Appeal from the United States District Court for the Southern District of Illinois. No. 01 C 610--Michael J. Reagan, Judge.
Before Bauer, Manion, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Manion, Circuit Judge
ARGUED SEPTEMBER 18, 2002
Plaintiffs, who are consumers of Tyson chicken, sued in state court alleging that Tyson fraudulently infused its chicken products with water and concealed the deceptive practice from consumers. Tyson removed the lawsuit to federal court. Plaintiffs appeal the district court's denial of their motion to remand to state court and the subsequent dismissal of this case. Because we conclude that the district court lacked the federal question jurisdiction necessary to remove this action from state court, we reverse with instructions to remand this suit to state court.
Tyson Foods, Incorporated ("Tyson") sells chicken throughout the United States. Timothy and Wendy Rogers, and Alan Westfall, ("plaintiffs") consume Tyson chicken. On August 14, 2001, plaintiffs filed a putative class action in the Madison County, Illinois Circuit Court against Tyson, alleging that Tyson violated the Illinois Consumer Fraud and Deceptive Trade Practices Act, 815 ILES § 505/1, et seq., by inflating the weight of chicken carcasses with water during the processing of the chicken, and by concealing this practice from the public. Plaintiffs' first claim was for consumer fraud under the Illinois statute. Plaintiffs' second claim was for unjust enrichment.
Pursuant to 28 U.S.C. § 1441(a), Tyson timely removed this case to the United States District Court for the Southern District of Illinois. In its notice of removal, Tyson alleged that the district court had federal question jurisdiction because the Poultry Products Inspection Act, 21 U.S.C. § 451, et seq. ("PPIA"), triggers the doctrine of complete preemption. Plaintiffs filed a motion to remand, and Tyson filed a motion to dismiss. The district court denied the motion to remand, basing its decision on the PPIA's preemption clause, 21 U.S.C. § 467e. Section 467e declares that "[m]arking, labeling, packaging, or ingredient requirements (or storage or handling requirements found by the Secretary to unduly [sic] interfere with the free flow of poultry products in commerce) in addition to, or different than, those made under this chapter may not be imposed by any State or Territory or the District of Columbia . . . ." 21 U.S.C. § 467e. The district court reasoned that § 467e "completely preempts [state] marking, labeling, packaging, and ingredient requirements for poultry [and that] [p]laintiffs' claims fall within the scope of the preempted field." The district court then granted Tyson's motion to dismiss, reasoning that the PPIA provides plaintiffs with no basis for relief. On appeal, plaintiffs contend that the district court lacked jurisdiction over this case and therefore erred in denying their motion to remand.
Because the propriety of removing a state action to federal court is a question of federal jurisdiction, we review de novo the denial of a motion to remand to state court. Seinfeld v. Austen, 39 F.3d 761, 763 (7th Cir. 1994). Removal of a state civil suit to federal court is proper where "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). As diversity of citizenship is not alleged, the removal's propriety hinges on whether the district court had federal question jurisdiction. See Seinfeld, 39 F.3d at 763.
Plaintiffs' complaint asserts solely state law claims. Under the well-pleaded complaint doctrine it would thus appear at first blush that the district court lacked subject matter jurisdiction and that the complaint was not removable. See Moran v. Rush Prudential HMO, Inc., 230 F.3d 959, 966 (7th Cir. 2000). Tyson argues, and the district court held, however, that removal was justified under the doctrine of complete preemption, which is a corollary to the well-pleaded complaint rule. Rice v. Panchal, 65 F.3d 637, 640 n.2 (7th Cir. 1995). Complete, or field, preemption exists where "Congress has so completely preempted a particular area that no room remains for any state regulation and the complaint would be 'necessarily federal in character.' " Bastien v. AT&T Wireless Serv., Inc., 205 F.3d 983, 986 (7th Cir. 2000) (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)). We find complete preemption where there is a "congressional intent in the enactment of a federal statute not just to provide a federal defense to a state created cause of action but to grant a defendant the ability to remove the adjudication of the cause of action to a federal court by transform ing the state cause of action into a federal cause of action." 14B Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 3722.1 (3d ed. 1998 & Supp. 2002) (emphasis added); see also Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir. 1996) (reasoning that complete preemption "converts a state law claim into an action arising under federal law") (internal quotation omitted).
In that vein, plaintiffs argue that " 'complete preemption' cannot exist here because there is no private right of action under the PPIA" into which either of their state law causes of action could be transformed. Significantly, Tyson concedes that the PPIA does not create a private right of action. Nevertheless, it argues that a private right of action is not a prerequisite to complete preemption. On this dispositive point, precedent compels us to agree with plaintiffs.
As this circuit interprets the law, the "ability to bring suit under [federal law] is an element of 'complete preemption.' " Vorhees v. Naper Aero Club, Inc., 272 F.3d 398, 404 (7th Cir. 2001) (citing Rice, 65 F.3d at 641). Logically, complete preemption would not be appropriate if a federal remedy did not exist in the alternative. Otherwise, a plaintiff would be forced into federal court with no relief available for "vindicating the same interest." Railway Labor Executives Ass'n v. Pittsburgh & L.E.R.R., 858 F.2d 936, 942 (3d Cir. 1988). "Preemption is what wipes out state law, but the foundation for removal is the creation of federal law to replace state law." Rice, 65 F.3d at 641 (quoting Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1075 (7th Cir. 1992)). Accordingly, "unless the federal law has created a federal remedy--no matter how limited--the federal law, of necessity, will only arise as a defense to a state law action" and will thus not give rise to the federal question jurisdiction underlying complete preemp tion. Id.; see also McQuerry v. American Med. Sys., Inc., 899 F. Supp. 366, 370 (N.D. Ill. 1995) (reasoning that, where there is no federal private right of action, "complaints in such cases do not even arguably raise a federal question and therefore are inappropriate for removal").
Most circuits share our view that the existence of a private right of action under federal law is an antecedent of complete preemption. See Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1184 (9th Cir. 2002); Schmeling v. NORDAM, 97 F.3d 1336, 1342 (10th Cir. 1996); Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 260 (6th Cir. 1996); Hudson Ins. Co. v. American Elec. Corp., 957 F.2d 826, 830 (11th Cir. 1992); Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1164-65 (5th Cir. 1989); Railway Labor Executives Ass'n, 858 F.2d at 942. But cf. Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1152-54 (8th Cir. 1999) (finding complete preemption without discussing whether there was a replacement federal cause of action); id. at 1154-55 (Morris Sheppard Arnold, J., dissenting) (arguing that the defendant's failure to point to a private right of action in the statute should have been fatal to its argument for complete preemption).
Tyson cites two decisions of this court as standing for the opposite proposition. First, Tyson maintains that, in Bastien v. AT&T Wireless Serv., Inc., this court "flatly rejected the assertion that a federal remedy must exist for complete preemption." Second, Tyson quotes Lister v. Stark, 890 F.2d 941 (7th Cir. 1989) for the proposition that "the availability of a federal ...