. At the point when judgment is entered, the United States Supreme Court has instructed, objections to subject matter jurisdiction "run up against an overriding consideration. Once a diversity case has been tried in a federal court, with rules of decision supplied by state law under the regime of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), considerations of finality, efficiency, and economy become overwhelming." Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). See also Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 700, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972) (erroneous removal need not cause destruction of a final judgment if the requirements of subject matter jurisdiction are satisfied when the judgment is entered). Here, of course, this case has only just begun, and considerations of finality have no part to play in determinations about the existence of subject matter jurisdiction in this case. Also, the Court reminds counsel for the parties that federal subject matter jurisdiction cannot be created by consent. See United States v. Tittjung, 235 F.3d 330, 335 (7th Cir.2000) ("No court may decide a case without subject matter jurisdiction, and neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction."); Sadat v. Mertes, 615 F.2d 1176, 1188 (7th Cir.1980) (stating that "the limited jurisdiction of the federal courts" dictates that "jurisdiction otherwise lacking cannot be conferred by consent, collusion,
The parties to this case are hereby
By order entered April 21, 2010, the Court directed the parties to this case, which is before the Court on removal from Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, to show cause why this case should not be remanded to state court for lack of federal subject matter jurisdiction. Plaintiffs, who claim to have suffered personal injuries as a result of using Levaquin, a prescription medication manufactured and distributed by Defendants, now have filed a motion for remand of this case to state court (Doc. 11). Defendants have filed a brief in response to the April 21 order. In the April 21 order the Court outlined the nature of the claims in this case and the procedural history of the case and set out in detail the reasons that the Court does not believe that federal jurisdiction exists in this case pursuant to either 28 U.S.C. § 1331, socalled "federal question" jurisdiction, or 28 U.S.C. § 1332, jurisdiction based upon diversity of citizenship. See Baker v. Johnson & Johnson, Civil No. 10-283-GPM, 2010 WL 1802171 (S.D.Ill. Apr. 21, 2010). The Court sees no reason to repeat that recitation here. Accordingly, in this Order, in which the Court grants Plaintiffs' motion for remand of this case to state court, the Court will merely address certain points raised by Defendants in their response to the April 21 order to show cause.
As an initial matter, the Court notes the standard under which it must evaluate Plaintiffs' motion for remand. Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). Defendants in this case, as the proponents of federal subject matter jurisdiction, have the burden of establishing such jurisdiction. See Lyerla v. Amco Ins. Co., 461 F.Supp.2d 834, 835 (S.D.Ill.2006) (citing Meridian Sec. Ins. Co. v. Sadowski
The Court turns first to the matter of whether this case presents a substantial question of federal law for purposes of removal pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441(c) by virtue of Plaintiffs' assertion of a claim of negligence per se based upon alleged violations of a federal regulation by Defendants. As the Court discussed in its April 21 order, a case in which a breach of a duty created by federal law is merely an element of a claim arising under state law is not removable to federal court as an action "arising under" federal law within the meaning of Section 1331. See Baker, 2010 WL 1802171, at *2 (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 701, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006)) ("[I]t takes more than a federal element to open the `arising under' door[.]") (internal citation omitted). See also Bennett v. Southwest Airlines Co., 484 F.3d 907, 912 (7th Cir.2007) (quoting 28 U.S.C. § 1331) ("That some standards of care used in tort litigation come from federal law does not make the tort claim one `arising under' federal law."); Fuller v. BNSF Ry. Co., 472 F.Supp.2d 1088, 1094-96 (S.D.Ill.2007) (a claim of negligence per se based on a violation of a federal regulation governing railroad safety did not present a substantial federal question for purposes of removal). The Court remains persuaded that this case arises under state law, not federal law.
The gist of Defendants' response to the Court's April 21 order is chiefly that in the order the Court gave no weight to In re Zyprexa Products Liability Litigation, 375 F.Supp.2d 170 (E.D.N.Y.2005). This is true, but it also is irrelevant. The opinion of a sister federal trial court is not binding on this Court. See Colby v. J.C. Penney Co., 811 F.2d 1119, 1123-24 (7th Cir.1987); Dudley v. Putnam Inv. Funds, 472 F.Supp.2d 1102, 1105 (S.D.Ill.2007). Moreover, the Court finds Zyprexa unpersuasive and at odds with decisions of the United States Court of Appeals for the Seventh Circuit such as Bennett, which, unlike Zyprexa, the Court is required to follow. See United States v.
The Court turns last to the matter of whether federal jurisdiction is proper pursuant to 28 U.S.C. § 1332, which grants federal courts original jurisdiction in cases in which there is complete diversity of citizenship among the parties to a case and in which an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See Baker, 2010 WL 1802171, at *3. It is undisputed that complete diversity of citizenship is lacking as between two of the sixty Plaintiffs in this case and at least one Defendant. Defendants urge the Court to sever the claims in this case to create complete diversity, contending that the Court, in evaluating its jurisdiction, has a duty to inquire into the propriety of the joinder of claims in this case. The Court does not agree. It is well settled that issues concerning joinder and subject matter jurisdiction are separate and distinct, such that joinder under Rule 20 of the Federal Rules of Civil Procedure has no bearing on the existence of federal jurisdiction and the rules governing joinder cannot be employed, as Defendants contend, to enlarge the scope of such jurisdiction. "[T]he federal courts traditionally have held that matters of state civil procedure, including . . . joinder of parties and claims, have no bearing on the existence or nonexistence of federal subject matter jurisdiction in a given case. . . . The lower federal courts likewise traditionally have recognized that `[t]he question of jurisdiction cannot be determined by the rules of joinder.'" Rutherford v. Merck & Co., 428 F.Supp.2d 842, 851 (S.D.Ill.2006) (quoting Smith v. Abbate, 201 F.Supp. 105, 113 (S.D.N.Y.1961)). See also Bavone v. Eli Lilly & Co., Civil No. 06-153-GPM, 2006 WL 1096280, at *3 (S.D.Ill. Apr. 25, 2006) (noting that "[n]othing in the jurisprudence of the Supreme Court of the United States . . . suggests that the joinder of non-fraudulent claims under state procedural rules is a question that implicates the subject matter jurisdiction of a federal court.").
While it is the case that, as masters of their complaint, plaintiffs may use Rule 21 of the Federal Rules of Civil Procedure to dismiss non-diverse parties from an action to preserve diversity jurisdiction, that rule has not been used in the reverse,
Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 410 (7th Cir.2000) (citations omitted). See also 13F Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3641.1 (3d ed. 1998 & Supp. 2009) ("[I]n cases in which the plaintiff attempts to defeat federal subject matter jurisdiction by the joinder of a nondiverse plaintiff, the federal courts will allow the transaction . . . if that person is deemed a real party in interest[.]") (collecting cases). It is apparent from the record of this case that diversity jurisdiction existed neither when the case was filed nor when it was removed. See Kanzelberger v. Kanzelberger, 782 F.2d 774, 776 (7th Cir.1986) (citing 28 U.S.C. § 1441(a)) ("[T]he required diversity must exist both when the suit is filed . . . and when it is removed[.]"); Tullis v. WalMart Stores, Inc., Civil No. 09-935-GPM, 2009 WL 3756640, at *2 (S.D.Ill. Nov. 9, 2009) (testing the issue of complete diversity of citizenship both at the time a case was filed and the time it was removed). The Court finds that complete diversity of citizenship does not exist in this case.
Plaintiffs' motion for remand (Doc. 11) is
