MEMORANDUM OPINION AND ORDER
This newly removed action, initially brought by Richard Kruse ("Kruse") against DuPont Merck Pharmaceutical Co. ("DuPont Merck") in the Circuit Court of Cook County, has been assigned to this Court's calendar. Based on its review of Kruse's Complaint and DuPont Merck's Notice of Removal ("Notice"),
this sua sponte memorandum opinion and order remands the action to its place of origin for lack of subject matter jurisdiction.
Even though Kruse's carefully drawn Complaint is expressly limited to a claim advanced under the Illinois Consumer Fraud and Deceptive Business Practice Act (815 ILCS 505/1 to 505/12), DuPont Merck says that it knows better. Notice at 2-3 asserts:
Additionally, although plaintiff purports to bring his claims under the Illinois Consumer Fraud and Deceptive Business Practice Act, the real nature of his claim is federal. The plaintiff alleges that he was forced to pay a supracompetitive price for Coumadin as a result of alleged anticompetitive exclusionary conduct by DuPont Merck. The plaintiff thus has artfully pleaded around the federal statute under which his claims should properly be brought, the Sherman Act, Section 2. 15 U.S.C. § 2. Indeed, plaintiff's counsel alleged the same misconduct on behalf of the same class of consumers as a federal Sherman Act case in the two Delaware District Court actions. Under the artful pleading doctrine, a federal court has jurisdiction over a complaint alleging state law claims when, as here, the real nature of the claim is federal.
But it is instead DuPont Merck's counsel that is attempting artful pleading--and it simply won't work. This case fits well within the still-seminal teaching of The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913)--"the party who brings a suit is master to decide what law he will rely upon." To draw upon one of the many anecdotes ascribed to Abraham Lincoln, DuPont Merck's calling Kruse's lawsuit an antitrust action just because the challenged conduct might also violate the Sherman Act "don't make it so."
So DuPont Merck's invocation of federal question jurisdiction fails. And although Notice at 1 also asserts the existence of diversity jurisdiction, DuPont Merck has fallen short on that score as well. Complaint P4 identifies Kruse as an Illinois resident, and Notice at 1 expands that to assert his Illinois citizenship--so far, so good. But all that Notice at 1 says about DuPont Merck itself is that "it is a Delaware citizen." In that respect, though, Complaint P5 alleges:
DuPont Merck is a 50/50 joint venture between E.I. DuPont de Nemours & Co. and Merck & Co., Inc. with its principal place of business in Wilmington, Delaware.