FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOLORES HUNTER; ESTATE OF 

BENJAMIN G. FRANCIS,

Plaintiffs-Appellants, No. 07-35916

v. DC No.  CV 07-0010 RRB PHILIP MORRIS USA; ALTRIA

GROUP, INC.; THE ALASKA OPINION

COMMERCIAL COMPANY,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted August 4, 2008

Anchorage, Alaska

Submission Vacated and Deferred October 29, 2008*

Resubmitted August 27, 2009

Filed September 28, 2009

Before: Dorothy W. Nelson, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Tashima

*Submission of this case was vacated and deferred pending the

Supreme Court’s decision in Altria Group, Inc. v. Good, 129 S. Ct. 538

(2008). 

13909
COUNSEL

Don C. Bauermeister, Burke & Bauermeister, PLLC, Anchorage, Alaska, for the plaintiff-appellant.

John W. Phillips, Phillips Law Group, PLLC, Seattle, Washington, for the defendants-appellees. 

OPINION

TASHIMA, Circuit Judge:

The question of the preemption of state law by federal

tobacco legislation has been addressed numerous times.

Today, we address the preemption issue in the context of the

doctrine of fraudulent joinder, which is invoked to achieve

diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity

jurisdiction by its incorrect finding that the plaintiffsappellants’ state law claims were preempted and constituted

fraudulent joinder. Because the district court should have

remanded the action to state court, we vacate the judgment

HUNTER v. PHILIP MORRIS USA 13913
and remand with instructions to remand the action to state

court. We have jurisdiction over the final judgment of the district court pursuant to 28 U.S.C. § 1291.

BACKGROUND

Benjamin Francis, an Alaska resident and citizen, died at

age fifty-two from lung cancer. As Francis’ survivor and on

behalf of his estate, Dolores Hunter brought a wrongful death

lawsuit in Alaska state court against Philip Morris USA, a

Virginia corporation that produces, markets, and distributes

cigarettes; Altria Group, the parent company of Philip Morris

USA; and the Alaska Commercial Company (“ACC”), an

Alaska corporation that sells merchandise, including cigarettes manufactured by Philip Morris, in stores throughout

Alaska (all three Appellees are collectively referred to as

“Appellees”).

Hunter alleged that Francis’ death resulted from defective

products sold by Appellees. Hunter’s complaint included

claims of: (I) fraud and misrepresentation, (II) products liability, (III) failure to warn, (IV) deceptive advertising, (V)

breach of warranty, (VI) conspiracy, and (VII) addiction

defectiveness.

Philip Morris and Altria (together, the “Altria defendants”)

removed the case to the United States District Court for the

District of Alaska. They argued that Hunter’s state law claims

against ACC were preempted by congressional policy not to

remove tobacco from the market and that ACC therefore was

fraudulently joined, resulting in complete diversity of citizenship. The Altria defendants then filed a motion to dismiss

Hunter’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Hunter filed a

motion to remand, asserting that her complaint adequately

pleaded a strict products liability claim against ACC under

Alaska state law. She argued that ACC was not fraudulently

13914 HUNTER v. PHILIP MORRIS USA
joined and, consequently, that total diversity between plaintiff

and all defendants did not exist.

The district court denied Hunter’s motion to remand. The

court agreed with the Altria defendants that Hunter’s state

product liability claim against ACC was preempted because

it would result in an effective ban on cigarettes, in contravention of congressional policy. Hunter therefore had stated no

possible claim against ACC. The court accordingly found that

ACC was fraudulently joined, resulting in diversity of citizenship. The court denied Hunter’s motion for reconsideration.

The district court then granted the 12(b)(6) motion to dismiss, reasoning that Hunter had failed to identify the specific

products Francis used and the alleged defects in the products,

and that any product liability claims were preempted by the

congressional intent not to ban the sale of cigarettes. The district court entered final judgment in favor of Appellees.

Hunter timely appealed.

DISCUSSION

Hunter contends that the district court erred in denying her

motion to remand the case to state court and, accordingly, that

the court lacked jurisdiction to grant the Altria defendants’

motion to dismiss. We review de novo the district court’s

denial of a motion to remand to state court for lack of removal

jurisdiction. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d

1241, 1243 (9th Cir. 2009); Hamilton Materials, Inc. v. Dow

Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).

[1] A defendant may remove an action to federal court

based on federal question jurisdiction or diversity jurisdiction.

28 U.S.C. § 1441. However, “ ‘[i]t is to be presumed that a

cause lies outside [the] limited jurisdiction [of the federal

courts] and the burden of establishing the contrary rests upon

the party asserting jurisdiction.’ ” Abrego Abrego v. Dow

Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (quoting KokHUNTER v. PHILIP MORRIS USA 13915
konen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994)) (alterations in original). The “strong presumption

against removal jurisdiction means that the defendant always

has the burden of establishing that removal is proper,” and

that the court resolves all ambiguity in favor of remand to

state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

1992) (per curiam) (internal quotation marks omitted).

[2] “ ‘The threshold requirement for removal under 28

U.S.C. § 1441 is a finding that the complaint contains a cause

of action that is within the original jurisdiction of the district

court.’ ” Ansley v. Ameriquest Mortgage Co., 340 F.3d 858,

861 (9th Cir. 2003) (quoting Toumajian v. Frailey, 135 F.3d

648, 653 (9th Cir. 1998)). In determining federal question

jurisdiction, the well-pleaded complaint rule “provides that

federal jurisdiction exists only when a federal question is

presented on the face of the plaintiff’s properly pleaded complaint.” Fisher v. NOS Commc’ns (In re NOS Commc’ns), 495

F.3d 1052, 1057 (9th Cir. 2007) (internal quotation marks and

citations omitted). Thus, the plaintiff is “the master of his

complaint” and may “avoid federal jurisdiction by relying

exclusively on state law.” Balcorta v. Twentieth Century-Fox

Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). It is “settled

law that a case may not be removed to federal court on the

basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the

only question truly at issue in the case.” Franchise Tax Bd. v.

Constr. Laborers Vacation Trust, 463 U.S. 1, 14 (1983); see

also Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009)

(“Federal jurisdiction cannot be predicated on an actual or

anticipated defense.”); Valles v. Ivy Hill Corp., 410 F.3d

1071, 1075 (9th Cir. 2005) (“A federal law defense to a statelaw claim does not confer jurisdiction on a federal court, even

if the defense is that of federal preemption and is anticipated

in the plaintiff’s complaint.”); Ritchey v. Upjohn Drug Co.,

139 F.3d 1313, 1319 (9th Cir. 1998) (“Even when the area

involved is one where complete preemption is the norm, if the

13916 HUNTER v. PHILIP MORRIS USA
complaint relies on claims outside of the preempted area and

does not present a federal claim on its face, the defendant

must raise its preemption defense in state court.”). 

[3] As for diversity jurisdiction, federal district courts have

jurisdiction over suits for more than $75,000 where the citizenship of each plaintiff is different from that of each defendant. 28 U.S.C. § 1332(a). Although an action may be

removed to federal court only where there is complete diversity of citizenship, 28 U.S.C. §§ 1332(a), 1441(b), “one

exception to the requirement for complete diversity is where

a non-diverse defendant has been ‘fraudulently joined.’ ”

Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th

Cir. 2001). Joinder is fraudulent “ ‘[i]f the plaintiff fails to

state a cause of action against a resident defendant, and the

failure is obvious according to the settled rules of the state.’ ”

Hamilton Materials, 494 F.3d at 1206 (quoting McCabe v.

Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987))

(alteration in original). In such a case, the district court may

ignore the presence of that defendant for the purpose of establishing diversity. Morris, 236 F.3d at 1067. 

The Altria defendants removed the case to federal court

based on diversity of citizenship, not federal question jurisdiction. In order to establish diversity, the Altria defendants contended that Hunter’s claims against ACC were both

impermissibly vague and subject to conflict preemption and,

accordingly, that ACC had been fraudulently joined. Removal

accordingly was based on a meld of the implied preemption

doctrine from the federal question context and the fraudulent

joinder doctrine from the diversity context.

[4] The Altria defendants relied in the district court, and

rely here, on the Supreme Court’s decision in Food & Drug

Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

137 (2000) (“FDA”), to argue that Hunter’s product liability

claim was impliedly preempted by the congressional intent to

prevent the categorical ban of cigarettes. The issue in FDA

HUNTER v. PHILIP MORRIS USA 13917
was whether the FDA had jurisdiction to regulate tobacco

products pursuant to the Food, Drug and Cosmetic Act

(“FDCA”), 21 U.S.C. §§ 301-397.1 The Court held that “Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” because, if the FDA were

to regulate tobacco, the provisions of the FDCA would have

required the FDA to ban tobacco altogether. Id. at 126, 137.

“Congress, however, has foreclosed the removal of tobacco

products from the market.” Id. at 137.

The district court agreed with the Altria defendants’ reliance on FDA in denying Hunter’s motion to remand. The

court thus concluded that Hunter’s product liability claim

against ACC was preempted because allowing such a claim

would result in an effective ban on the sale of tobacco products in contravention of congressional objectives. We disagree

with the district court’s reasoning on two grounds. First, we

disagree with the Altria defendants’ use of the affirmative

defense of implied preemption as a basis for asserting fraudulent joinder in order to invoke diversity jurisdiction. Second,

even if the defendants were to be allowed to use the defense

of federal preemption to establish fraudulent joinder, we conclude that Hunter’s state product liability claim is not

impliedly preempted by federal law.

The use of the affirmative defense of federal preemption to

assert fraudulent joinder in order to establish diversity jurisdiction was addressed by the Fifth Circuit in Smallwood v.

Illinois Central R.R. Co., 385 F.3d 568 (5th Cir. 2004) (en

banc). In Smallwood, the plaintiff, Kelli Smallwood, a citizen

of Mississippi, sued Illinois Central, an Illinois corporation

that operated a train in Mississippi, and the Mississippi

1On June 22, 2009, President Obama signed the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776

(2009), which granted the FDA authority to regulate tobacco products.

This legislation, however, does not “affect any action pending in Federal

[or] State . . . court.” Id. § 4(a)(2), 123 Stat. at 1782. 

13918 HUNTER v. PHILIP MORRIS USA
Department of Transportation in state court for negligence.

Illinois Central removed the case to federal court, arguing that

the in-state defendant was improperly joined because Smallwood had no reasonable possibility of recovery against it

because Smallwood’s claims were preempted by the Federal

Railroad Safety Act. The district court agreed and granted

summary judgment on the basis that Smallwood’s claim

against Illinois Central also was preempted. Thus, “the district

court’s decision that Smallwood’s claims against the in-state

defendant were preempted effectively decided the entire

case.” Id. at 571. The Fifth Circuit held that this was error. Id.

[5] The court explained that there are “two ways to establish improper joinder: ‘(1) actual fraud in the pleading of

jurisdictional facts, or (2) inability of the plaintiff to establish

a cause of action against the non-diverse party in state

court.’ ” Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-

47 (5th Cir. 2003)). The court addressed only the second type.

Id. The court “caution[ed] that a summary inquiry is appropriate only to identify the presence of discrete and undisputed

facts that would preclude plaintiff’s recovery against the instate defendant” and reasoned that “the inability to make the

requisite decision in a summary manner itself points to an

inability of the removing party to carry its burden.” Id. at 573-

74. The court further stated that “[t]he party seeking removal

bears a heavy burden of proving that the joinder of the in-state

party was improper.” Id. at 574; see also Florence v. Crescent

Res., LLC, 484 F.3d 1293, 1299 (11th Cir. 2007) (holding

that, “if there is any possibility that the state law might

impose liability on a resident defendant under the circumstances alleged in the complaint, the federal court cannot find

that joinder of the resident defendant was fraudulent, and

remand is necessary”). 

Smallwood also addressed the unique situation when the

same analysis applied to an assertion of fraudulent joinder

applies to all defendants. 

HUNTER v. PHILIP MORRIS USA 13919
[W]hen, on a motion to remand, a showing that compels a holding that there is no reasonable basis for

predicting that state law would allow the plaintiff to

recover against the in-state defendant necessarily

compels the same result for the nonresident defendant, there is no improper joinder; there is only a

lawsuit lacking in merit. In such cases, it makes little

sense to single out the in-state defendants as “sham”

defendants and call their joinder improper. In such

circumstances, the allegation of improper joinder is

actually an attack on the merits of plaintiff’s case as

such — an allegation that, as phrased by the

Supreme Court in Chesapeake & O.R. Co. v. Cockrell, [232 U.S. 146, 153 (1914),] “the plaintiff’s case

[is] ill founded as to all the defendants.” 

385 F.3d at 574. Because there was no improper joinder, the

case was remanded to the district court with instructions to

remand to the state court from which it was removed. See id.

at 576-77. 

[6] We agree with the Fifth Circuit. Here, as in Smallwood,

the district court’s decision that Hunter’s claims against ACC

were preempted “effectively decided the entire case.” Id. at

571. The Altria defendants’ preemption argument accordingly

should have been brought in the context of attacking the merits of Hunter’s case, rather than as a basis for removing the

case to federal court. 

Our decision in Ritchey does not foreclose this holding. In

Ritchey, we held that the statute of limitations defense is a

permissible means by which to establish fraudulent joinder in

order to remove an action on diversity grounds. We emphasized, however, that the statute of limitations defense is a

“rather unique” defense that “does not truly go to the merits

of the plaintiff’s claim in any sense.” 139 F.3d at 1319.

Instead, it “virtually admits the validity of the cause of action

and the plaintiff’s right to collect upon it, but asserts that the

13920 HUNTER v. PHILIP MORRIS USA
plaintiff waited too long to pursue the cause of action.” Id.

That defense accordingly is “a kind of procedural bar, and not

one which relates to the merits of the case.” Id.

[7] The preemption defense, by contrast, goes to the merits

of the plaintiff’s case. When a defendant asserts that the plaintiff’s claim is impliedly preempted by federal law, it cannot

be said that the plaintiff’s failure to state a claim against the

resident defendant is “obvious according to the settled rules

of the state.” Hamilton Materials, 494 F.3d at 1206 (internal

quotation marks omitted). Rather, the preemption question

requires an inquiry into the merits of the plaintiff’s claims

against all defendants and an analysis of federal law. In such

a case, the defendant has failed to overcome the “strong presumption against removal jurisdiction.” Gaus, 980 F.2d at

566. 

[8] Here, for example, it is not obvious from the face of the

complaint that Hunter has failed to state a claim against ACC.

Hunter’s complaint alleged: (1) that Francis “purchased and

used cigarettes from defendants”; (2) the cigarettes were

unsafe and defective and posed a risk that outweighed their

utility; (3) Francis used defendants’ cigarettes “without a

change in condition,” since they had left defendants’ possession; (4) Francis developed lung cancer “as a direct and proximate result of the use of Defendants’ unsafe and defective

cigarettes”; and (5) this caused his family losses.2

[9] In Alaska, “[a] manufacturer is strictly liable in tort

when an article he places on the market knowing that it is to

be used without inspection for defects, proves to have a defect

that causes injury to a human.” Pratt & Whitney Can., Inc. v.

Sheehan, 852 P.2d 1173, 1176 (Alaska 1993) (quoting Green2Although Hunter raised numerous claims in her complaint, we address

only her strict products liability claim, which is the claim she focuses on

in her brief. We do not consider whether she has stated any other claim

or claims on which relief can be granted. 

HUNTER v. PHILIP MORRIS USA 13921
man v. Yuba Power Prods., Inc., 377 P.2d 897, 900 (Cal.

1963)). A plaintiff may claim strict products liability against

a seller by proving that the product has a defect, that the

defect causes an injury to a human being, and that the defendant is a seller. Burnett v. Covell, 191 P.3d 985, 988 (Alaska

2008). Construing Hunter’s pleadings liberally, as required by

Alaska’s notice pleading rules, the complaint sufficiently

alleges a strict products liability claim under Alaska law. See

Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1168 n.4

(Alaska 1998) (explaining that “[a] cause of action is sufficiently pled if it provides the defendant with fair notice of the

nature of the claim,” and that pleadings should be construed

liberally (citing Alaska Ct. R. Civ. P. 8(a))). Because it is not

obvious according to the settled rules of the state that Hunter

has failed to state a claim against ACC, without looking to the

federal law of preemption, we cannot find that the joinder was

fraudulent.

[10] As the Eleventh Circuit has stated, “if there is a possibility that a state court would find that the complaint states a

cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand

the case to the state court.” Tillman v. R.J. Reynolds Tobacco,

340 F.3d 1277, 1279 (11th Cir. 2003) (per curiam). In Tillman, after receiving an answer to a certified question from the

Alabama Supreme Court regarding the liability of retail

defendants for selling cigarettes, the court held that the district

court “erroneously asserted federal jurisdiction on the ground

that [the retail defendants] had been fraudulently joined.” Id.

The court therefore vacated the district court’s judgment in

favor of R.J. Reynolds and remanded with instructions to

remand the case to the state court. Id.

[11] Even if it were appropriate to raise implied preemption

as a ground for a finding of fraudulent joinder, the Altria

defendants would face both the strong presumption against

removal jurisdiction and the “general presumption against

fraudulent joinder.” Hamilton Materials, 494 F.3d at 1206. In

13922 HUNTER v. PHILIP MORRIS USA
order successfully to carry this heavy burden, they have relied

on the doctrine of conflict preemption, which arises “where it

is ‘impossible for a private party to comply with both state

and federal requirements,’ or where state law ‘stands as an

obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Freightliner Corp. v.

Myrick, 514 U.S. 280, 287 (1995) (quoting English v. Gen.

Elec. Co., 496 U.S. 72, 79 (1990), and Hines v. Davidowitz,

312 U.S. 52, 67 (1941)); see also Cipollone v. Ligget Group,

Inc., 505 U.S. 504, 516 (1992) (“In the absence of an express

congressional command, state law is pre-empted if that law

actually conflicts with federal law, . . . or if federal law so

thoroughly occupies a legislative field as to make reasonable

the inference that Congress left no room for the States to supplement it.”) (internal quotation marks omitted). 

“When addressing questions of express or implied preemption, we begin our analysis ‘with the assumption that the

historic police powers of the States [are] not to be superseded

by the Federal Act unless that was the clear and manifest purpose of Congress.’ ” Altria Group, Inc. v. Good, 129 S. Ct.

538, 543 (2008) (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230 (1947)) (alteration in original). This

assumption “applies with particular force” where, as here, the

field is one that is “traditionally occupied by the States.” Id.

The Supreme Court and the appellate courts have addressed

the question of the preemption of state law by federal tobacco

legislation in a series of cases. See, e.g., Altria, 129 S. Ct.

538; Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001);

Cipollone, 505 U.S. 504; Rivera v. Philip Morris, Inc., 395

F.3d 1142 (9th Cir. 2005); Boerner v. Brown & Williamson

Tobacco Co., 394 F.3d 594 (8th Cir. 2005). Appellees emphasize that they do not rely on the doctrine of express preemption, which was at issue in, for example, Lorillard, Cipollone,

and Rivera. Those cases dealt with the express preemption

provision of the Federal Cigarette Labeling and Advertising

Act of 1965 (the “Labeling Act”), as amended by the Public

HUNTER v. PHILIP MORRIS USA 13923
Health Cigarette Smoking Act of 1969, which requires warnings on cigarette packages. It is noteworthy, however, that

even when addressing the express preemption provision of the

Labeling Act, the courts have not found all state law claims

and regulations to be preempted. 

For example, in Boerner, the Eighth Circuit rejected the

tobacco company’s argument that the plaintiff’s state design

defect claim was preempted by the Labeling Act. 394 F.3d at

599-600. The court relied on the express language of the

Labeling Act, which indicated Congress’ intent to preempt

only smoking-related laws “ ‘concerning the advertising or

promotion of cigarettes,’ ” and reasoned that the Act “is silent

on the question of preemption of other state law causes of

action.” Id. at 600 (quoting Jones v. Vilsack, 272 F.3d 1030,

1034 (8th Cir. 2001)). “Because ‘Congress’ enactment of a

provision defining the preemptive reach of a statute implies

that matters beyond that reach are not pre-empted,’ ” the court

held that the state law claim was not preempted. Id. (quoting

Cipollone, 505 U.S. at 517); see also, e.g., Altria, 129 S. Ct.

at 549 (concluding that the Labeling Act did not preempt a

state law claim that the tobacco companies’ advertising was

fraudulent); Lorillard, 533 U.S. at 552 (holding that, although

the Labeling Act preempts state regulation of cigarette advertising, it “does not foreclose all state regulation of conduct as

it relates to the sale or use of cigarettes”); Cipollone, 505 U.S.

at 519-20 (holding that the Labeling Act “only pre-empted

state and federal rulemaking bodies from mandating particular

cautionary statements and did not pre-empt state-law damages

actions”); Rivera, 395 F.3d at 1148 (holding that a strict liability failure-to-warn claim was not preempted by the Labeling Act).

The Altria defendants’ argument that Hunter’s claim

against ACC is impliedly preempted relies solely on the principle expressed in FDA that Congress has foreclosed the

removal of tobacco products from the market. In reaching this

conclusion, the Supreme Court reasoned that “Congress has

13924 HUNTER v. PHILIP MORRIS USA
directly addressed the problem of tobacco and health through

legislation on six occasions since 1965,”

3

 and that Congress

enacted the statutes despite the fact that “the adverse health

consequences of tobacco use were well known.” FDA, 529

U.S. at 137-38. The Court explained that Congress had regulated the labeling and advertisement of tobacco products,

while simultaneously expressing the policy of protecting

“commerce and the national economy.” Id. at 138-39. 

Appellees argue that FDA’s core holding should be

expanded based on Geier v. Am. Honda Motor Co., 529 U.S.

861 (2000), in which the Supreme Court found that a state

common-law tort action was preempted by a safety standard

promulgated by the Department of Transportation under the

authority of a federal statute. Id. at 886. Geier, however, is

distinguishable.

The tort action in Geier relied on a claim that manufacturers had a duty to install an airbag in a car. Id. at 881. The federal regulation, however, “deliberately sought variety — a

mix of several different passive restraint systems.” Id. at 878.

The state law claim, which would have required manufacturers to install airbags, therefore “would have presented an

obstacle to the variety and mix of devices that the federal regulation sought.” Id. at 881.

3The Court listed six statutes aimed at regulating tobacco. In addition

to the 1965 Labeling Act and the Public Health Cigarette Smoking Act of

1969, Congress enacted the Alcohol and Drug Abuse Amendments of

1983, Pub. L. No. 98-24, 97 Stat. 175 (expressing the policy to reduce

alcohol and drug abuse); the Comprehensive Smoking Education Act,

Pub. L. No. 98-474, 98 Stat. 2200 (addressing labeling requirements for

cigarettes); the Comprehensive Smokeless Tobacco Health Education Act

of 1986, Pub. L. No. 99-252, 100 Stat. 30 (providing for public education

regarding smokeless tobacco products); and the Alcohol, Drug Abuse, and

Mental Health Administration Reorganization Act, Pub. L. No. 102-321,

106 Stat. 323 (addressing, inter alia, the use of tobacco products by

minors). See FDA, 529 U.S. at 137-38. 

HUNTER v. PHILIP MORRIS USA 13925
[12] Unlike Geier, in which the state law claim would have

imposed a duty that directly contradicted a federal regulation,

Hunter’s claim cannot be said to “stand[ ] as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp., 514 U.S. at 287 (internal quotation marks omitted). That is, Hunter’s product

liability claim does not present an obstacle to the congressional policy concerning the regulation of tobacco. In 2004,

after the Court decided FDA, Congress repealed the provision

of the Agricultural Adjustment Act of 1938 that had articulated federal policy in support of the marketing of tobacco.

See Fair and Equitable Tobacco Reform Act of 2004, Pub. L.

No. 108-357, § 611(a); see also FDA, 529 U.S. at 137 (quoting the now-repealed provision at length). The remaining regulatory provisions concern labeling, research, and education

and do not provide strong evidence of a federal policy against

more stringent state regulation. We decline to find preemption

“in the absence of clear evidence of a conflict.” Geier, 529

U.S. at 885; see also Sprietsma v. Mercury Marine, 537 U.S.

51, 69 (2002) (concluding that the Federal Boat Safety Act’s

express preemption clause did not cover state common law

claims, and that “its structure and framework do not convey

a clear and manifest intent to go even further and implicitly

pre-empt all state common law relating to boat manufacture”)

(internal quotation marks and citation omitted).

[13] In sum, the Altria defendants have failed to overcome

the presumption against removal because Hunter’s complaint

does not indicate that she has obviously failed to state a claim

against ACC. Accordingly, the district court erred in concluding that ACC was fraudulently joined. The Altria defendants

further have failed to establish a clear conflict between Hunter’s claim and federal law. Implied preemption therefore does

not apply. Because ACC was not fraudulently joined, there

was no complete diversity of citizenship, and the case should

have been remanded to the state court. Appellants shall

recover their costs on appeal from Appellees.

13926 HUNTER v. PHILIP MORRIS USA
[14] For the foregoing reasons, the judgment of the district

court is vacated and the case is remanded with instructions

that the case be remanded to state court.

VACATED and REMANDED with instructions.

HUNTER v. PHILIP MORRIS USA 13927