Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 1 of 32
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`CLEAN LABEL PROJECT FOUNDATION,
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`Plaintiff,
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`v.
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`ABBOTT LABORATORIES, INC.,
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`Defendant.
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`Civil Action No. 21-cv-3247 (BAH)
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`Chief Judge Beryl A. Howell
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`MEMORANDUM OPINION
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`This case about product labeling is itself difficult to label. It is not exactly a case about
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`product safety, but about whether an allegedly unsafe component of a product renders misleading
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`advertising materials suggesting that the product is beneficial. It is not exactly a case about
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`federal law, but it looks to federal agency guidance as to what a product can or cannot safely
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`contain. It is not exactly a class action, but is brought by a representative named plaintiff
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`organization on behalf of a large number of non-participating members of the general public. It
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`is not exactly a case seeking money damages, but plaintiff’s pleadings, as framed, could require
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`the expenditure of substantial funds to effectuate the relief sought.
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`Pending before the Court is plaintiff’s motion to remand this quirky case to D.C. Superior
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`Court following its removal here by defendant. For the reasons explained below, plaintiff’s
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`motion to remand is granted and two other pending motions are denied as moot.
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`I.
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`BACKGROUND
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`Plaintiff Clean Label Project Foundation describes itself as a “non-profit public interest
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`organization whose mission is to educate the public and enable consumers to make informed
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`shopping choices.” Compl. ¶ 46, ECF No. 1-1. In service of that mission, plaintiff “uses state-
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`of-the-art laboratory testing to identify the best and worst labeled products,” publicly publishes
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`Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 2 of 32
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`its findings, and in so doing hopes to “reduc[e] contamination across all consumer products.” Id.
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`¶¶ 48–49.
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`Contaminants of interest to plaintiff include lead, a “known neurotoxin,” and cadmium, a
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`“known neurotoxin and osteotoxin.” Id. ¶ 25. Plaintiff cites statements by an assortment of
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`government and private organizations in support of a general scientific consensus that “there is
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`no safe level of lead for children,” id. ¶ 30, and alleges various facts pertaining to the myriad
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`adverse physiological effects of lead, id. ¶¶ 57–75. Plaintiff similarly alleges facts related to the
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`adverse effects of cadmium, but without citing any statements by U.S. government agencies. Id.
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`¶¶ 27–29, 76–86.
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`One item in defendant’s expansive product portfolio is Similac Alimentum Infant
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`Formula for Food Allergies and Colic (12.1 oz) (“Alimentum”). Compl. ¶ 23. Alimentum is
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`part of defendant’s broader Similac line of infant formula products marketed as having benefits
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`pertaining to “brain development,” “bone development,” and “immune support.” Id. ¶¶ 11–16.
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`Defendant also markets Similac products with such slogans as “We promise to give your baby
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`the best” and “Nearly a century of keeping promises.” Id. ¶¶ 99–100. To evaluate Alimentum,
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`plaintiff purchased an amount of the product for analysis by a third-party laboratory. Id. ¶ 24.
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`According to plaintiff, that analysis showed that the purchased Alimentum sample “contains
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`dangerous levels of” lead and cadmium, which it asserts shows that these contaminants “are
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`present in [Alimentum], or at a minimum, that [defendant] makes no efforts to confirm that they
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`are absent.” Id. ¶¶ 25–26. Specifically, testing in September 2021 showed that the Alimentum
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`purchased by plaintiff contained a lead content of 3.5 parts per billion (“ppb”) and a cadmium
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`content of 5.2 ppb. Id. ¶¶ 107–112. According to plaintiff, this type of contamination is
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`Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 3 of 32
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`incompatible with defendant’s descriptions of Alimentum as promoting “brain development,”
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`“bone development,” and “immune support.” See id. ¶¶ 26, 31–40, 66, 70, 72, 75, 81–86, 97.
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`Based on these findings, on October 1, 2021, plaintiff filed a complaint in D.C. Superior
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`Court alleging, in a single count, that defendant violated the D.C. Consumer Protection
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`Procedures Act (“CPPA”), D.C. Code § 28-3901 et seq. Compl. ¶ 123. The Complaint is styled
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`as a “representative action claim on behalf of [plaintiff] and the general public of the District of
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`Columbia,” pursuant to D.C. Code § 28-3905(k)(1–2). Compl. ¶ 123. Plaintiff alleges that
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`because Alimentum contains detectable amounts of lead and cadmium, defendant’s marketing
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`statements mislead or fail to inform consumers with respect to “material facts about” Alimentum.
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`See generally id. ¶¶ 114–34. Additionally, plaintiff alleges a further CPPA violation because
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`Alimentum is “adulterated,” as defined by D.C. Code § 48-103, due to the presence of the
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`harmful metals lead and cadmium. See Compl. ¶¶ 125–26, 135. On December 10, 2021,
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`defendant timely filed a Notice of Removal, ECF No. 1, to this Court.1
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`Plaintiff timely filed the instant Motion to Remand to D.C. Superior Court (“Pl.’s Mot.”),
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`ECF No. 8, on January 10, 2022.2 During briefing on the motion to remand, on January 31,
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`2022, defendant filed the also-pending motion to dismiss for failure to state a claim pursuant to
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`Federal Rule of Civil Procedure 12(b)(6). Def.’s Mot. Dismiss Failure State Claim, ECF No. 11.
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`The motion to dismiss was accompanied by a Request for Judicial Notice, ECF No. 11-3,
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`concerning 22 exhibits from various public sources. Before filing its opposition to the motion to
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`A notice of removal must be filed within 30 days of service of the summons and complaint on defendant.
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`28 U.S.C. § 1446(b)(1). Here, the Complaint was filed on October 1, 2021, with service effected on November 17,
`2021. Notice of Removal ¶ 2. Accordingly, the December 10, 2021, notice of removal falls within the authorized
`30-day timeframe.
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`A motion to remand for lack of subject matter jurisdiction may be made “at any time before final
`judgment.” 28 U.S.C. § 1447(c). Furthermore, the motion complies with the 30-day deadline for a motion to
`remand for any other reason, see id. Thirty days after December 10, 2021, was Sunday, January 9, 2022. Thus, the
`deadline was Monday, January 10, 2022, the date the instant motion was filed.
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`dismiss, plaintiff filed, on February 21, 2022, a Motion to Strike Defendant’s Requests for
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`Judicial Notice, ECF No. 14, seeking to strike a declaration filed with the motion to dismiss, the
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`request for judicial notice, the 22 sundry exhibits thereto, and “all arguments relying on those
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`documents,” id. at 2. Briefing on the trio of interlocking motions was completed on March 14,
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`2022.
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`On May 11, 2022, review by the Court identified a possible lack of diversity of
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`citizenship between the parties on account of both named parties appearing to be incorporated in
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`Delaware, and directed the parties to file a supplemental report clarifying the citizenship of the
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`parties. See Min. Order (May 11, 2022). The parties responded in a joint statement on May 13,
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`2022. Joint Statement Resp. May 11, 2022 Order (“Joint Statement”), ECF No. 20. All pending
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`motions are now ripe for disposition.
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`II.
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`LEGAL STANDARD
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`“[A]ny civil action brought in a State court of which the district courts of the United
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`States have original jurisdiction[] may be removed by the defendant . . . to the district court of
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`the United States for the district and division embracing the place where such action is
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`pending.” 28 U.S.C. § 1441(a). “When it appears that a district court lacks subject matter
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`jurisdiction over a case that has been removed from a state court, the district court must remand
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`the case, and the court’s order remanding the case to the state court whence it came ‘is not
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`reviewable on appeal or otherwise.’” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192,
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`196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c) and quoting id. § 1447(d)); see also Kircher v.
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`Putnam Funds Tr., 547 U.S. 633, 640 (2006) (noting the “policy of Congress oppos[ing]
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`interruption of the litigation of the merits of a removed cause by prolonged litigation of questions
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`of jurisdiction of the district court to which the cause is removed,” resulting in statutes that “have
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`accordingly limited the power of federal appellate courts to review orders remanding cases
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`removed by defendants from state to federal court” (internal quotation marks and citation
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`omitted) (citing 28 U.S.C. § 1447(d))). Due to the statutory prohibition of most appellate review
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`of remanded cases, the legal standard for removal has largely been developed in the district
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`courts.
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`Defendants seeking the exercise of federal court jurisdiction over a removed case “bear[]
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`the burden of pleading” the basis for jurisdiction. Novak v. Capital Mgmt. & Dev. Corp., 452
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`F.3d 902, 906 (D.C. Cir. 2006) (citation omitted); Apton v. Volkswagen Grp. of Am., Inc., 233 F.
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`Supp. 3d 4, 11 (D.D.C. 2017). Absent such a showing, a “court must remand the case.”
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`Johnson-Brown v. 2200 M Street LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003) (citing 28 U.S.C.
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`§ 1447(c)). “In light of the significant federalism concerns involved, this court ‘strictly
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`construes the scope of its removal jurisdiction,’” RGI Events & Pub. Rels., LLC v. Al Qurm
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`Mgmt. Consultancy, No. 18-cv-1828 (BAH), 2019 WL 935498, at *2 (D.D.C. Feb. 26, 2019)
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`(quoting Moses v. SunTrust Mortg., Inc., No. 11-cv-00822, 2012 WL 113375, at *2 (D.D.C. Jan.
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`13, 2012) (quoting Breakman v. AOL LLC, 545 F. Supp. 2d 96, 100 (D.D.C. 2008))), resolving
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`“any ambiguities concerning the propriety of removal in favor of remand,” Animal Legal Def.
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`Fund v. Hormel Foods Corp., 249 F. Supp. 3d 53, 56, 61 (D.D.C. 2017) (quoting Johnson-
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`Brown, 257 F. Supp. 2d at 177).
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`III. DISCUSSION
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`Defendant asserts three independent bases for removal: (1) the Complaint “raise[s]
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`substantial questions of federal law” both by relying on “federal regulatory bodies” for the
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`assertion that there is “no known safe level” of lead and cadmium, Notice of Removal ¶¶ 9–14,
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`and because federal law governs the contents and labeling of infant formula, id. ¶¶ 15–20;
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`(2) diversity jurisdiction lies under the Class Action Fairness Act (“CAFA”), Pub. L. No. 109-2,
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`119 Stat. 4, Notice of Removal ¶ 22–30; and (3) even if CAFA is inapplicable and only a single
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`plaintiff is named, the parties are completely diverse and the $75,000 amount in controversy
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`threshold is met by considering the expected total cost of injunctive relief, Def.’s Opp’n Pl.’s
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`Mot. Remand (“Def.’s Opp’n”) at 27–32, ECF No. 12. Each proposed basis for jurisdiction is
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`examined in turn, and each fails.
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`A.
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`Federal Question
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`Defendant argues that the sole CPPA claim in the Complaint “depends upon [plaintiff’s]
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`representation of federal law” because a “necessary, disputed, and substantial question to
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`[plaintiff’s] affirmative theory of relief is whether federal law actually does consider any (even
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`trace) quantity of metal in food to be detrimental.” Def.’s Opp’n at 8–9 (emphasis in original)
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`(citing Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)).
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`This strained attempt to transform scientific observations made informally by a federal agency
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`into a question of federal law is meritless.
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`Defendant’s argument centers on the Complaint’s allegation that defendant “deceived
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`D.C. consumers into believing that [Alimentum] supported ‘brain health’ when it contained
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`avoidable levels of multiple deleterious neurotoxins with no known safe level in a product
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`intended for use during a critical period of neurodevelopment.” Def.’s Opp’n at 9 (emphasis in
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`original) (quoting Compl. ¶ 40). The premise “that there is ‘no known safe level’ of lead and
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`cadmium” is, defendant asserts, a “necessary allegation” in the Complaint—one that is
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`principally supported by reliance on “statements of federal regulators.” Id. (citing Compl. ¶¶ 30,
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`73).
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`Plaintiff counters that the Complaint neither pleads any federal cause of action nor
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`“attempt[s] to conceal any federal argument” in its CPPA claim. Pl.’s Mot. at 25–26. Plaintiff’s
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`sole claim, rather, is that defendant engaged in deceptive marketing and advertising under CPPA
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`because Alimentum allegedly does not in fact support healthy infant development as promised,
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`due to its inclusion of “detectible amounts of neurotoxins and osteo-toxins, including lead and
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`cadmium.” Id. at 26 (citing Compl. ¶¶ 11, 23, 41, 123, 134). Nowhere does the Complaint
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`allege that either the Alimentum product or its labeling and marketing actually violates any
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`federal law or regulation.
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`In Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S.
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`308 (2005), the Supreme Court reaffirmed “the commonsense notion that a federal court ought to
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`be able to hear claims recognized under state law that nonetheless turn on substantial questions
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`of federal law,” id. at 312. The Court has synthesized its “arising-under” jurisprudence
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`pertaining to state law claims with a four-part test: “federal jurisdiction over a state law claim
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`will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and
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`(4) capable of resolution in federal court without disrupting the federal-state balance approved by
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`Congress.” Gunn v. Minton, 568 U.S. 251, 258 (2013). This rule admits only a “special and
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`small category” of state-law cases to federal court. Empire Healthchoice Assurance, Inc. v.
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`McVeigh, 547 U.S. 677, 699 (2006); see also Merrell Dow Pharms. Inc. v. Thompson, 478 U.S.
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`804, 813 (1986) (“[T]he mere presence of a federal issue in a state cause of action does not
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`automatically confer federal-question jurisdiction.”). This case lies well outside that narrowly
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`circumscribed category, as defendant’s removal attempt falters on the “necessarily raised” prong
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`of the Grable/Gunn test.
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`Defendant argues that plaintiff’s “allegation that there is ‘no safe’ level of metal
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`whatsoever in infant foods and blood” is “a necessary element of [plaintiff’s] theory.” Def.’s
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`Opp’n at 2. That much is true. Plaintiff alleges that commissioned laboratory tests found that
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`Alimentum “contains dangerous levels of known neurotoxin lead and known neurotoxin and
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`osteotoxin cadmium,” Compl. ¶¶ 24–25, to the tune of 3.5 parts per billion and 5.2 parts per
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`billion, respectively, id. ¶¶ 109, 112. From those findings plaintiff concludes that Alimentum “is
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`adulterated” as a matter of D.C. law as “the avoidable presence of these contaminants directly
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`contradict the ‘brain development,’ ‘bone development[,]’ and ‘immune support’ functions
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`touted by” defendant. Id. ¶ 36. The sole “benchmark” plaintiff offers as to what constitutes a
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`harmful amount of lead is, effectively, zero, based on assessments by the Environmental
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`Protection Agency (“EPA”), Food and Drug Administration (“FDA”), World Health
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`Organization (“WHO”), Centers for Disease Control and Prevention (“CDC”), American
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`Medical Association (“AMA”), and American Academy of Pediatrics (“AAP”), who “have all
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`independently stated that there is no safe level of lead for children.” Id. ¶ 30. Given that
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`plaintiff alleges that a detectable, if small, level of lead in Alimentum has harmful effects,
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`contrary to defendant’s marketing representations, the “no safe level” standard is indeed a
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`“necessary element” of plaintiff’s theory of CPPA liability.
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`Defendant does not explain, however, why it is necessary for the “no safe level” standard
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`to exist as a matter of federal law for plaintiff’s allegations to survive, nor for that matter why
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`the federal agencies’ assessments cited in the Complaint are “law” at all. First, among the six
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`authorities the Complaint cites as effectively advancing the “no safe level” perspective, half of
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`them are not federal agencies at all. See Compl. ¶ 30.c (WHO); id. ¶ 30.e (AMA); id. ¶ 30.f
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`(AAP). Furthermore, out of the six quoted authorities, three are arguably inapposite as they
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`indicate only that there is no safe level of lead found in blood, a distinct question from what level
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`of exposure is or is not safe. See id. ¶ 30.b, 30.c, 30.d.3 Out of the three remaining quotations
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`As a logical matter, the link between a child’s exposure to an amount of lead, however small, and any
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`resulting level of lead in the child’s bloodstream would seem to involve an intermediate allegation about absorption
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`that speak to lead exposure in terms other than blood levels, only one comes from a federal
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`entity—the EPA, id. ¶ 30.a—whereas the other two come from private groups—the AMA, id.
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`¶ 30.e, and the American Academy of Pediatrics, id. ¶ 30.f. In any event, regardless of which of
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`the six statements are deemed relevant, the point remains that federal sources do not even make
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`up the majority of the support in the Complaint for the proposition that no amount of lead is safe.
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`Furthermore, plaintiff offers several pages of additional allegations and citations to sources on
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`the dangers of lead and cadmium, almost none of which relies on government sources, id. ¶¶ 57–
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`86, rendering the federal agency statements even less “necessary.”
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`Given that plaintiff’s CPPA claim is predicated on multiple sources opining that the
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`presence of lead and cadmium renders a product unsafe, rather than only because the federal
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`government says so in a legally binding form, this level of reliance on federal authority cannot
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`reasonably be viewed as “necessary” to the Complaint.4
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`processes, a link which defendant itself points out is missing in the Complaint. Def.’s Opp’n at 1 (“CLP is . . .
`wrong about the science. . . . CLP fails to plead facts plausibly showing that the trace quantities of lead or cadmium
`alleged in Alimentum do raise the blood levels of lead or cadmium in infants.” (emphasis in original)). Indeed,
`defendant repeatedly seizes on this missing link in support of its pending motion to dismiss. See Def.’s Mem. Supp.
`Mot. Dismiss at 7, ECF No. 11-1 (“Yet the Complaint does not allege that trace lead or cadmium in Alimentum is
`sufficient to raise infant blood levels of lead or cadmium.” (emphasis in original)); see also id. at 16, 19, 20, 21, 31.
`All that said, even if all of the quoted federal agency statements are credited as relevant, none of them present
`determinations of federal law.
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`The “well-pleaded complaint” rule yields the same result. It is well settled that “extraneous material”
`beyond what is needed to state a claim is to be ignored by a court evaluating “arising-under” federal question
`jurisdiction. See 13D WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3566 (3d ed., Apr.
`2022 update). Just as extraneous material such as “background facts” cannot be pleaded for the sake of
`manufacturing federal question jurisdiction, a defendant also cannot remove an action simply because the plaintiff
`included such extraneous material. See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Tr. for S. Cal.,
`463 U.S. 1, 8 (1983) (“If it appears before final judgment that a case was not properly removed, because it was not
`within the original jurisdiction of the United States district courts, the district court must remand it to the state court
`from which it was removed.”). Here, plaintiff’s central CPPA allegation is that Alimentum is “adulterated” and
`defendant’s statements about the product’s healthful benefits are misleading due to the adverse effects of lead and
`cadmium. See generally Compl. ¶¶ 123–35. The only facts essential to that pleading are that (a) the product
`contains the toxic metals and (b) such metals are harmful in any amount, and the Complaint offers sundry non-
`federal sources for those core allegations. Anything beyond that, including invocation of the informal statements of
`regulators, goes to the strength of plaintiff’s proof, not to the sufficiency of its allegations.
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`Notably, neither party points to anything indicating that the agency statements at issue
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`have any force of law. The statements are better described as scientific observations made by
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`entities that happen to be federal regulators with subject matter expertise. First, plaintiff quotes
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`an EPA webpage stating that the “Maximum Contaminant Level Goal [‘MCLG’] for lead is zero.
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`EPA has set this level based on the best available science which shows there is no safe level of
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`exposure to lead.” Compl. ¶ 30.a (quoting Basic Information About Lead in Drinking Water,
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`EPA, https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-
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`drinking-water (last visited May 25, 2022)). The very same paragraph on the EPA webpage,
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`however, describes MCLGs as “non-enforceable health goals,” and EPA goes on to explain why
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`it has not set “an enforceable regulation called a maximum contaminant level” for lead.
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`Second, plaintiff asserts that the FDA has stated “[t]here is no known identified safe
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`blood lead level,” Compl. ¶ 30.b, but that statement is traceable only to a now-defunct FDA
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`webpage offering “Questions and Answers on Lead in Foods”—hardly a document with any
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`meaningful legal effect.5 Finally, plaintiff correctly quotes the CDC as stating “[n]o safe blood
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`lead level has been identified,” id. ¶ 30.d, but the statement appears on a 2013 “Factsheet”
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`webpage discussing the purposes behind “[b]iomonitoring studies on levels of lead” that assist in
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`“determin[ing] whether people have been exposed to higher levels of lead than are found in the
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`general population.” National Biomonitoring Program—Factsheet: Lead, CDC (last updated
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`Plaintiff’s citation supporting the assertion about the FDA’s conclusion of no known safe blood level of
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`lead, takes a circuitous route, citing a 2017 Charlotte Observer article, hidden behind an aggressive paywall,
`discussing an Environmental Defense Fund report that used FDA data to draw conclusions about the prevalence of
`lead in baby foods. Compl. ¶ 30.b (citing Teresa Welsh, Lead Found in 20% of Baby Food, Report Says,
`CHARLOTTE OBSERVER (updated June 20, 2017, 8:26 AM), https://www.charlotteobserver.com/news/nation-
`world/national/article157063044.html). That article, in turn, quotes a now-defunct FDA webpage with the key
`statement that “[t]here is no known identified safe blood lead level.” Id. An archived copy from 2017 of said FDA
`webpage confirms that the agency posted the statement, but also shows that the context was merely an informal list
`of ten “Questions and Answers on Lead in Foods.” Questions and Answers on Lead in Foods, FDA (updated May
`9, 2017), archived copy available at https://bit.ly/3rZaJhZ.
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`July 12, 2013), https://www.cdc.gov/biomonitoring/Lead_factsheet.html. Here again, the CDC’s
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`description of the lack of a safe lead level offers motivation for systematic monitoring and
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`detection efforts but falls well short of being a regulation of any kind. In sum, defendant is
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`incorrect in arguing that plaintiff relies on “representations of federal law and the federal
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`regulatory regime for metals in foods.” Def.’s Opp’n at 9.6
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`Defendant’s references to case law where arising-under federal question jurisdiction was
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`found under Grable demonstrate both what it means for a case to necessarily depend on a federal
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`issue and the lack of analogy here. Defendant invokes Organic Consumers Ass’n v. Hain
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`Celestial Group, Inc. (“Hain”), 285 F. Supp. 3d 100 (D.D.C. 2018), where another Judge on this
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`Court accepted federal question jurisdiction, see Def.’s Opp’n at 11. In Hain, the plaintiff
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`alleged CPPA violations based on a product’s labeling as “organic” despite containing “synthetic
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`ingredients that are not permitted under the federal Organic Food Production Act of 1990.” 285
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`F. Supp. 3d at 101. The court dismissed the case on federal preemption grounds, id. at 101, and
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`only mentioned federal question jurisdiction—which the parties did not contest, id. at 102—in
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`passing in a footnote by reciting the Grable standard without further analysis, id. at 102 n.2. The
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`distinction with the instant case is stark: in Hain, the alleged CPPA misrepresentation hinged on
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`the use of the federally defined and regulated term “organic,” while here no similar reliance on
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`federal law is presented. Similarly, in Dooley v. Medtronic, Inc., 39 F. Supp. 3d 973 (W.D.
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`Tenn. 2014), the district court allowed Grable jurisdiction over a state-law misrepresentation
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`claim concerning marketing of a medical device for off-label use not approved by the FDA.
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`There too, actual violation of a federal rule was central to the state-law claim. See id. at 983.
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`Indeed, to the contrary, defendant insists that no federal laws or regulations impugn a product with trace
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`amounts of lead or cadmium, see id. at 15, and nowhere does the Complaint allege that there are. Put another way,
`the parties appear to agree that the case is not controlled by any federal regulation, calling into question the “actually
`disputed” prong of the Grable/Gunn test.
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`Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 12 of 32
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`While defendant claims the instant case is similar because plaintiff’s allegations rely on “an
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`alleged federal regulatory determination (which Abbott disputes) that any lead or cadmium is not
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`safe,” Def.’s Opp’n at 12, no such formal federal “determination” is at issue here, quite unlike
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`the FDA approval requirements at issue in Dooley. Indeed, defendant insists that “FDA
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`regulations do not require exclusion of trace—though faintly detectible—levels of lead or
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`cadmium in order to meet FDA’s standards for being an infant formula.” Def.’s Opp’n at 14
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`(emphasis added). This characterization is irreconcilable with defendant’s premise that an FDA
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`“federal regulatory determination” forms a required part of plaintiff’s claim.
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`All told, defendant fails to identify a question of federal law on which plaintiff’s CPPA
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`claim turns, let alone any that is “necessary” to its resolution. To be sure, federal agency
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`statements about no safe level of lead existing have considerable persuasive value as scientific
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`authority when assessing the factual question whether Alimentum is “unsafe,” but the agencies’
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`scientific advice is no different in kind as a legal matter from similar statements by other
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`domestic and international organizations, around which plaintiff also bases its claims.
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`Accordingly, defendant cannot justify removal by claiming that this action “aris[es] under”
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`federal law. 28 U.S.C. § 1331.7
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`Defendant conflates to some extent the question of removal with the question whether plaintiff’s state-law
`7
`CPPA claim is preempted by a federal regulatory scheme insofar as it concerns the definition of “adulteration.” See
`Notice of Removal ¶¶ 16–18; Def.’s Opp’n at 14–15. As defendant obliquely acknowledges, see Def.’s Opp’n at
`15, 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 pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties
`concede that the federal defense is the only question truly at issue,” Caterpillar Inc. v. Williams, 482 U.S. 386, 393
`(1987) (emphasis in original). Accordingly, preemption arguments are irrelevant for the purpose of deciding the
`instant motion.
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`
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`Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 13 of 32
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`B.
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`Class Action Fairness Act
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`In the alternative, defendant asserts that removal is proper under the Class Action
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`Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of
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`28 U.S.C.). Notice of Removal ¶ 22. As relevant here, CAFA confers diversity jurisdiction on
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`federal district courts over “any civil action in which the matter in controversy exceeds the sum
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`or value of $5,000,000, exclusive of interest and costs, and is a class action in which any member
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`of a class of plaintiffs is a citizen of a State different from any defendant,” 28 U.S.C.
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`§ 1332(d)(2)(A), so long as the proposed class includes at least 100 members, id.
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`§ 1332(d)(5)(B). A “class action,” for CAFA purposes, is “any civil action filed under rule 23 of
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`the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure
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`authorizing an action to be brought by 1 or more representative persons as a class action.” Id.
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`§ 1332(d)(1)(B).
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`Plaintiff contends that this suit is not a “class action” to which CAFA applies but rather a
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`“representative action under the D.C. CPPA on behalf of the ‘general public.’” Pl.’s Mot. at 8.
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`Claiming CAFA jurisdiction, then, requires “this Court to treat [plaintiff’s] claim as a totally
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`different lawsuit than the one Plaintiff actually filed in order to transform this case into a class
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`action lawsuit under CAFA to suit the Defendant’s jurisdictional preference.” Id. Defendant
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`responds by accusing plaintiff of “artful dodging of federal court jurisdiction,” Def.’s Opp’n at
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`16, and insisting that neither the label assigned to an action by a plaintiff or a state nor the form
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`of pleading the action can take precedence over the essential characteristics of whether the suit
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`appears to be a class action, see id. at 17. Plaintiff has the better argument as well as the weight
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`of persuasive and nearly unanimous district court authority on its side.8
`
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`The analysis that follows concludes that this action is not a “class action” at all for CAFA purposes,
`8
`obviating any need to referee the parties’ other disagreements relating to CAFA jurisdiction, including (1) whether
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`Case 1:21-cv-03247-BAH Document 21 Filed 05/25/22 Page 14 of 32
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`Plaintiff brings this case under D.C. Code § 28-3905(k)(1)(C)–(D) as a nonprofit public
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`interest organization on behalf of itself and, acting in the capacity of a private attorney general,
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`“the general public of the District of Columbia.” Compl. ¶¶ 46, 55–56, 123. Nowhere in the
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`Complaint does plaintiff describe the suit as a “class action,” define a putative class, or make any
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`attempt to comply with either the federal Rule 23 or the nearly identical D.C. Rule 23
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`requirements for a class action.9 Nevertheless, the practical effect, if plaintiff prevails, of the
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`declaratory and injunctive relief sought—declaring that defendant is in violation of the CPPA,
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`enjoining the violative conduct, and requiring “corrective advertising,” Compl. at 28 (Prayer for
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`Relief), may differ little if at all from the relief that plaintiff would have sought had it elected to
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`bring this suit as a federal class action in the first instance under Rule 23(b)(2).
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`The parties have cited to no binding authority from either the D.C. Circuit or D.C. Court
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`of Appeals directly addressing whether a CPPA representative action seeking only injunctive
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`relief and brought in a “private attorney general” posture is to be deemed a “class action” within
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`the scope of Rule 23 and/or CAFA. The analysis that follows, confirmed by persuasive
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`authority, leads to the conclusions that Rule 23’s requirements need not apply to such actions,
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`CAFA does not provide a basis for federal jurisdiction over such actions, and this case is not
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`converted into a federal class action simply by seeking injunctive relief for consumers.
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`Accordingly, this case is not a “class action” for CAFA purposes.
`
`
`the 100-plaintiff requirement is met, see Def.’s Opp’n at 19, (2) whether the amount in controversy exceeds
`$5,000,000, see Pl.’s Mot. at 19–22; Def.’s Opp’n at 24–27, (3) whether the “non-aggregation principle” applies in
`assessing amount in controversy, see Pl.’s Mot. at 22