all of Hughes’ federal counts, the issue now before us is whether we should continuc to assert
supplemental jurisdiction over the state law matters. Although district courts have considerable
discretion in this context, the general presumption in the Seventh Circuit is that a court should
dismiss without prejudice supplemental state law claims once all federal claims have been
eliminated prior to trial. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should
be dismissed as well.”). There are, however, several factors that a court should consider before
taking such a step, including “considerations of judicial economy, convenience and fairness to
litigants” as well as the novelty or complexity of the issues presented by the state law claims. United
Mine Workers, 383 U.S. at 726.

Pursuant to 28 U.S.C. § 1367(c), a federal court may decline supplemental jurisdiction over a
claim that “raises a novel or complex issue of state law.” See also Bilow v. Much Shelist Freed
Denenberg Ament & Rubenstein, P.C.,277 F.3d 882, 896 (7th Cir. 2001) (upholding a district
court’s decision to dismiss state law claims where the claims were “complex” and presented
“undecided legal issues, best resolved by the IIlinois state courts”) (quoting district court); see also
United Mine Workers, 383 U.S. at 726 (“[n]Jeedless decisions of state law should be avoided both as
a matter of comity and to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law.”). We must therefore consider whether Hughes’ remaining negligence
claims require a straightforward application of Illinois law or whether they present issues that have
not been directly ruled upon by Illinois courts.

To state a claim for negligence under Illinois law, a plaintiff must establish “the existence of

a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting


federal government and commonly used by other employers. Hughes also claims that the parties
owed him a duty to: 1) warn him that eating certain foods could produce a false positive result; and
2) conduct further, more exacting tests that would have revealed whether his positive test was
actually the result of illicit opiates.
ANALYSIS

Subject matter jurisdiction was originally premised on Hughes’ federal claims, including his
allegations that the City had violated his Fourth Amendment right to be free from search and seizure
(Count 1), his Fourteenth Amendment right to due process under the law (Count If), and his
Fourteenth Amendment right to equal protection under the law (Count I11)2 Hughes’ complaint also
raised two Illinois state law claims against the defendants, including negligence and tortious
interference with an employment contract. Jurisdiction over the state law claims was premised on
28 U.S.C. § 1367, which allows a federal court to assert supplemental jurisdiction over state law
claims “that are so related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States Constitution.”

On July 2, 2003, we dismissed all three of Hughes’ federal causes of action as well as his
state law tortious interference claim against Dr. Russell. However, we allowed Hughes to proceed

with his common law negligence claims against the City, Dr. Russell, and Quest. Having dismissed

7In his complaint, Hughes also alleges that diversity could be a basis for federal jurisdiction. See
28 U.S.C. § 1332. We disagree. It is black letter law that, in order for jurisdiction to be founded upon
diversity, no plaintiff may be a citizen of the same state as any of the defendants. See Indiana Gas Co.,
Inc. v. Home Ins. Co., 141 F.3d 314, 315-16 (7th Cir. 1998) (citing Strawbridge v. Curtiss, 7 U.S. 267
(1806)). The plaintiff in this case is a citizen of Illinois and two of the three defendants are also Illinois
citizens. Diversity of citizenship therefore does not confer federal jurisdiction in this case.

* In addition, Hughes brought two counts that it termed “deliberate indifference.” As we
explained in our opinion of July 2, 2003, deliberate indifference is not a cause of action but a heightened
standard for determining whether state actors are liable for violating a plaintiff's constitutional rights.

3


from the breach.” DiBenedetto v. Flora Transp., 605 N.E.2d 571, 573 (Ill. 1992). In this case, the
central question is whether each of the individual defendants owed Hughes a duty of care to: 1)
follow scientifically accepted standards in setting opiate cut off levels; 2) warn Hughes about the
possibility that certain foods could result in a positive test; or 3) conduct more sophisticated tests to
confirm the presence of illicit drugs in Hughes’ sample. None of these questions have been directly
ruled upon by any Illinois court.

The most closely analogous case is Stinson v. Physicians Immediate Care, Ltd., in which an
Illinois Appellate Court held that a testing facility owed a duty of care to perform drug tests ina
reasonably competent manner. 646 N.E.2d 930 (Ill. App. Ct. 1995). That case dealt with a situation
in which the laboratory had botched the technical analysis of the sample by failing to use “routinely
followed precautionary procedures.” /d. at 931. Thus, had the testing facility in this case (Quest)
mixed up several samples or used unsterile equipment to perform the test, Illinois law indicates that
Hughes could be successful in his negligence suit, at least with respect to Quest. However, Hughes
does not allege negligence in the actual processing of his sample. Rather, he alleges negligence in
the way the sample results (which he admits were technically accurate) were interpreted, in the
amount of information given to him before the test, and in the failure to conduct a second type of
test. Nor does Hughes allege negligence against the testing facility alone (as was the case in
Stinson); he also argues that the City and Dr. Russell owed him a duty of care in interpreting his test
results. In essence, Hughes is requesting that this court extend the duty conferred by the Illinois
Appellate Court in Stinson to fit the facts of his case.

Ulinois courts have explained that, “[iJn considering whether a duty exists in a particular
case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude

of the burden of guarding against it and the consequences of placing that burden on the defendant.”


Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge Marvin Aspen Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 7267 DATE 2/27/2004
CASE David Hughes vs. City of Chicago, et al
TITLE

of the motion being presented. ]

MOTION:

[In the following box (a) indicate the patty Hiling the motion, ¢-g., plaintif¥, defendant, 31d party plaintift, and (b) state brieNy the nature

DOCKET ENTRY:

() Oo Filed motion of [ use listing in “Motion” box above. }

(2) a Brief in support of motion due

QB) a Answer brief to motion due___. Reply to answer brief due

(4) Oo Ruling/Hearing on ___ set for at

6 Oo Status hearing[held/continued to] [set for/re-sct for]on set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on set for at
(7) a Trial[set for/re-setfor]on at.

~) «6 [Bencly/Jury trial} [Hearing] held/continued to at

(9) Qo This case is dismissed {with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) Local Rule 41.1 C)FRCP41(a)(1) Gi FRCP41(a)(2).

The status hearing and for filing of the joint pretrial order set for 7/15/04 is stricken.

(il) @ {For further detail see order attached to the original minute order.]

(10) | [Other docket entry] Enter Memorandum Opinion and Order: We dismiss the remaining claims in
Hughes’ complaint without prejudice. Because we decide now that we have no subject matter jurisdiction
over the case, we withdraw our referral order and dismiss as moot both Defendant’s motion to strike (57-
1) and defendant’s motion for summary judgment (25-1). Plaintiffs motion for decision (65-1) is moot

No notices required, advised in open court.

No notices required. ser of

Document
Number

oY | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices

JY { Mail Ao 450 form.

Copy to judge/magistrate judge.
2z7in008

‘date mailed notice
courtroom

Gl deputy’s
initials

Date/time received in
central Clerk's Oftice snag deputy nia



Gouge v. Central Illinois Pub. Serv. Co., 582 N.E.2d 108, 112 (Ll. 1991) (citations omitted). The
present case would require us to perform this balancing act with respect to each of the three allegedly
negligent actions as performed by each of the three named defendants, attempting to predict the
outcome that the Illinois courts would reach. All of those inquiries would be conducted with very
little guidance from Illinois courts. Without such specific guidance, we believe that it would be
imprudent to assert supplemental jurisdiction over Hughes’ state law claims, the only remaining
claims in this case.
CONCLUSION
For the foregoing reasons, we dismiss the remaining claims in Hughes’ complaint without

prejudice. It is so ordered.

Marvin E. Aspen
United States District Judge

Dated: ad f if a


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DAVID HUGHES,
Plaintiff,
v.

CITY OF CHICAGO, an Illinois municipal
corporation; QUEST DIAGNOSTICS, INC.,, a
New Jersey corporation; and DR, HUGH
RUSSELL, in his individual capacity and official
capacity as Medical Review Officer of the Chicago
Fire Department,

Case No. 02 C 7267

Defendants.

ee SS SS SS SS SS YS SY

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff David Hughes’ complaint against Defendants City of Chicago (“City”), Quest
Diagnostics, Inc. (“Quest”), and Dr. Hugh Russell raises various claims relating to a positive drug
test that ultimately led to Hughes’ termination from the Chicago Fire Department. For the reasons
set forth below, we dismiss the case in its entirety.’

BACKGROUND

In 2001, the Chicago Fire Department hired Plaintiff David Hughes as a candidate

paramedic. Hughes’ employment contract required him to submit to random drug testing and

provided that he could be terminated if any of his drug tests yielded a positive result.

‘Quest brought a motion for summary judgment on May 22, 2003. On November 17, 2003,
Quest also filed a Motion to Strike certain documents submitted by Hughes in his response to the
summary judgment motion (Hughes had filed his response on November 7, 2003 after receiving several

extensions from this Court). We originally referred the Motion to Strike to Magistrate Judge Michael T.

Mason. Because we decide now that we have no subject matter jurisdiction over the case, we withdraw

our referral order and dismiss as moot both the Motion to Strike and the Motion for Summary Judgment.


Defendant Quest Diagnostics is a corporation that contracts with the Chicago Fire
Department to perform laboratory analysis of drug test samples submitted by fire department
employees. In September 2001, Hughes provided a urine sample which was submitted to Quest for
testing. Quest conducted two tests on the sample, both of which reflected that Hughes’ morphine
opiate level was 481 ng/ml, slightly above the 300 ng/ml cut off level set by the Chicago Fire
Department. Defendant Dr. Russell, the Medical Review Officer for the Chicago Fire Department,
reviewed and confirmed the results of Quest’s test report. As a result of the positive tests, Hughes
was fired from his candidate paramedic position on October 9, 2001. Hughes responded to his
termination with the present action.

The central focus of Hughes’ eleven count complaint is the cut off level that the defendants
used in testing for the presence of opiates in Hughes’ sample. The parties agree that the actual
testing of the sample was done with scientific precision; there are no questions surrounding chain of
custody, the types of procedures used to perform the tests, or the accuracy of the 481 ng/ml result
obtained. Rather, Hughes argues that the defendants’ use of the 300 ng/ml cut off level for opiates
was unacceptably low and contrary to scientific standards.

It is widely accepted that drug tests can yield false positive results for low levels of opiates
and codeine if the person being tested has recently ingested poppy seeds or some (perfectly legal)
prescription drugs. See David W. Lockhard, Protecting Medical Laboratories From Tort Liability
for Drug Testing, 17 J. Legal Med. 427 (1996). For that reason, the federal government requires its
employees to be tested using a 2,000 ng/ml cut off level. 49 C.F.R. § 40.87, The question presented
in this case is whether the City of Chicago, the doctor who reviewed the test results, and the
corporation which performed the testing can be held liable for their decision to treat Hughes’ 481

ng/ml result as positive for opiates rather than adhering to the much higher cut off levels set by the