Opinion
No. 04 Civ. 6609.
December 23, 2004
MEMORANDUM
After plaintiff filed the above-captioned suit in the Supreme Court of the State of New York, alleging that defendant drug manufacturers caused the drug Neurontin to be used for purposes for which it was unsafe, defendants removed the case to federal court, purportedly because plaintiff's claims arise under federal law. See 28 U.S.C. § 1331. Plaintiff then moved to remand, and on November 27, the Court issued an order granting plaintiff's motion. See Order, 11/27/04. This Memorandum explains the reasons for that order.
A federal court must remand a case to state court if it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c). The parties in this case are not of diverse citizenship and no federal claim has been pleaded. Defendants allege, however, that this is one of those rare cases where federal question jurisdiction still exists because "the vindication of a right under state law necessarily turns on some construction of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9 (1983); see also, e.g., D'Alessio v. N.Y. Stock Exch., Inc., 258 F.3d 93, 101 (2d Cir. 2001).
In this case, however, no theory of recovery depends on proving a violation of federal law and plaintiff, at oral argument, expressly represented he would not seek a jury instruction allowing recovery under any of his state law claims based solely on a finding that defendants violated federal law. See Transcript, 11/12/04, at 8. In express reliance on that binding representation, the Court concludes that any reference to a violation of federal law in the pursuit of plaintiff's state claims will be incidental, rather than essential. In such circumstances, the doctrine of Franchise Tax Bd. is inapplicable. Because, therefore, there is no subject matter jurisdiction, the Court remanded this case to state court.