Things have been weird. What was normal is not now. What has been common recently is not normal. The phrase “the new normal” has been so over-used that hearing it induces a sour look on our face. Somewhere in our brain—like our face, the bloggers have a single, first-person plural brain for stylistic purposes—there is
Plaintiff lawyers must be mighty allergic to federal court. They perform all sorts of maneuvers to avoid CAFA removal of mass actions. For example, they will artificially subdivide their cases into groups of under 100. And/or they will disclaim any intent to try the cases together. Do these circumventions work? Perhaps most important, since so…
In honor of Buddy Ryan, the legendary football coach who passed away last week, we will be especially crotchety in today’s case report. It was while we were in law school in Chicago that Ryan was the coordinator of a Bears defense that was magnificently ferocious. When the 1985 Bears won the Super Bowl, Ryan was carried off the field. Never before or since has an assistant coach been so honored. Ryan later went to Philadelphia, as did we. (His arrival was slightly more ballyhooed.) Ryan became the most beloved Eagles coach ever, though his teams never mustered a single playoff win. Ryan is so revered here because he built a defense that fit the city’s self-image – blue collar and brutal. It was fun watching Reggie White, Jerome Brown, Clyde Simmons, and Mike Golic maul quarterbacks. It was fun watching Andre Waters and Wes Hopkins terrify opposing receivers. It was fun watching linebacker Seth Joyner wreak havoc all over the field. It was less fun watching an Eagles offense that defined the word erratic. Aside from achievements on the field, Ryan cut the ultimate figure of pure orneriness. He was a genuine hero in the Korean War (fighting alongside Dan Blocker, who later played Hoss in Bonanza). Sports-and-war analogies are overused and overheated, but Ryan’s coaching style was undeniably bellicose. He put a bounty on Dallas Cowboy players, rewarding his players for maiming America’s team. Ryan once punched a fellow coach on the sidelines. He had such contempt for a player that he offered to trade him for a six-pack, and the beer didn’t “even have to be cold.” Philly is a hard-core union town, and Ryan earned big-time props by refusing to coach scab players during a NFL labor dispute. Ryan guested on one of Philly’s notoriously hostile sports-talk shows and, after a caller criticized a trade, Ryan said something like, “Gee, I’m all broken-up about your opinion.”
We’re all broken up about the opinion in Oregon v. General Nutrition Corp., 2010 U.S. Dist. LEXIS 78038 (D. Oregon March 30, 2016). It is not a drug or device case, but its treatment of removal and federal question is relevant for our work, and not in a good way. The state of Oregon brought an action in Oregon state court (talk about home field advantage) alleging that the defendant had misrepresented that certain products were “lawful dietary supplements” when they actually contained substances forbidden (according to the state) by federal law. While the claims were brought under Oregon law, those claims also referenced, indeed, completely turned on, an interpretation of the federal Food, Drug and Consumer Act. The defendant removed the case to federal court. Oregon moved to remand back to state court. The issue was whether there was federal jurisdiction. Both species of federal jurisdiction were in play here, federal question and diversity jurisdiction. We will devote this piece to federal question jurisdiction, because the diversity issue is too squirrely. (In brief: a state as party cannot support diversity jurisdiction, so the defendant needed to show that the state was not the true plaintiff. The court did not buy this argument.)
It sure seems like Oregon was raising a federal question. Were the substances at issue permitted or forbidden by federal law? You’ll never learn the answer to that question from this opinion. Presumably (but, as you’ll see, we’re against presuming), that intricate issue of regulatory construction will be entrusted to good and true jurors. The court began its jurisdictional analysis with an extended riff on the “strong presumption” against finding removal jurisdiction. We get loads about how the “burden of establishing federal subject-matter jurisdiction for purposes of removal is on the party seeking removal.” We’ve heard all this before. But why is there a presumption against removal jurisdiction? It is hardly self-evident. Why is the burden on the poor defendant, who never asked to be sued? Shouldn’t the burden be on the plaintiff, as most burdens are? You can say that federal courts are courts of limited jurisdiction, but what court isn’t? When we prosecuted misdemeanor cases in California state courts, we were required to prove that the crime was committed in the court’s county. Not every case could be brought into that court. So enough with the limited jurisdiction rationale. Isn’t the discussion of presumptions and burdens nothing more than a judicial fig leaf? Whenever courts spill ink on presumptions and burdens, they inevitably follow-up with an analysis that claims the issue isn’t even close. The presumption was not necessary at all, was it?