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IN RE ORTHOPEDIC BONE SCREW PRODS. LIAB. LITIG.

August 6, 1996

IN RE: ORTHOPEDIC BONE SCREW PRODUCTS LIABILITY LITIGATION


The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 AUGUST 6, 1996

 Presently before the court is AcroMed Corporation's ("AcroMed") Motion for Partial Reconsideration of Pretrial Orders 409 and 438 issued by this court in MDL 1014 (Docket # 3859). *fn1" AcroMed has requested the court to reconsider its ruling in both Orders and to deny the motions to remand cases in which Plaintiffs have alleged a conspiracy claim predicated on alleged violations of the Federal Food, Drug & Cosmetic Act ("FDCA") and the Medical Device Amendments ("MDAs") thereto. AcroMed offers in support of its motion a recent decision from the United States Court of Appeals for the Eighth Circuit, Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 1996 U.S. App. LEXIS 15326 (8th Cir. June 27, 1996), in which the court held that allegations of a civil conspiracy to violate the Indian Civil Rights Act, 25 U.S.C. §§ 1302 et seq. ("ICRA") provided federal question jurisdiction.

 Upon consideration of AcroMed's Motion and the Lestelle Plaintiffs' response thereto, and a review of the Gaming decision and other relevant precedent, the court will deny AcroMed's motion.

 I. DISCUSSION

 It is a well-rooted principle of federal law that only actions that "originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar v. Williams, 482 U.S. 386, 392, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987). Because there was no diversity of citizenship in the cases remanded by Pretrial Orders 409 and 438, the court would have to find that Plaintiffs' claims "arise under the Constitution, laws, or treaties of the United States," in order to exercise federal question jurisdiction. 28 U.S.C. § 1331; Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 807, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986).

 The presence of a federal issue in a state cause of action, without more, does not "automatically confer federal question jurisdiction." Merrell Dow, 478 U.S. at 813. For a claim to arise under the Constitution, laws or treaties of the United States, a right or immunity created by the Constitution or laws of the United States must be an essential element of the plaintiff's claim. Phillips Petroleum Co. v Texaco, Inc., 415 U.S. 125, 127, 39 L. Ed. 2d 209, 94 S. Ct. 1002 (1974) (citation omitted). Furthermore, the cause of action must be created by the federal law or the vindication of a right under state law must turn upon the construction of that federal law. Merrell Dow, 478 U.S. at 808. It would "undermine congressional intent to conclude that the federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of . . . federal statute[s] solely because the violation of the federal statute is said to be a 'rebuttable presumption' or a 'proximate cause' under state law, rather than a federal action under federal law." Id. at 812.

 AcroMed argues that, in light of the Gaming case, the court should reconsider its decision to remand and find that it has federal question jurisdiction over all cases which allege a conspiracy to violate the MDAs. The Lestelle Plaintiffs oppose the motion and argue first that the order to remand cannot be reconsidered by the court *fn2" and, second, that reference to a federal law does not create a federal cause of action. For the reason set forth below, the court will deny AcroMed's motion.

 A. THE GAMING CASE

 In Gaming, members of a Native American tribe, the Ho-Chunk Nation, claimed that the law firm of Dorsey & Whitney ("Dorsey") had violated state and federal law while representing the tribe during a tribal casino management licensing process. Gaming, 1996 U.S. LEXIS 15326 at *1. The suit was filed in state court and alleged, in addition to a number of common law violations, that Dorsey had violated the ICRA. Id. at *4.

 Dorsey removed the case to federal court, alleging that federal question jurisdiction existed because many of the complaint's allegations related to gaming license proceedings which are governed by the Indian Gaming Regulation Act, 25 U.S.C. §§ 2701 et seq. ("IGRA"), and one count alleged violation of the ICRA, also a federal statute. Dorsey also filed a motion to dismiss arguing that the cause of action was completely preempted by the ICRA. *fn3" On the same day, the plaintiffs filed a motion to remand. The plaintiffs amended the complaint and added counts alleging conspiracy to violate the ICRA and violations of due process under the fifth and fourteenth amendments to the United States Constitution. Id. at *6. The federal district court found that the state law was not completely preempted by the IGRA and that the conspiracy claim arose under state law. Gaming, 1996 U.S. LEXIS at *7. The district court then dismissed, inter alia, the due process counts and remanded the remaining counts to state court after concluding that no federal questions remained. Dorsey appealed the decision, arguing that federal questions remained and that the IGRA completely preempted the field of gaming regulation. Id.

 Based on an analysis of the legislative history and the treatment of other regulations relating to Indian lands, the Eight Circuit Court of Appeals found that the IGRA completely preempted the state laws regulating gaming on Indian land. Gaming, 1996 U.S. LEXIS 15326 at ...


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