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Nunes v. Affinitylifestyles.Com, Inc.

United States District Court, D. Nevada

January 23, 2017

JENNIFER NUNES, et al., Plaintiffs,
v.
AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER, Defendant.

          ORDER REMANDING TO STATE COURT, (ECF NO. 13)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Order Plaintiffs Jennifer Nunes, Dennys Sian, Ramona Wells, and Keyatra Grant filed this proposed class action in Nevada state court against defendant Affinitylifestyles.com d/b/a Real Water. Real Water removed the case to this court on the basis of federal question jurisdiction. The plaintiffs move to remand. I grant the motion and remand the case to state court because the plaintiffs assert only state law claims, those claims are not preempted, and they do not raise a substantial issue of federal law.

         I. BACKGROUND

         The plaintiffs allege that Real Water uses municipal tap water, processes it, and sells it as bottled water at a “premium price.” ECF No. 2-1 at 4. According to the complaint, Real Water makes numerous false scientific and health related claims on its label, including that it is “beyond alkalinity, ” is infused with negative ions, can help the consumer's body become more alkalized to improve health, removes toxins, allows for the intake of antioxidant electrons to neutralize harmful free radicals, and increases cellular hydration. Id. at 5-6. The plaintiffs allege there is no scientific basis for these claims and some of the claims are contrary to known scientific principles. Id. at 6-8. The plaintiffs thus claim Real Water has violated the Federal Food, Drug and Cosmetic Act (FDCA) and a Food and Drug Administration (FDA) regulation by misbranding its bottled water. Id. at 9. Although the complaint refers to a violation of federal law, the plaintiffs assert only state law claims of violation of Nevada's laws against consumer fraud and deceptive trade practices (count 1), breach of express warranty (count 2), breach of the implied warranty of merchantability (count 3), and unjust enrichment (count 4). Id. at 13-19.

         Real Water removed the action on the basis of federal question jurisdiction, asserting that the plaintiffs' claims were preempted by the FDCA.[1] ECF No. 2 at 3.Id. The plaintiffs move to remand, arguing that they assert only state law claims and that the mere reference to federal law within their state law claims does not support removal. Real Water responds that the plaintiffs' state law claims are expressly preempted by the Nutrition Labeling and Education Act (NLEA), which amended the FDCA. Alternatively, Real Water argues the plaintiffs' claims raise a substantial question of federal law sufficient to support federal question jurisdiction.

         II. ANALYSIS

         A defendant may remove a state court case under 28 U.S.C. § 1441(a) only when “the district courts of the United States have original jurisdiction.” Federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The presence or absence of a federal question is determined by the well-pleaded complaint rule. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Under that rule, federal question jurisdiction exists “only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Id. The plaintiff is the master of his or her complaint; “he or she may avoid federal jurisdiction by exclusive reliance on state law.” Id. Thus a plaintiff is not required to assert federal claims, even if they exist. Id.

         This does not mean, however, that a plaintiff may defeat removal by “omitting to plead necessary federal questions in a complaint.” ARCO Envtl. Remediation v. Dep't of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000) (quotation omitted). If a federal question is an essential element of the relief sought, a plaintiff may not avoid federal jurisdiction by choosing to ignore it in the complaint. Id. A state-created cause of action arises under federal law:

(1) where federal law completely preempts state law; (2) where the claim is necessarily federal in character; or (3) where the right to relief depends on the resolution of a substantial, disputed federal question.

Id. (internal citations omitted).

         Federal courts are courts of limited jurisdiction and are “presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Res., 873 F.2d 1221, 1225 (9th Cir. 1989). The “‘strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Remand is required if the court lacks subject matter jurisdiction. 28 U.S.C. §1447(c).

         A. Express Preemption

         Real Water argues the NLEA amendments to the FDCA contain an express preemption provision that supports removal based on federal question jurisdiction. The plaintiffs respond that the preemption provision refers only to state law claims that would impose requirements different from or in addition to the FDCA's requirements. The plaintiffs contend that because their complaint is based on allegations that Real Water violated the FDCA, they do not seek to impose different or additional obligations on Real Water, so their claims are not preempted.

         Generally, a case arises under “the law that creates the cause of action.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8 (1983) (quotation omitted). A complaint that “alleg[es] 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.'” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 817 (1986) (holding that removal was improper based on state law claims incorporating violations of the FDCA because such claims do not arise under federal law). There is no private right of action to enforce the FDCA. PhotoMedex, Inc. v. Irwin, ...


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