United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE
Illinois Public Risk Fund has sued more than thirty
organizations and individuals it alleges were involved in
negligent and fraudulent conduct related to the manufacture,
distribution, and prescription of opioids. After it filed
suit in Illinois state court, defendant McKesson
Corporation-a distributor of prescription drugs-removed the
case to federal court. The Fund has moved to remand the case.
outset, McKesson urges the Court to defer consideration of
the remand motion. The parties agree that the Judicial Panel
on Multidistrict Litigation is likely to transfer this case
to ongoing multidistrict litigation in the U.S. District
Court for the Northern District of Ohio within the next
several weeks. McKesson contends that the appropriate course
is to leave resolution of this motion up to the judge
presiding over the MDL so that this and other remand motions
are decided simultaneously.
Court believes that deferring decision on the motion to
remand would risk significant unfairness to the plaintiff.
The judge presiding over the MDL has elected not to rule on
any motions for remand or permit discovery for a substantial
period of time. Thus to defer ruling now could have the
effect of staying the litigation indefinitely. See
Dunaway v. Purdue Pharma L.P., No. 19-cv-00038, 2019 WL
2211670, at *3 (M.D. Tenn. May 22, 2019) ("There is no
guarantee of when that heavily burdened [MDL] court would be
able to address the important jurisdictional issues raised
here."). And nearly a dozen other district courts across
the country in similar cases have roundly rejected arguments
virtually identical to those McKesson makes in opposition to
remand. McKesson was a defendant in many of those cases. The
Court is reticent to reward what may be a deliberate strategy
of filing unmeritorious notices of removal in order to
delay-or altogether avoid-litigating these cases. The Court
will therefore decide the motion to remand.
Court now turns to the merits of the motion. Removal is
appropriate if the Court has original jurisdiction over the
case, in other words if the complaint could have been filed
in federal court because the claims arise under federal law
or because the parties are of diverse citizenship.
See 28 U.S.C. § 1441(a); Home Depot USA,
Inc. v. Jackson, 139 S.Ct. 1743, 1748 (2019). Because
the parties in this case are non-diverse, McKesson must show
that this case arises under federal law within the meaning of
28 U.S.C. § 1331. Most cases that arise under federal
law involve a federal cause of action, but federal courts may
also hear a "special and small category" of cases
where federal issues are embedded in state-law claims.
Gunn v. Minton, 568 U.S. 251, 257-58 (2013).
the complaint alleges only state-law claims, the Court has
original jurisdiction only if the case satisfies the
requirements for jurisdiction over federal questions embedded
in state-law claims. "[F]ederal jurisdiction over a
state law claim will lie if a federal issue is: (1)
necessarily raised, (2) actually disputed, (3) substantial,
and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by
Congress." Id. at 258 (citing Grable &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308 (2005)).
avoid remand, this case must meet all four elements of the
Grable test. It does not do so. First, the claims in
the complaint do not necessarily raise a federal issue.
McKesson contends that some of the plaintiff's claims-it
does not specify which ones-require it to show that the
defendants violated a duty under the federal Controlled
Substances Act. It is true that the plaintiff cites the Act
as a basis for the defendants' alleged duty to
"investigate, report, and stop suspicious orders of
prescription opioids." Compl., dkt. no. 101, ¶ 568.
But the plaintiff also cites independent state-law bases for
this duty, including provisions of the Illinois Controlled
Substances Act, 720 Ill. Comp. Stat. 570/303, the Illinois
Wholesale Drug Distribution Licensing Act, 225 Ill. Comp.
Stat. 120/55, and the Illinois Administrative Code, Ill.
Admin. Code tit. 68, § 1510.50. As many other courts
have found in similar cases concerning the manufacture and
distribution of opioids, these alleged state-law duties mean
that the construction of the Controlled Substances Act is not
a necessary part of the plaintiff's claims. See,
e.g., Dunaway, 2019 WL 2211670, at *6; City
of Worcester v. Purdue Pharma L.P., No. 18-11958-TSH,
2018 U.S. Dist. LEXIS 215824, at *8-9 (D. Mass. Nov. 21,
2018); City of Reno v. Purdue Pharma, L.P., No.
18-cv-00454-MMD-WGC, 2018 WL 5730158, at *2 (D. Nev. Nov. 2,
2018); Uintah County v. Purdue Pharma, L.P.,
18-cv-00585-RJS, 2018 WL 3747847, at *6 (D. Utah Aug. 7,
2018); New Mexico ex rel. Balderas v. Purdue Pharma
L.P., 323 F.Supp.3d 1242, 1251-52 (D.N.M. 2018);
Delaware ex rel. Denn v. Purdue Pharma, L.P., No.
18-383-RGA, 2018 WL 1942363 (D. Del. Apr. 25, 2018); West
Virginia ex rel. Morrisey v. McKesson Corp., No.
16-1772, 2017 WL 357307, at *7-8 (S.D. W.Va. Jan. 24, 2017).
argues that the putative state-law bases for the
defendant's duty necessarily raise federal questions
because the Illinois Controlled Substances Act and associated
regulations incorporate federal law. McKesson points to
Illinois Administrative Code section 1510.50(i), which
provides that "[w]holesale drug distributors shall
operate in compliance with applicable federal, state and
local laws and regulations." But this reference to
federal law does not suggest that a federal issue will
inevitably arise; to the contrary, by referring to
"state and local laws and regulations," section
1510.50(i) supports the plaintiff's contention that
Illinois law imposes duties independent of the
defendants' obligations to comply with federal law. And
insofar as McKesson disputes that Illinois law in fact
establishes a relevant duty of care, its argument improperly
seeks to litigate the merits of the plaintiff's claims.
Cf. Shapiro v. McManus, 136 S.Ct. 450, 455-56 (2015)
(holding that, unless a cause of action is "wholly
insubstantial and frivolous," the apparent weakness of a
claim "calls for a judgment on the merits and not a
dismissal for want of jurisdiction"); see also
Uintah County, 2018 WL 3747847, at *6 ("At this
stage, involving subject matter jurisdiction determinations,
Plaintiffs are the masters of their claims-whether eventually
successful on the merits or not."). Because McKesson has
not argued that the claimed duty of care based on Illinois
law is so lacking in merit as to be wholly insubstantial or
frivolous, whatever deficiencies may exist in the
plaintiff's claims do not constitute a basis on which to
deny the motion to remand.
has also failed to show that this case satisfies the third
element of the Grable test: that the federal issue
is substantial. Notably, the parties agree that there is no
private federal cause of action under the Controlled
Substances Act. As the Supreme Court explained in Merrell
Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804
(1986), the fact that Congress chose not to create a federal
cause of action under the relevant statute is evidence that
the federal interest is insufficiently substantial.
Id. at 814. McKesson argues that the federal
government has a strong interest in the uniform
interpretation and application of its statutes and
regulations governing controlled substances. But beyond
general appeals to the importance of uniformity, it has not
explained how referring to alleged violations of duties
imposed by federal law would in any way interfere with the
government's ability to regulate in this arena. Indeed,
the Controlled Substances Act expressly disclaims an intent
to occupy the legislative field and permits states to enact
their own regulatory schemes-as Illinois and many other
states have done-as long as they are not inconsistent with
the Act. See 21 U.S.C. § 903.
McKesson has not shown that the Court can exercise
jurisdiction over this case without upsetting the balance of
federal and state authority over controlled substances. The
Supreme Court has expressed wariness about the exercise of
federal jurisdiction over any and all state-law negligence
claims whose resolutions depend in some measure on violations
of duties imposed by federal law. See Grable, 545
U.S. at 319 ("A general rule of exercising federal
jurisdiction over state claims resting of federal mislabeling
and other statutory violations would thus have heralded a
potentially enormous shift of traditionally state claims into
federal courts."). And the fact that the Controlled
Substances Act lacks a federal cause of action supports the
conclusion that Congress deliberately sought to leave such
claims in state court. See Id. ("In this
situation, no welcome mat meant keep out."); Merrell
Dow, 478 U.S. at 812 (holding that it would
"undermine congressional intent" to assert
jurisdiction based on a federal statute for which Congress
had not established a federal remedy); Balderas, 323
F.Supp.3d at 1252-53 ("[A]llowing jurisdiction when
Congress had not intended a private right of action would
have seriously disrupted the balance of labor between state
and federal courts." (quoting Nicodemus v. Union
Pac. Corp., 440 F.3d 1227, 1233 n.5 (10th Cir. 2006)).
The risk that exercising jurisdiction could upset the
division of authority between federal and state courts
requires remand under the fourth element of the
foregoing reasons, the Court grants the plaintiff's
motion to remand . The Clerk is directed to immediately
remand this case ...