Things have been weird. What was normal is not now. What has been common recently is not normal. The phrase "the new normal" has been so over-used that hearing it induces a sour look on our face. Somewhere in our brain-like our face, the bloggers have a single, first-person plural brain for stylistic purposes-there is a drive to look for things that are familiar to us. The sun rises in the east. The birds chirp out their vernal tunes. Our dogs care more about barking at interloping canines being walked down the street than defending our vegetable garden from intruding rodents and lagomorphs. Plaintiff lawyers put wacky things in their complaints because they think there is no downside to doing it.
Sometimes there is. In Gremo v. Bayer Corp., No. 1:19-cv-13432-NLH-AMD, 2020 WL 1921952 (D.N.J. Apr. 21, 2020), the plaintiff sued a bunch of companies for alleged injuries suffered from one or more of their gadolinium-based contrast agents used in connection with an one or more MRIs performed on her. (The details on the actual case are sparse in the decision. Her googleable gofundme efforts from years before the case was filed hint that those details could be interesting.) As might be expected, the plaintiff brought her suit in state court in her home state and included at least one non-diverse defendant. Predictably, the defendants preferred federal court and removed. Not surprisingly, the plaintiff moved to remand.
The sole basis for removal was federal question jurisdiction. This can be a tough issue for the defendants-as we have noted, this areas of law can be messy (as would be seen from various of our posts on the subject)-mostly because the federal question has to be apparent from the face of the complaint and plaintiff lawyers write those. As the Gremo court framed the analysis, federal question jurisdiction lies where "a well-pleaded complaint establishes either that federal law creates a cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Id. at *2 (internal citation omitted).
Of course, as we often see when it comes to things like preemption and statute of limitations, the incentive in state court pleadings can be for a plaintiff lawyer to omit the facts that show what really happened. By contrast, at least in federal court and jurisdictions with tighter pleading requirements, the incentive is to offer enough to state claims; although, plaintiffs do tend to get a few chances to do that before any real penalty and they can still try to amend down the road based on discovery. If you put all that together, then there is a path for a plaintiff to stay in state court with an initial complaint that is less than forthcoming about just how much her "right to relief necessarily depends on resolution of a substantial question of federal law."
The plaintiff in Gremo did not follow that path and the court denied the motion to remand, probably setting the stage for inevitable fight over preemption to be decided by a federal court (where similar cases have gone away based on preemption). In paragraph 126 of her complaint-we suspect it had more paragraphs, but that is the highest numbered paragraph cited in the decision-plaintiff asserted:
Upon information and belief, the Defendants have or may have failed to comply with all federal standards and requirements applicable to the sale of GBCAs including, but not limited to, violations of various sections and subsections of the United States Code and the Code of Federal Regulations.
Id. This followed up on earlier allegations that FDA and "the GBCA industry" had not "acknowledg[ed] any untoward health effects from gadolinium retention in non-renal patients," and "to date, the FDA and the GBCA industry have refused to acknowledge that GBCAs can cause" a variety of potentially severe injuries. Id. at *3. This was more than enough to satisfy both parts of federal question analysis.
By alleging that the defendants had violated "various sections and subsections of the United States Code and the Code of Federal Regulations" and had not complied with "all federal standards and requirements applicable to the sale of GBCAs," the plaintiff left no doubt that her claims allegedly arose under federal law. She could not benefit from her complaint's omission of the specific federal laws, regulations, standards, or requirements at issue or the legal theory allowing her to recover for any violation.
Under the well-pleaded complaint rule, Plaintiff's allegation that Defendants' actions taken in concert with a federal agency violate federal law and federal regulations readily establishes that Plaintiff's complaint arises under federal law. To hold otherwise would require the Court to ignore Plaintiff's express averment that Defendants' actions violate federal law.
Id. at *4. This came with a tidy footnote that quoted Buckman on how interaction between FDA and an entity that it regulates was "inherently" a federal issue. Id. at *4 n.4. It is not clear what motivated the plaintiff to include allegations about bad actions by FDA when she could have focused her allegations against the entities she was suing, but she was the "master of her complaint," for good or bad.
Her perhaps unnecessary allegations also satisfied the second potential basis for federal question jurisdiction.
Plaintiff's allegations concerning the collusion between the FDA and the GBCA industry for failing to provide proper warnings of the dangers of GBCAs give rise to Plaintiff's claims against Defendants, which claims plainly depend on the resolution of a substantial question of federal law, even if Plaintiff herself had not expressly stated that such actions violate federal law.
Id. at *5. It did not matter that her complaint also asserted state law claims. "Plaintiff's claims based on state law may supplement, but they do not erase, Plaintiff's allegations regarding Defendants' federal law violations." Id. That sensible approach from the court is as reassuring as it is to see a plaintiff overreaching, like normal.
Article originally published on 30 April 2020
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