United States District Court, S.D. Illinois
ORDER REQUESTING BRIEFING ON SUBJECT MATTER
J. ROSENSTENGEL United States District Judge
matter is before the Court, sua sponte, for purposes
of determining whether the Court has subject matter
jurisdiction over certain cases in the Depakote litigation.
The vast majority of the Depakote litigation cases were filed
directly in this District alleging diverse citizenship as the
sole basis for this Court's subject matter jurisdiction.
In each of these cases, the Complaint makes no reference to
the original mass action or the provisions of the Class
Action Fairness Act (“CAFA”). And a small
number of the cases filed originally in this Court facially
fail to allege any basis for federal subject matter
jurisdiction. See e.g., G.M., et al., v. Abbott
Laboratories, Inc., No. 13-cv-890 (S.D. Ill. 2014)
(alleging Illinois as the state of residence for both
Plaintiff Sarah J. Dubeau and Defendant); Bauman et al v.
Abbott Laboratories Inc. et al, No. 15-cv-472 (S.D. Ill.
2015) (alleging Illinois as the state of residence for both
Plaintiffs Lorri McDanel and A.M., and Defendants); P.A.
et al., v. Abbott Laboratories, Inc., et al., No.
15-cv-102 (S.D. Ill. 2015) (alleging Illinois as the state of
residence for both Plaintiffs Pamela Reyes and J.A., and
Defendants); Sanders et al., v. Abbott Laboratories,
Inc., et al., No.. 16-cv-21 (S.D. Ill. 2016) (alleging
Illinois as the state of residence for both Plaintiff John
Marzigliano and Defendants).
well settled that lack of subject matter jurisdiction cannot
be waived. O'Brien v. R.J. O'Brien &
Associates, Inc., 998 F.2d 1394, 1399 (7th Cir. 1993);
see Belleville Catering Co. v. Champaign Mkt. Place,
L.L.C., 350 F.3d 691, 692 (7th Cir. 2003) (where the
Seventh Circuit dismissed a case that had proceeded, on
alleged diversity jurisdiction, to a jury verdict before
discovering diversity was incomplete).
as the parties invoking federal jurisdiction, bear the burden
of establishing that jurisdiction is proper by a
preponderance of the evidence. Travelers Prop. Cas. v.
Good, 689 F.3d 714, 722 (7th Cir. 2012); Oshana v.
Coca-Cola, 472 F.3d 506, 511 (7th Cir. 2006) (citing
Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543
(7th Cir. 2006)). While each of the referenced Depakote
litigation cases contain Plaintiffs that are citizens of
states other than Illinois, “[t]he rule is that if
there are residents of the same state on both sides of a
lawsuit, the suit cannot be maintained under the diversity
jurisdiction even if there is also a nonresident
party.” Am. Nat. Bank & Trust Co. of Chicago v.
Bailey, 750 F.2d 577, 582 (7th Cir. 1984).
clear that traditional diversity jurisdiction does not exist
in some of the Depakote cases pending in this District; what
is not clear to the Court is the basis for subject matter
jurisdiction. Accordingly, the Court directs the parties
to address the following two questions: (1) whether the
jurisdictional provisions of CAFA apply to the cases
referenced above; and if not, (2) whether there is an
independent basis for federal subject matter jurisdiction.
shall file a brief addressing subject matter jurisdiction of
these cases on or before October 7, 2016.
Defendants may file a response on or before October
21, 2016, and Plaintiffs may file a reply on or
before October 28, 2016.
 Only seven of the 133 Depakote
litigation cases were consolidated and removed to this Court
under the provisions of CAFA. See In re Abbott Labs.,
Inc., 698 F.3d 568 (7th Cir. 2012).
 The above is not an exclusive list of
all cases that fail to facially allege diversity
The Court notes that in all of the
referenced cases Defendants did not file a motion to dismiss
for lack of subject matter jurisdiction but instead filed an
Answer simply stating “…the Complaint contains a
legal conclusion [concerning jurisdiction] to which no
response is required. To the extent a response is necessary,
Defendants admit that they are residents of the ...