The opinion of the court was delivered by: BRODY
In March 1995, plaintiff filed suit in state court to recover for the death of her husband, who died while participating in Temple University Hospital's investigational study involving the experimental drug Carvedilol. Plaintiff alleges that defendants improperly monitored decedent's health while he was participating in the study.
Defendants removed the case to federal court, alleging federal question jurisdiction pursuant to the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301, et seq. Before me is plaintiff's motion to remand alleging improper removal due to the lack of federal subject matter jurisdiction. I must grant plaintiff's motion to remand if this case was improperly removed to federal court. 28 U.S.C. § 1447(c).
Removal based on federal question jurisdiction is proper in only three circumstances: (i) when it is clear from the face of the well-pleaded complaint that a claim arises under federal law; (ii) when some substantial, disputed question of federal law is a necessary element of a claim; or (iii) when the area of law has been completely preempted by Congress. The case before me does not fit within any of these categories and therefore must be remanded.
I. The Well-Pleaded Complaint
The vast majority of claims which come within federal question jurisdiction are those in which it is clear from the face of the well-pleaded complaint that federal law creates the cause of action. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986); Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8-9, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983). As a rule, a plaintiff may immunize herself against federal jurisdiction by drafting a complaint which fails to clearly state a federal cause of action. See Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 309 (3d Cir. 1994), cert. denied, 131 L. Ed. 2d 555, 115 S. Ct. 1691 (1995).
Plaintiff argues that the complaint in this case was carefully drafted to avoid raising a federal question. (Pl.'s Mot. Remand P 24.) In response, defendants argue that federal jurisdiction exists because the face of the complaint implies a federal cause of action.
(Temple Defs.' Mem. Opp'n to Remand at 6; 3/7/96 Tr. at 25.) In other words, defendants argue that plaintiff's complaint is not "well-pleaded" and that in reality plaintiff is pursuing a federal cause of action.
II. No Clearly Pleaded Federal Question
When a complaint fails to clearly assert a federal cause of action, removal is nonetheless appropriate when "it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." Franchise Tax Bd. of the State of Cal. v. Construction Laborers Vacation Trust for S. Cal., 461 U.S. 1, 13 (1983). In other words, when a federal question arises only as an element of a purported state law cause of action, the case may still be removed to federal court based on the necessary presence of a "substantial, disputed question of federal law."
The Third Circuit has made clear that no "substantial, disputed question of federal law" may exist when the federal law in question may not be enforced in a private cause of action:
[A] private federal remedy for violating a federal statute is a prerequisite for finding federal question jurisdiction [over a state law claim].
Smith v. Industrial Valley Title Ins. Co., 957 F.2d 90, 93 (3d Cir. 1992) (following Merrell Dow Pharmaceuticals Inc., 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229), cert. denied sub nom. Commonwealth Land Title Ins. Co. v. Burns, 505 U.S. 1221, 120 L. Ed. 2d 903, 112 S. Ct. 3034 (1992). Thus, if Congress does not provide for a private cause of action under a federal statute, plaintiff's assertion of that federal statute as ...