No.
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`Supreme Court of the United States
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`PETITION FOR WRIT OF CERTIORARI
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` 
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`i
`QUESTION(S) PRESENTED
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`Petitioners’ class action complaint brought in
`state court seeking relief under Missouri law for
`respondents’ marketing of fake prescription pet food
`products raised neither a substantial nor a disputed
`federal question. In ruling nonetheless that federal courts
`have subject-matter jurisdiction over this suit, did the
`court of appeals introduce chaos into this Court’s coherent
`jurisprudence about when federal question jurisdiction
`will lie over state-law claims?
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`None
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`ii
`STATEMENT OF RELATED CASES
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`iii
`TABLE OF CONTENTS
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` Page
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`QUESTION(S) PRESENTED .............................................................. i
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`STATEMENT OF RELATED CASES ................................................. ii
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`TABLE OF AUTHORITIES ............................................................... iv
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`OPINIONS BELOW ............................................................................ 1
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`JURISDICTION .................................................................................. 2
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`RELEVANT PROVISIONS INVOLVED ............................................ 2
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`STATEMENT ..................................................................................... 7
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`REASONS FOR GRANTING THE PETITION .................................. 16
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`CONCLUSION .................................................................................. 30
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`APPENDIX
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`Circuit Court Opinion ............................................................... 1a
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`District Court Decision ............................................................. 8a
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`Order Denying Rehearing ...................................................... 23a
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`Petition ...................................................................................... 24a
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`iv
`TABLE OF AUTHORITIES
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`Page
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`CASES
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`ALDEN V. MAINE, 527 U.S. 706, 754 (1999) ............................. 30
`AMERICAN WELL WORKS COMPANY V. LAYNE &
`BOWLER COMPANY, 241 U.S. 257, 259 (1916) ..................... 21
`CATERPILLAR, INC. V. WILLIAMS, 482 U.S. 386, 392
`& N. 7 (1987) ...................................................................... 18, 21
`EMPIRE HEALTHCHOICE ASSURANCE,, INC. V.
`MCVEIGH, 547 U.S. 677, 699-700 (2006) ........................ 25, 27
`ERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 64, 78-
`79 (1938) ................................................................................... 30
`EXXON MOBIL CORP. V. ALLAPATTAH SERVS.,
`INC., 545 U.S. 546, 552 (2005) ................................................ 23
`FLYING PIGS, LLC V. RRAJ FRANCHISING, LLC,
`757 F.3D 177, 182 (4TH CIR. 2014) ......................................... 25
`FRANCHISE TAX. BD. OF CAL. V. CONSTR.
`LABORERS VACATION TRUST, 463 U.S. 1, 9-10
`(1983) ....................................................................... 18, 24, 25, 26
`GRABLE & SONS METAL PRODS., INC. V. DARUE
`ENG'G & MFG., 545 U.S. 308, 314 (2005) ..................... passim
`GULLY V. FIRST NATIONAL BANK, 299 U.S. 109,
`117 (1936) ................................................................................. 26
`GUNN V. MINTON, 568 U.S. 251, 257 (2013) ............ 24, 25, 27, 28
`HENDERSON EX REL. HENDERSON V. SHINSEKI,
`562 U.S. 428, 434 (2011) .......................................................... 23
`KOKKENEN V. GUARDIAN LIFE INS. CO., 511 U.S.
`375, 377 (1994) ......................................................................... 23
`MERRELL DOW PHARM. INC. V. THOMPSON, 478
`U.S. 804 (1986) ............................................................... PASSIM
`RIVET V. REGIONS BANK OF LA., 522 U.S. 470, 475
`(1998) ........................................................................................ 18
`SHAMROCK OIL & GAS CORP. V. SHEETS, 313 U.S.
`100, 108-109 (1941) .................................................................. 23
`WYETH V. LEVINE, 555 U.S. 555, 574 (2009) .................... 24, 27
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`

`

`v
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`STATUTES
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`21 U.S.C. §§ 301 .................................................................... 12, 13
`21 U.S.C. § 321(g)(1) .................................................................... 5
`28 U.S.C. § 1254(1) ....................................................................... 2
`28 U.S.C. § 1331 ..................................................................passim
`28 U.S.C. § 1332 ............................................................................ 3
`28 U.S.C. § 1332(c)(1) ........................................................... 11, 14
`28 U.S.C. §§ 1441(a) ............................................................... 4, 23
`28 U.S.C. §1446(a) ........................................................................ 4
`28 U.S.C. § 1453(b) ................................................................. 5, 11
`28 U.S.C. § 1453(c)(1) ................................................................. 14
`28 U.S.C. § 2101(c) ....................................................................... 2
`Mo. Rev. Stat. § 407.020.1 ..................................................... 6, 10
`Mo. Rev. Stat.§ 416.031.1 ...................................................... 6, 10
`Mo. Rev. Stat. § 416.031.2 ................................................ 6, 10,13
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`

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`1
`OPINIONS BELOW
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`The published Opinion of the United States
`Court of Appeals for the Eighth Circuit in Anastasia
`Wullschleger et al. v. Royal Canin U.S.A., Inc. et al.,
`C.A. No. 19-2645, decided March 13, 2020, and reported
`at 953 F.3d 519 (8th Cir. 2020), ruling that there was
`federal subject matter jurisdiction to hear petitioners’
`class action and vacating the decision of the federal
`district court for the Western District of Missouri to
`remand petitioners’ civil action to the Circuit Court of
`Jackson County, Missouri, is set forth in the Appendix
`hereto (App. 1-7).
`
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`The unpublished and unreported Order of the
`federal district court for the Western District of
`Missouri in Anastasia Wullschleger et al. v. Royal
`Canin U.S.A., Inc. et al., Civil Action No. 19-00235-CV-
`W-GAF, filed June 13, 2019, remanding petitioners’
`class action back to the Circuit Court of Jackson
`County, Missouri, is set forth in the Appendix hereto
`(App. 8-22).
`
`The unpublished Order of the United States
`Court of Appeals for the Eighth Circuit in Anastasia
`Wullschleger et al. v. Royal Canin U.S.A., Inc. et al.,
`C.A. No. 19-2645, filed April 16, 2020, denying
`petitioners’ timely filed petition for Panel rehearing or
`for rehearing en banc, is set forth in the Appendix
`hereto (App. 23).
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`Petitioners’ civil complaint alleging a putative
`class action against respondents, filed in the Circuit
`Court of Jackson County, Missouri, on February 8,
`2019, is set forth in the Appendix hereto (App. 24-85).
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`2
`JURISDICTION
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`The decision of the United States Court of
`Appeals for the Eighth Circuit vacating the decision of
`the federal district court for the Western District of
`Missouri to remand petitioners’ civil action to the
`Circuit Court of Jackson County, Missouri, was filed on
`March 13, 2020; and
`its further Order denying
`petitioners’ timely filed petition for Panel rehearing or
`for rehearing en banc was filed and decided on April 16,
`2020 (App. 1-7;23).
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`In addition, on March 19, 2020, in light of the
`ongoing public health emergency associated with the
`COVID-19 pandemic, this Court issued an Order
`extending the deadline for the filing any petition for
`writ of certiorari due on or after March 19, 2020, for 150
`days from the date of the court of appeals’ order
`denying a timely filed petition for rehearing.
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`This petition for writ of certiorari is filed within
`the time allowed by this Court’s rules, 28 U.S.C. §
`2101(c), and this Court’s Order of March 19, 2020.
`
`
`invoked
`is
`The jurisdiction of this Court
`pursuant to the provisions of 28 U.S.C. § 1254(1).
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`RELEVANT PROVISIONS INVOLVED
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`United States Constitution, Article III, § 2:
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`The judicial Power shall extend to all Cases, in
`Law and Equity, arising under this Constitution,
`the Laws of the United States, and Treaties
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`3
`made, or which shall be made, under their
`Authority....
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`28 U.S.C. § 1331 (Federal question jurisdiction):
`
`
`original
`shall have
`courts
`The district
`jurisdiction of all civil actions arising under the
`Constitution, laws, or treaties of the United
`States.
`
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`28 U.S.C. § 1332 (c)(1) & (d)(2) (diversity of
`citizenship):
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`(c) For the purposes of this section and section
`1441 of this title—
`(1) a corporation shall be deemed to be a citizen
`of every State and foreign state by which it has
`been incorporated and of the State or foreign
`state where
`it has
`its principal place of
`business....
`....
`(d)
`....
`(2) The district courts shall have original
`jurisdiction of any civil action in which the
`matter in controversy exceeds the sum or value
`of $5,000,000, exclusive of interest and costs, and
`is a class action in which—
`(A) any member of a class of plaintiffs is a citizen
`of a State different from any defendant;
`(B) any member of a class of plaintiffs is a foreign
`state or a citizen or subject of a foreign state and
`any defendant is a citizen of a State; or
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`4
`(C) any member of a class of plaintiffs is a citizen
`of a State and any defendant is a foreign state or
`a citizen or subject of a foreign state.
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`28 U.S.C. §§ 1441(a) & (b) (Removal of civil
`actions):
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`(a) Generally.—
`Except as otherwise expressly provided by Act
`of Congress, any civil action brought in a State
`court of which the district courts of the United
`States have original
`jurisdiction, may be
`removed by the defendant or the defendants, to
`the district court of the United States for the
`district and division embracing the place where
`such action is pending.
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`(b) Removal Based on Diversity of Citizenship.—
`(1) In determining whether a civil action is
`removable on the basis of the jurisdiction under
`section 1332(a) of this title, the citizenship of
`defendants sued under fictitious names shall be
`disregarded.
`(2) A civil action otherwise removable solely on
`the basis of the jurisdiction under section 1332(a)
`of this title may not be removed if any of the
`parties in interest properly joined and served as
`defendants is a citizen of the State in which such
`action is brought.
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`28 U.S.C. §1446(a) (Procedure for removal of civil
`actions):
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` (a) Generally.—
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`5
`A defendant or defendants desiring to remove
`any civil action from a State court shall file in the
`district court of the United States for the district
`and division within which such action is pending
`a notice of removal signed pursuant to Rule 11 of
`the Federal Rules of Civil Procedure and
`containing a short and plain statement of the
`grounds for removal, together with a copy of all
`process, pleadings, and orders served upon such
`defendant or defendants in such action.
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`28 U.S.C. § 1453(b) (removal of class actions):
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`(b) In General.—
`A class action may be removed to a district court
`of the United States in accordance with section
`1446 (except that the 1-year limitation under
`section 1446(c)(1) shall not apply), without
`regard to whether any defendant is a citizen of
`the State in which the action is brought, except
`that such action may be removed by any
`defendant without the consent of all defendants.
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`21 U.S.C. § 321(g)(1) (Federal Food Drug and
`Cosmetic Act [FDCA]):
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`(g)
`(A) articles
`term “drug” means
`(1) The
`recognized
`in
`the official United States
`Pharmacopoeia,[1]
`official
`Homoeopathic
`Pharmacopoeia of the United States, or official
`National Formulary, or any supplement to any of
`them; and (B) articles intended for use in the
`diagnosis,
`cure, mitigation,
`treatment, or
`prevention of disease in man or other animals;
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`6
`Missouri Revised Statutes § 407.020.1:
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`Unlawful practices, penalty--exceptions.
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`407.020. 1. The act, use or employment by any
`person of any deception, fraud, false pretense,
`false promise, misrepresentation, unfair practice
`or the concealment, suppression, or omission of
`any material fact in connection with the sale or
`advertisement of any merchandise in trade or
`commerce or the solicitation of any funds for any
`charitable purpose, as defined in section 407.453,
`in or from the state of Missouri, is declared to be
`an unlawful practice....Any
`act, use
`or
`employment
`declared
`unlawful
`by
`this
`subsection violates this subsection whether
`committed before, during or after the sale,
`advertisement or solicitation.
`
`Missouri Revised Statutes §§ 416.031.1 &
`416.031.2:
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`Restraint of trade prohibited.
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`416.031. 1. Every contract, combination or
`conspiracy in restraint of trade or commerce in
`this state is unlawful.
`2. It is unlawful to monopolize, attempt to
`monopolize, or conspire to monopolize trade or
`commerce in this state.
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`7
`STATEMENT
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`2015, petitioner Anastasia
`of
`June
`In
`Wullschleger (“petitioner” or “Wullschleger”) began
`purchasing for her dog prescription pet food marketed
`by respondent Royal Canin U.S.A., Inc. (“respondent”
`or “Royal Canin”) at the recommendation of a
`veterinarian in her local PetSmart store. She continued
`to do so based upon the representations by both the
`veterinarian and PetSmart personnel that she could not
`buy this pet food without a prescription and a
`completed MedCard from the veterinarian (App. 59-60).
`In fact, Royal Canin’s prescription pet food contains no
`drug, medicine or other ingredient that requires a
`prescription or regulatory approval.
`
`
`Having been told that she needed a prescription
`to buy Royal Canin’s dog food, Wullschleger believed
`that this product was intended to treat the specific
`health problems of her dog; that it contained medicine
`of some sort; that some kind of regulatory oversight
`was associated with its manufacture; and that her
`purchase of this prescription pet food was akin to her
`purchase of prescription drugs from a pharmacy. She
`also knew that this pet food was located in a section of
`the PetSmart store separate from non-prescription pet
`food; that this section contained an advisory to
`customers that a prescription and a MedCard were
`required for its purchase; and that it sold for a
`significantly higher price than non-prescription pet food
`(App. 59-62). Because of this prescription requirement,
`Wullschleger paid more for Royal Canin’s prescription
`dog food than she would have paid in the absence of
`such a requirement (App. 62).
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`8
`Beginning in 2009 and continuing until 2019,
`petitioner Geraldine Brewer (“petitioner” or “Brewer”)
`at the recommendation of her veterinarian purchased
`for her cat prescription pet
`food marketed by
`respondent Nestle Purina Petcare Company
`(“respondent” or “Purina”). She continued to do so
`based upon representations by both her veterinarian
`and PetSmart personnel that she could not buy this
`specialized food without a prescription and a completed
`MedCard from the veterinarian. (App. 62-63). In fact,
`Purina’s prescription cat food contains no drug,
`medicine or other
`ingredient
`that requires a
`prescription or regulatory approval.
`
`
`Having been told that she needed a prescription
`to buy Purina’s cat food, Brewer believed that this
`product was intended to treat the specific health
`problems of her cat; that it contained medicine of some
`sort; that some kind of regulatory oversight was
`associated with its manufacture; and that her purchase
`of this prescription pet food was akin to her purchase of
`prescription drugs from a pharmacy. She also knew that
`this pet food was located in a section of the PetSmart
`store separate from non-prescription pet food; that this
`section contained an advisory to customers that a
`prescription and a MedCard were required for its
`purchase; and that it sold for a significantly higher price
`than non-prescription pet food (App. 63-64). Because of
`this prescription requirement, Brewer paid more for
`Purina’s prescription cat food than she would have paid
`without such a requirement (App. 64-65).
`
`
`In both cases, Royal Canin and Purina
`(“respondents”) marketed to petitioners their fake
`prescription pet food products in order to cause
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`

`9
`Wullschleger and Brewer to purchase these products at
`a significantly higher price than non-prescription pet
`food (App. 25-29). Respondents never submitted any of
`their so-called “prescription” pet food products to the
`U.S. Food and Drug Administration (“FDA”) for
`review and approval, as required for any prescription
`pet product, because, as respondents well knew, none of
`their products possessed medicinal or drug properties
`which would warrant oversight by the FDA (App. 26).
`Yet respondents’ scheme misled petitioners as
`consumers into believing they were purchasing an
`actual prescription product, creating that experience by
`requiring a veterinarian’s prescription
`for
`their
`purchase (App. 27-28).
`
`
`Like most reasonable consumers, petitioners
`are less price sensitive when purchasing prescription
`products as opposed to over-the-counter ones. In this
`way, respondents’ marketing caused petitioners to
`overpay for respondents’ fake prescription products,
`depriving them of any meaningful consumer choice. In
`the absence of this unlawful scheme, petitioners likely
`would have purchased similar pet food but at a lower
`price
`(App. 40-41). Thus when they purchased
`respondents’ prescription pet products, they were
`caused to pay an exorbitant, unwarranted price for
`them, thereby
`injuring them and causing them
`recoverable loss and damage (App. 43;64-65;76;78; 79) .
`
`
`On February 8, 2019, petitioners brought this
`putative class action against respondents in the Circuit
`Court of Jackson County, Missouri, alleging the facts
`already recited above (App. 3;9). Their state-court
`“petition” identified both petitioners as citizens of
`Missouri and they brought this suit not only on their
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`

`10
`own behalf but also on behalf of all other similarly
`situated Missouri citizens, i.e., those Missouri citizens to
`whom respondents marketed their fake prescription
`pet products scheme (App. 2; 9). As they claimed in the
`first paragraph of their petition, respondents conspired
`with other pet food manufacturers to “create[ ] and
`enforce[ ] upon retailers and consumers the mandatory
`use of a prescription, issued by a veterinarian, as a
`condition precedent to the purchase of [their]...dog and
`cat food” (App. 10).
`
`
`Petitioners further alleged that respondents’
`insistence on a veterinarian-issued prescription as a
`condition precedent for the purchase of their pet food
`misled reasonable consumers like them to believe that
`this product had been tested and approved by the FDA,
`was subject to government inspection and oversight,
`and possessed medicinal and drug properties for which
`consumers are willing to pay a premium (Id.). That
`none of these things were true, petitioners claimed,
`renders
`respondents’ prescription
`scheme
`fake,
`misleading, and contrary to law (Id.).
`
`
`that
`in seven counts
`Petitioners alleged
`respondents violated the Missouri Merchandising
`Practices Act (Mo. Rev. Stat. § 407.020.1) (“MMPA”),
`which prohibits any “deception, fraud, false pretense,
`false
`promise, misrepresentation,
`[or]
`unfair
`practice...in connection with the sale or advertisement
`of any merchandise in trade or commerce...”; the
`Missouri Antitrust Law (Mo. Rev. Stat. §§ 416.031.1 &
`416.031.2), which forbids any conspiracy to monopolize
`trade or commerce; and the Missouri law of unjust
`enrichment (App. 10-11).
`
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`

`

`11
`After being served with the petition, Royal
`Canin with Purina’s consent removed this case to the
`federal district court for the Western District of
`Missouri pursuant to 28 U.S.C. § 1453(b), resting their
`removal on federal-question jurisdiction under 28
`U.S.C. § 1331, and diversity of citizenship under 28
`U.S.C. § 1332(c)(1) (App. 3;9;12). On April 24, 2019,
`petitioners moved to remand the case back to the
`Circuit Court of Jackson County (App. 3;8). On June 13,
`2019, the district court, Fenner, J., issued an Order
`granting petitioners’ motion to remand to state court
`(App. 8-22).
`
`
`The district judge noted that removal statutes
`are strictly construed with all doubts about federal
`jurisdiction resolved in favor of state jurisdiction over
`the controversy (App. 11-12). As for federal-question
`jurisdiction, the motion judge resorted to the well-
`pleaded complaint rule, i.e., that federal jurisdiction is
`established only if a federal question is presented on
`the face of a properly pleaded complaint (App. 12-13).
`Applying this Court’s holding in Grable & Sons Metal
`Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314
`(2005), the district judge examined the complaint to
`determine if petitioners’ state-law claims necessarily
`raised a substantial and actually disputed federal issue,
`which a
`federal
`forum “may entertain without
`disturbing any congressionally approved balance of
`federal and state judicial responsibilities” (App. 13
`quoting Grable, supra).
`
`
`The district court could find no such substantial
`federal issue on the face of petitioners’ complaint
`(App.14-17).
`It
`read
`the allegations describing
`respondents’
`fake prescription
`requirement
`as
`
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`

`

`12
`that none of
`claim
`bottomed on petitioners’
`respondents’ pet food contained a drug or medicine
`warranting review or approval by the FDA; that
`neither Missouri law nor federal law therefore requires
`a prescription
`for such products; and that by
`nonetheless imposing a prescription requirement on
`their sale (at an exorbitant price), respondents have
`misrepresented to consumers like them that these
`products have been evaluated by the FDA as a drug or
`medicine that can be sold by prescription only (App. 13-
`15).
`
`
`As Judge Fenner concluded, none of these
`allegations implicates the Federal Food, Drug and
`Cosmetics Act (21 U.S.C. §§ 301 et seq.) (“FDCA”),
`requires an interpretation of FDA regulations or
`invokes even FDA’s Compliance Policy Guide (“CPG”)
`(App.
`13-14
`). Petitioners
`alleged
`instead
`a
`straightforward violation of state law, i.e., the MMPA,
`which prohibits any “deception, fraud, false pretense,
`false
`promise, misrepresentation,
`[or]
`unfair
`practice...in connection with the sale or advertisement
`of any merchandise in trade or commerce...” (App. 14-
`15). That
`is, petitioners’
`“theory----that
`these
`representations by respondents deceive consumers into
`believing
`th[eir] products
`comply with FDA
`regulations, amounts to an unlawful act in violation of
`the MMPA----requires only
`interpretations of the
`MMPA and not the FDCA or CPG” (App. 15).
`
`
`Even if respondents, as alleged, failed to submit
`their pet food products to the FDA for its approval and
`thereby violated the FDCA as well as the CPG when
`they thereafter sold these pet products by prescription
`only, petitioners’ theory of liability “does not depend on
`
`
`
`

`

`13
`an interpretation of federal law, but rather whether
`these actions resulted in unlawful practice that violated
`the MMPA” (Id.).
`
`
`As for petitioners’ state antitrust claims under
`Mo. Rev. Stat. § 416.031.2, the district judge ruled that
`they “do not ask a court to determine if [respondents]
`violated the FDCA or the CPG but rather ask a court
`to determine if [respondents] did, in fact, agree to
`impose a prescription requirement on their products
`despite not submitting them to the FDA for analysis
`and approval” (App. 16) (emphasis supplied). This
`theory of liability requires petitioners
`
`actions,
`these
`through
`that,
`prove
`to
`[respondents] engaged in monopolistic behavior,
`attempted to monopolize, or conspired to
`monopolize the prescription pet food market. As
`such,
`[petitioners’] antitrust claims do not
`depend on an interpretation of federal law for
`their resolution.
`
`
`(Id.).
`
`
`Finally, the district court determined that under
`Missouri’s unjust enrichment law, all a judge or jury
`would evaluate is the monetary benefit reaped by
`respondents’ as the result of their conduct in charging a
`premium price for their fake prescription pet food in
`the absence of approval by the FDA, not whether these
`actions violated the FDCA or the CPG themselves
`(App. 16-17 ). In short, it concluded that all of
`respondents’ actions alleged by petitioners in their
`complaint can be evaluated by reference to state law
`
`
`
`

`

`14
`only and these state-law claims therefore did not
`implicate significant federal issues (App. 17).
`
`
`jurisdiction based on
`federal
`Addressing
`diversity of citizenship, Judge Fenner ruled that
`respondents had not met their burden under the Class
`Action Fairness Act, 28 U.S.C. § 1332(c)(1) (“CAFA”)
`(App. 17-21). Both Royal Canin and Purina are citizens
`of Missouri, as are petitioners, and there is no minimal
`diversity (Id.). Moreover, Royal Canin could not rely on
`its dual citizenship to create this minimal diversity
`(Id.). Because
`it
`lacked both subject-matter and
`diversity jurisdiction, the district court ordered the
`case be remanded to the Circuit Court of Jackson
`County, Missouri, for further proceedings (App. 21).
`
`
`The court of appeals granted respondents’
`petition for appellate review under 28 U.S.C. §
`1453(c)(1), limiting its examination to the issue of
`federal question jurisdiction (App. 3). On March 13,
`2020, the Panel, speaking through Erickson, J., vacated
`the district judge’s order and remanded the case to the
`federal district court (App. 1-7). According to the court
`of appeals, petitioners “rel[ied] explicitly on federal law
`throughout their pleadings,” alleging that respondents’
`“conduct amounted to a joint and coordinated violation
`of the...FDCA and the FDA’s regulatory guidance in
`the...CPG” (App. 3;4).
`
`
`First, following Merrell Dow Pharm. Inc. v.
`Thompson, 478 U.S. 804 (1986), which forecloses
`removal of state-law claims that merely include a
`violation of federal law as an element of the offense, the
`Panel ruled that petitioners’ claim under the MMPA
`might not depend on federal law if respondents’ failure
`
`
`
`

`

`15
`to submit its prescription pet food to the FDA for
`approval could be sufficient to prove deception under
`the MMPA (App. 4-5).
`
`
`Second, however, it concluded that petitioners
`“elected to premise” their antitrust and unjust
`enrichment claims against respondents “on violations
`and
`interpretations of
`federal
`law;” and
`their
`“dependence on federal law permeates the allegations
`such that [these two claims] cannot be adjudicated
`without reliance on and explication of federal law”
`(App. 5-6). Thus it ruled that petitioners’ complaint
`gives rise to federal question jurisdiction and their
`“isolated focus on their alleged state law claims is
`nothing more than an apparent veil to avoid federal
`jurisdiction” (App. 6). Moreover, it determined that
`petitioners’ prayers for injunctive and declaratory
`relief in their complaint invoke federal jurisdiction
`because they necessarily require interpretation and
`application of federal law (Id.).
`
`
`On April 16, 2020, the court of appeals denied
`petitioners’ timely filed petition for Panel rehearing or
`for rehearing en banc (App. 23).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`16
`REASONS FOR GRANTING THE PETITION
`
`
`By Ruling That Petitioners’ Class Action Seeking
`To Hold Respondents Liable Under Missouri Law
`For Their Marketing Of Fake Prescription Pet
`Food Must Be Brought In Federal Court Instead Of
`Missouri Courts, The Court Of Appeals Has
`Introduced Chaos Into This Court’s Coherent
`Jurisprudence About When Federal Question
`Jurisdiction Will Lie Over State-Law Claims.
`
`
`about
`allegations
`petitioners’
`of
`None
`fake prescription pet
`food scheme
`respondents’
`implicates the FDCA, requires an interpretation of the
`FDA’s regulations, or even
`invokes the FDA’s
`Compliance Policy Guide so as to create a substantial or
`even disputed federal issue for resolution. Instead,
`petitioners’ theories of liability are straightforward, i.e.,
`that respondents violated the MMPA by deceiving
`consumers that their pet products complied with FDA
`regulations when they admittedly didn’t; they violated
`Missouri antitrust law by agreeing among themselves
`and with others to use a prescription requirement on
`their pet products admittedly without seeking FDA
`approval; and in pursuing this scheme, they reaped a
`monetary benefit that can be measured and awarded
`under Missouri’s unjust enrichment law.
`
`
`While petitioners’ theories of liability may
`require an interpretation of the MMPA, Missouri
`antitrust law, or Missouri’s law of unjust enrichment to
`succeed, none requires as elements of its success the
`interpretation or violation of any federal law. That
`respondents admittedly failed to seek FDA approval of
`their fake prescription pet food is not an element of any
`
`
`
`

`

`17
`of petitioners’ causes of action under Missouri law but
`merely an antecedent circumstance that
`led to
`respondents’ later deceptive and monopolistic conduct
`under state law when they nonetheless marketed their
`products as having obtained that approval. Neither the
`FDCA nor the FDA has any causative nexus with
`respondents’ actionable conduct under Missouri law;
`and nothing
`in petitioners’ proof would call
`into
`question the interpretation or enforcement of this
`federal law.
`
`
`implicates
`these claims
`Because none of
`substantial or disputed federal law, the court of appeals
`decision to the contrary upends the careful and
`coherent jurisprudence this Court has developed over
`the years in order to determine when federal question
`jurisdiction will lie over state-law claims. The issue of
`whether federal subject matter jurisdiction exists to
`hear state suits such as this one challenging the
`marketing of fake prescription pet products has
`important, recurring nationwide consequences. This
`Court should grant certiorari to decide this important
`issue of federal question jurisdiction, reaffirm its
`coherent jurisprudence about when federal jurisdiction
`will lie over state-law claims such as this, and then
`apply that jurisprudence to conclude petitioners’ class
`action against respondents should be remanded to the
`Missouri state courts for further proceedings.
`
`
`The analysis of whether petitioners’ claims
`belong in state or federal court begins with this Court’s
`“well-pleaded complaint” rule that “as a practical
`matter, severely limits the number of cases in which
`state law ‘creates the cause of action’ that may be
`initiated in or removed to federal district court....”
`
`
`
`

`

`18
`Franchise Tax. Bd. of Cal. v. Constr. Laborers Vacation
`Trust, 463 U.S. 1, 9-10 (1983). It provides that federal
`question jurisdiction under 28 U.S.C. § 1331 exists only
`when such a question is presented on the face of the
`plaintiff’s properly pleaded complaint. Rivet v. Regions
`Bank of La., 522 U.S. 470, 475 (1998) (citation omitted).
`The rule “makes the plaintiff[s] the master of [their]
`claim” because in drafting the complaint, they may
`“avoid federal jurisdiction by exclusive reliance on state
`law.” Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 &
`n. 7 (1987). See also Merrell Dow Pharm. Inc. v.
`Thompson, 478 U.S. 804, 809 n. 6 (1986) (“Jurisdiction
`may not be sustained on a theory that the plaintiff has
`not advanced.”) (emphasis supplied).
`
`
`
`In their state court complaint, petitioners
`alleged
`that
`respondents marketed
`their
`fake
`prescription pet food so that consumers like them
`would pay significantly more than they would for non-
`prescription pet food. As part of their scheme, it was
`alleged that respondents knew that a prescription
`requirement fostered a reasonable belief by consumers
`that such products were intended to treat specific
`health problems of pets; that they contained medicine of
`some kind; that some sort of regulatory oversight by,
`for example, the FDA was involved; and that their
`purchase was akin to the purchase of prescription drugs
`from a pharmacy. Thus by requiring a veterinarian’s
`prescription to buy this pet food, it was alleged that
`respondents misled petitioners into believing they were
`purchasing an actual prescription product when, in fact,
`they were not.
`
`
`As petitio