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February 26, 1996

In re AMINO ACID LYSINE ANTITRUST LITIGATION (This document relates only to Civil Action No. 96 C 531); JACK ASHLEY, individually, etc., Plaintiff,
ARCHER DANIELS MIDLAND CO., et al., Defendants.

The opinion of the court was delivered by: SHADUR

 This action, originally filed in the United States District Court for the Northern District of Alabama, Middle Division, has come to this Court under the auspices of the Judicial Panel for Multidistrict Litigation ("MDL Panel"). But the procedures that led to that transfer also created a situation in which the record that had been transmitted to the MDL Panel and that was then forwarded here did not include the entire record in the originating court. *fn1" It was not until this Court recently received a computer printout of all pending motions in the cases on its calendar that it learned of a previously unknown motion in what has now become Case No. 96 C 531--a motion seeking to remand the case to the Alabama state court from which it had emanated. This Court's follow-up inquiry of the litigants then brought it copies of the memoranda that had been submitted to the Alabama District Court, which had caused the motion to become fully briefed.

 At this point, then, the motion is ripe for decision. For the reasons stated here, this Court holds that the motion is well-taken and that an immediate remand is therefore in order.

 As the case caption reflects, plaintiff Jack Ashley ("Ashley"), like the plaintiffs in each of the other actions placed on this Court's plate pursuant to the MDL Panel's orders, has filed a purported class action. But unlike each of those other lawsuits, all of which assert violations of the federal antitrust laws, Ashley and his counsel have been meticulous in framing their Complaint *fn2" in terms of claimed violations of the Alabama antitrust statutes alone (Complaint PP16 and 64). Indeed, the plaintiff class is defined in Ashley's Complaint P26 in terms of persons or entities who purchased lysine or lysine products indirectly from defendants or their alleged coconspirators--a claim that cannot be advanced against alleged price fixers under federal law ( Illinois Brick Co. v. Illinois, 431 U.S. 720, 52 L. Ed. 2d 707, 97 S. Ct. 2061 (1977)) but that is viable under Alabama state law (Ala. Code §§ 6-5-60 and 8-10-1). And equally mindful of their desire to remain ensconced in the state court system, Ashley's counsel have sought to scotch any possibility of federal diversity jurisdiction by setting this express limitation on the damages sought to be recovered (Complaint P8 and Prayer for Relief G.c):

8. Plaintiff and the plaintiff class seek relief in the form of statutory damages and in lieu of any actual damages. Each member of the class, on information and belief, as well as the named plaintiff herein, on certain knowledge, has incurred statutory damages under the laws of Alabama in the amount if Five Hundred and No/100 ($ 500.00) Dollars for each injury and neither plaintiff nor any other member of the class seeks damages exceeding Fifty Thousand and No/100 ($ 50,000.00) Dollars, nor do their damages individually exceed Fifty Thousand and No/100 ($ 50,000.00) Dollars.
* * *
WHEREFORE, plaintiff prays that:
c. plaintiff and each member of the plaintiff class recover the sum of Five Hundred and No/100 ($ 500.00) Dollars in statutory damages and in lieu of actual damages, for each instance of injury or damage suffered by reason of defendants' violation of sections 6-5-60 and 8-10-1 of the Alabama Code, and that joint and several judgment be entered against each defendant in favor of plaintiff and each of the class members.

 Just as eager to escape the state court in favor of a federal court as Ashley and his counsel are to remain in the state court, defendants' counsel have tendered a number of arguments in claimed support of federal jurisdiction. Some of those appear to be ingenuous, some appear ingenious--but save for one possibility, they are without exception clearly lacking in substantive merit. And that one arguable contention, discussed later in this opinion, does not carry the day for them either.

 As for federal subject matter jurisdiction generally, no proposition remains more firmly in place today than that voiced more than eight decades ago by Justice Holmes in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913):

Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a "suit arising under" the patent or other law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense, even when anticipated and replied to in the bill.

 Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987), quoting The Fair and some later cases (id. n.7), tells us that the plaintiff-as-master doctrine is still alive and well and living in Washington:

Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal-question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. See Gully v. First National Bank, 299 U.S. 109, 112-13, 81 L. Ed. 70, 57 S. Ct. 96 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

 There is of course a limited exception to that principle that has developed its primary force in recent years, one that tells us that no "artful pleader" can avoid the federal courts by disguising what is really a federal-question claim as a state law claim (see, e.g., 482 U.S. at 397 and Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981)). But that exception, which focuses on federal statutes whose preemptive force is so "extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule" ( Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1987)), has been applied by the Supreme Court in only two instances: in cases raising claims preempted by Labor Management Relations Act § 301, 29 U.S.C. § 185(a) ( Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983)) and cases raising claims preempted by ERISA (see Metropolitan Life). Despite defendants' urging, the "artful pleader" exception does not extend to Ashley's state law antitrust claim--not only is there an absence of complete preemption of that field by federal law, but a unanimous Supreme Court has ...

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