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In re Yasmin and Yaz Marketing

January 8, 2010

IN RE YASMIN AND YAZ (DROSPIRENONE) MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
THIS DOCUMENT RELATES TO: KERRY SIMS, PLAINTIFF,
v.
BAYER CORPORATION, BAYER HEALTHCARE PHARMACEUTICALS INC., BAYER HEALTHCARE, LLC, WALGREEN CO. D/B/A WALGREENS DEFENDANTS.



The opinion of the court was delivered by: David Herndon Chief Judge United States District for the Southern District

MDL No. 2100

ORDER

Upon consideration of Plaintiff's Motion to Withdraw her Motion to Remand, (3:09-cv-10012, Doc. 47), the Court hereby ORDERS as follows:

Plaintiff's Motion is DENIED at this time. The question of diversity jurisdiction is not yet settled. The Plaintiff was this date granted leave to file an amended complaint which altered her theory against Defendant Walgreen Co. Remaining are theories of Breach of Implied Warranty and Illinois Consumer Fraud Act violations.It is alleged that said Defendant is an Illinois citizen, a non- diverse party. If Walgreen Co. is not fraudulently joined, diversity does not exist and this Court does not have subject matter jurisdiction to hear this case.The parties cannot voluntarily submit to the jurisdiction of the Court, where none exists. Appleton Elec. Co. v. Graves Truck Line, Inc. 635 F.2d 603, 608 (7th Cir. 1980) ("It is fundamental that the federal courts are courts of limited jurisdiction, and that a lack of jurisdiction cannot be waived by the parties."). Therefore, even though the Court has the authority to remand this case sua sponte, see McCready v. White, 417 F.3d 700, 702 (7th Cir. 2005) ("Ensuring the existence of subject matter jurisdiction is the court's first duty in every lawsuit."), it would seem the prudent course, to leave the Plaintiff's Motion to Remandan active motion at this time.

SO ORDERED:

20100108

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