Dow finding that, "unlike the negligence action in that case [Merrell Dow], a conspiracy claim is not an independent cause of action. . . . Since in so-called civil conspiracy cases liability is predicated upon the tort committed by the conspirators and not upon the conspiracy, allegations of conspiracy do not change the nature of the cause of action." Id. The court then held that the conspiracy claim arose under federal law because federal law is the only measure of whether where was a conspiracy by the defendants to commit the unlawful act. Id. at 40.
The court finds that the Supreme Court's decision in Merrell Dow governs the instant action. It further finds persuasive the reasoning in a number of cases which have held that conspiracy to violate federal law is a state law claim. Therefore, the court declines to follow the Eighth Circuit's decision in Gaming.
B. MDL 1014
Civil conspiracy is a state law claim. This court does not believe that merely alleging that the conspiracy was to violate a federal law converts a state claim to a federal claim. A violation of the FDCA or the MDAs is not an essential element of Plaintiffs' claims. The court need not construe those laws to determine whether a conspiracy existed; it need only determine whether the defendants conspired to violate the law. The law allegedly violated happens to be a federal law. Assuming arguendo that it is the only measure of whether the conspiracy occurred, this court still does not agree that the conspiracy claim is automatically converted to a federal claim. See Abrams v. Carrier Corp., 434 F.2d 1234, 1253-54 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S. Ct. 1251 (1971) (remanding conspiracy claim because there exists no federal statute which confers independent jurisdiction upon the federal courts for claims of civil conspiracy in the labor relations field, and conspiracy to violate an individual's rights under the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 412, is not sufficient to vest federal court with jurisdiction); Berard v. General Motors Corp., 493 F. Supp. 1035, 1042 (D. Mass. 1980) (adopting the reasoning in Abrams); Marquette Nat'l Bank of Minneapolis v. First Nat'l Bank of Omaha, 422 F. Supp. 1346, 1351 (D. Minn. 1976) ("A cause of action alleging a civil conspiracy is a state law claim whether the statute to be violated is state or federal."); Turner v. First of Omaha Serv. Corp., 401 F. Supp. 439, 443 (S.D. Iowa 1975) ("The basic cause of action . . . remains a matter of state substantive law, however, regardless of the fact that the tort may be called a conspiracy to violate a federal law.") To find federal question jurisdiction in this instance would be contrary to the well-defined boundaries of federal jurisdiction established by the United States Supreme Court. See Caterpillar, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425; Merrell Dow, 478 U.S. 804, 92 L. Ed. 2d 650, 106 S. Ct. 3229; Phillips Petroleum, 415 U.S. at 80.
To find federal question jurisdiction would also be contrary to the intent of Congress. Congress has specifically empowered certain civil plaintiffs with the ability to sue in federal court based on conspiracy. See 15 U.S.C. § 1 (The Sherman Act); and 42 U.S.C. § 1985 (Civil Rights Act). There is no similar language conferring a federal cause of action for conspiracy to violate the FDCA or the MDAs in the statutes. Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 261 (6th Cir. 1996). Based upon Congress's choice not to include such language, and the Supreme Court's interpretation of the statute, the court must find that no such intent exists.
The Gaming case involved Indian lands, which have a long history of federal regulation. The FDCA does not have a similar history. Significant to this court is the fact that the statute before it is the same statute upon which the Supreme Court ruled in Merrell Dow. This court also has before it the same question that was before the Supreme Court in Merrell Dow, namely,
whether the incorporation of a federal standard in a state-law private action, when Congress has intended that there not be a federal private action for violations of that federal standard, makes the action one "arising under the Constitution, laws or treaties of the United States," 28 U.S.C. § 1331.