question and diversity jurisdiction. Looking to the original complaint, the court concludes that,
(1) the original complaint did not support federal question jurisdiction, and (2) given the lack of
an ad damnum clause in the original complaint, defendants’ failure to comply with Local Rule
81.2 of the Northern District of Illinois merits a remand of the instant case to state court.

As a starting point, the court notes that the burden of establishing federal jurisdiction falls
on the party seeking removal. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7" Cir. 1993),

citing Wilson v. Republic Iron & Steel Co, 257 U.S. 92, 42 S.Ct. 35 (1921). Further, any doubt

regarding jurisdiction should be resolved in favor of state courts. Allied-Signal, Inc., 985 F.2d at

911, citing Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976).

28 U.S.C. § 1331, which governs federal question jurisdiction, provides that the district
courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States, Defendants, in support of their assertion of federal question
jurisdiction, direct the court’s attention to numerous references throughout the original complaint
to federal statutes and regulations governing Medicare, Medicaid and the Food and Drug
Administration (FDA), as well as allegations that defendants acted in contravention of those
federal laws. Notwithstanding those references, however, plaintiff deliberately fashioned her
original one-count complaint to seek relief exclusively under the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505/1 et seq.’ The question is thus whether

plaintiff's myriad references to federal law create federal question jurisdiction in the instant case.

'For example, in paragraph 86 of her complaint, plaintiff references 42 U.S.C. § 1320a-7
and 42 C.F.R. § 1001, which prohibit kickbacks to physicians and medical care providers under
Medicare and Medicaid, but specifically notes that “[n]Jo federal claim for relief is being made
under [those] or other federal statutes.”



The record in the instant case indicates that defendants have not complied with either of
the alternatives provided in L.R. 81.2(2). Because the original complaint contains only
generalized allegations regarding the nature of plaintiff's injuries and does not specify the
damages sought by the named plaintiff or any members of the putative class, defendants’ failure
to obtain an admission or interrogatory response from plaintiff pursuant to L.R. 81.2(2) compels
remand to state court. See Allied-Signal., Inc., 985 F.2d at 911 (“{AJny doubt regarding

jurisdiction should be resolved in favor of the states.”).
CONCLUSION

For the reasons stated herein, plaintiffs motion to remand the instant case to the Circuit

Court of Cook County, Illinois, is granted.

ENTER: August 12. 2003

“a, (ia

Robert W. Gettleman
United States District Judge



complaint alleging a violation of a federal statute as an element of a state cause of action, when
Congress has determined that there should be no private, federal cause of action for the violation,
does not state a claim ‘arising under the Constitution, laws, or treaties of the United States.’” Id.

at 817 (citations omitted).

In Seinfeld v. Austen, 39 F.3d 761, 764 (7" Cir. 1987), the Seventh Circuit concluded

that, under Merrell Dow, “if federal law does not provide a private right of action, then a state

law action based on its violation perforce does not raise a ‘substantial federal question.’”
(Internal quotations and citations omitted.) Defendants do not dispute that the FDCA does not

contain private enforcement provisions that would encompass plaintiff’s claim. See Merrell

Dow. 478 U.S. at 811; In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781,

788 (3d Cir. 1999) ("It is well settled ... that the FDCA creates no private right of action"); PDK

Labs, Inc. v. Friedlander, 103 F.3d 1105, 1113 (2d Cir.1997); Mylan Laboratories, Inc. v.

Matkari, 7 F.3d 1130, 1139 (4th Cir. 1993). Following Merrell Dow, therefore, the court

concludes that plaintiff's state law claim relating to defendants’ alleged marketing of the drug

Neurontin for “off-label” uses does not give rise to federal question jurisdiction.”

Defendants’ attempt to demonstrate that the court has diversity jurisdiction in the instant
case is more persuasive, but flawed. 28 U.S.C. § 1332(a) provides that the district courts shall

have original jurisdiction of all civil actions between diverse parties in which the amount in

>To the extent that D’Alessio v. New York Stock Exchange, Inc., 258 F.3d 93 (2d Cir.
2001), suggests a contrary result, this court respectfully disagrees. See, .g., Dawson ex rel.
Thompson v. Ciba-Geigy Corp., 145 F. Supp. 2d 565, 570, fn. 9 (D.N.J. 2001) (“[I]f Plaintiffs
had claimed a violation of the FDCA as an element of a state law claim, removal would not be
proper under [Merrell Dow].”) (Citations omitted.)



“The presence or absence of federal-question jurisdiction is governed by the ‘well-
pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc.
v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429 (1987). Accordingly, the plaintiff is the
master of her own pleading and can avoid federal jurisdiction by exclusive reliance on state law.

Id.

In Beneficial Nat’ Bank v. Anderson, _U.S.___, 123 S.Ct. 2058, 2063 (2003), the
Supreme Court stated that “a state claim may be removed to federal court in only two
circumstances - when Congress explicitly so provides... or when a federal statute wholly
displaces the state-law cause of action through complete preemption.” Rather than arguing that
there is either an explicit Congressional directive to remove plaintiff's state law claim or
complete preemption in the instant case, defendants try to distinguish Anderson by noting that
the complaint in Anderson did not refer to federal law. Defendants’ argument is unavailing,

however, in light of Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 106 S.Ct.

3229 (1986).

In Merrell Dow, the plaintiffs alleged that defendants’ failure to disclose risks associated
with a drug manufactured by the defendants constituted “misbranding” under the Food, Drug and
Cosmetic Act (FDCA), 21 U.S.C. §§ 301 et seq., that created a rebuttable presumption of
negligence under state law. Id. at 805-806. In other words, plaintiffs’ complaint pled the
violation of a federal statute as an element of a state law cause of action. Id. at 813.
Notwithstanding the unambiguous presence of a federal issue in that case, the Merrell Dow court
concluded that federal question jurisdiction was not present. According to the court, “[A]

5



Local Rule 81.2 of the Northern District of Illinois (“L.R. 81.2") prescribes the
“procedure to be followed in cases where the complaint filed in state court does not, on its face,
indicate that the amount in controversy exceeds the jurisdictional amount specified by 28 U.S.C.

§ 1332(a).” According to L.R. 81.2:

Where one or more defendants seek to remove an action from an Illinois state court based
upon diversity of citizenship, and where the complaint does not contain an express ad
damnum, as to at least one claim asserted by at least one plaintiff, in an amount exceeding
the jurisdictional amount in controversy... the notice of removal shall include in addition
to any other matters required by law:

(1) a statement by each of the defendants previously served in the state court
action that it is his, her or its good faith belief that the amount in controversy
exceeds the jurisdictional amount; and

(2) with respect to at least one plaintiff in the Illinois action, either—

(A) a response by such plaintiff to an interrogatory or
interrogatories (see IlJ.S.Ct. Rule 213) as to the amount in
controversy, either (i) stating that the damages actually sought by
that plaintiff exceed the jurisdictional amounts or (ii) declining to
agree that the damage award to that plaintiff will in no event
exceed the jurisdictional amount; or

(B) an admission by such plaintiff in response to a request for
admissions (see Ill.$.Ct. Rule 216(a)), or a showing as to the
deemed admission by such plaintiff by reason of plaintiff's failure
to serve a timely denial to such a request (see III.S.Ct. Rule
216(c)), in either event conforming to the statement or declination
to agree described in subparagraph (2)(A) of this rule.

L.R. 81.2 further provides that when a defendant does not comply with one of the
alternatives described in paragraph (2) above, “the action will be subject to remand to the state

court for failure to establish a basis of federal jurisdiction.” See, e.g., Murley v. Landmark Pub.

Corp., No. 02¢50392, 2002 WL 31854979 (N.D.IIl. Dec. 19, 2002) (remanding case to state court

for defendant’s failure to comply with L.R. 81.2).


~ Minute Order Form (06497)

ay

United States District Court, Northern District of Illinois

ame of Assi judge Sitting Ju her

Nive Magarate Judge | RObert W. Gettleman | “yarisnaned Judge

CASE NUMBER 03 C 2674 DATE August 12, 2003
CASE Janet Rubel v_ Pfizer, Inc., et al
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.)

MOTION:

DOCKET ENTRY:

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

(2) Oo Brief in support of motion due __

(3) Oo Answer brief to motion due___. Reply to answer brief due.

(4) oO Hearing

(5) Q Status hearing

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___setfor__—at__

(7) Qa Trial[set for/re-set for] on at

(8) oO {Bench/Jury trial] [Hearing] held/continued t fo at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (General Rule21 OO FRCP41(a)\(1) O FRCP41(a)(2).

qo) «off {Other docket entry]

Memorandum opinion and order entered. Accordingly, plaintiff's motion
to remand the instant case to the Circuit Court of Cook County, Ill. is
granted. Status hearing date of 9/3/03 is stricken.

a

AUG 18 20

Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form. iynog LOYISIO ‘sn earl
Mug

Copy to judge/magistrate judge.

courtroom a2 s2iud BL onv eo dase mailed notice
GDS deputy’s
initials ut

‘baa eh ORES
ental Cloke USitice smiling deputy ita

os y
/
al [For further detail see order attached to the original minute order.] et vat q
‘No notices required, advised in open court. . "Document
No notices required, number of notices
x Notices mailed by judge’s staff.

20



controversy exceeds $75,000. In the instant case, there is complete diversity of citizenship
among the parties: plaintiff is a citizen of Illinois, and both defendants are incorporated in
Delaware and reside in New York. With respect to the amount in controversy, defendants “need
demonstrate no more than a good faith, minimally reasonable belief that the suit might result ina
judgment in excess of [$75,000].” Normand v. Orkin Exterminating Co.. Inc., 193 F.3d 908, 910

(7" Cir. 1999).

The original complaint seeks declaratory and injunctive relief, including restitution and
disgorgement of illegal profits, as well as damages (including amounts for personal injury and
punitive damages). Notwithstanding defendants’ argument to the contrary, the Seventh Circuit
has implied that aggregate disgorgement of profits shall not count toward the amount in

controversy. See Del Vecchio v. Conseco, Inc., 230 F.3d 974, 977-978 (7" Cir. 2000). Further,

it is unclear whether plaintiff’s prayer for personal injury damages, taken together with the
potential for a punitive damages award, can satisfy the amount in controversy.’ Aside from
alleging that “plaintiff and class members were exposed to and many suffered side effects of the
drug,” the nature of the personal injuries at issue in the instant suit, and the damages suffered

therefrom, are not apparent from the face of plaintiff’s complaint.

5Notably, as defendants point out, although the original complaint disclaims (apparently
inaccurately) diversity of citizenship, it did not disclaim that plaintiff's recovery in the instant
case would not exceed $75,000. In the Seventh Circuit, the absence of such a disclaimer
supports the conclusion that the amount in controversy exceeds the statutory minimum. See
BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 552 (7" Cir. 2002) (“Had [plaintiff] wanted
to make sure that its stake was less than $75,000, it should have stipulated to that effect.”). But
see Local Rule 81.2 of the Northern District of Illinois, infra.

7


amend the party’s pleading once as a matter of course at any time before a responsible pleading is
served....”).

That a party may waive an objection to his opponent’s failure to seek leave to amend is of
no consequence. See Ragan v. Columbia Mutual Ins. Co., 183 Ill. 2d 342, 355 (1998) (finding
that “failure to obtain leave to amend a complaint is not a jurisdictional defect and that a party
may waive its right to object to the defect”). The question before the court is not whether failure
to obtain leave under Section 2-616(a) is jurisdictional and thus not waivable on appeal, but
rather whether Section 2-616(a) directs parties to seek leave of court before amending their
pleadings.

Plaintiff directs the court’s attention to Fischer v. Senior Living Properties, L.L.C., 329
Ill. App. 3d 551 (IIL. App. 4" Dist. 2002), for the proposition that Section 2-616(a) is “directory”
rather than “mandatory.” This distinction, however, does not alter the court’s conclusion. In
Fischer, the plaintiffs attorney sought leave to amend his complaint, but the judge failed to
timely sign the order granting leave to amend. In declining to invalidate the filing of the
amended complaint, the appellate court characterized the failure to obtain the judge’s signature
as a “minor technicality” and “directory,” and further noted that the plaintiff had “substantially
complied” with Section 2-616(a). Id. at 513. In the instant case, in contrast, plaintiff is not in
substantial compliance with Section 2-616(a) because she never sought leave to file her amended
complaint. Thus, the court concludes that plaintiff's amended complaint does not supersede the
original complaint, and the original complaint is the operative complaint for purposes of

defendants’ removal petition.

Defendants argue that the original complaint was removable on the basis of both federal



purposes of removal is plaintiff’s original complaint, which did not provide a basis for either
diversity or federal question jurisdiction.
DISCUSSION
The propriety of removal is determined on the basis of plaintiff's pleading as it existed at

the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347 (1939); Shannon

y. Shannon, 965 F.2d 542, 545 (7" Cir. 1992); Momans v. St. John’s Northwestern Milita
Academy, Inc., No. 99 C 8510, 2000 WL 33976543, at *2 (N.D.IIL. April 20, 2000). The
threshold task in evaluating plaintiffs motion to remand, then, is to determine which complaint
controlled at the time defendants removed the instant case. Defendants maintain that the original
complaint is not superseded by the amended complaint because, (1) plaintiff did not obtain leave
of court to file her amended complaint “in violation of state procedural requirements,” and (2)
defendants were not properly served with the amended complaint prior to removal. Because the
court concludes that the issue of seeking leave to amend is dispositive, the court need not reach
defendants’ arguments regarding service.
The court agrees with defendants that, under 735 ILCS 5/2-616(a), plaintiff was required
to obtain leave of court before filing her amended complaint. Section 2-616(a) provides:
At any time before final judgment amendments may be allowed on just and reasonable
terms, introducing any party who ought to have been joined as plaintiff or defendant,
dismissing any party, changing the cause of action or defense or adding new causes of
action or defenses, and in any matter, either of form or substance, in any process,
pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the
claim for which it was intended to be brought or the defendant to make a defense or assert
a cross claim. [Emphasis added.]

The rules governing Illinois civil practice do not appear to contemplate an amendment as

a matter of course prior to a responsive pleading. Compare Fed. R. Civ. P. 15(a) (“A party may



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
JANET RUBEL, individually and on behalf of all)
persons similarly situated, ) :
) re
Plaintiffs, ) AUG i
) No. 03 C2674
v. )
) Judge Robert W. Gettleman
PFIZER INC. and PARKE-DAVIS, a division of)
Warner-Lambert Company, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff filed a putative class action complaint on March 12, 2003, in the Circuit Court
Cook County, Illinois, seeking damages, injunctive relief, and attorneys’ fees under the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., arising from
defendants’ alleged marketing of the epilepsy drug Neurontin for “off-label” uses. On April 4,
2003, without leave of court and before defendants had filed any appearance, plaintiff filed an
amended complaint which omitted her prayer for injunctive relief. Defendants were not served
with the amended complaint until April 23, 2003, however, two days after they had already
removed the instant action to this court on the basis of plaintiff's original complaint.

On May 21, 2003, plaintiff moved to remand the instant case to state court, contending
that “any grounds for removal which may have been present in the original Complaint are no
longer before this court” because plaintiff's original complaint was superseded by her amended
complaint, which plaintiff contends does not permit either diversity or federal subject matter

jurisdiction. For the reasons stated herein, the court concludes that the operative complaint for

Ld
9 2003,

of

20