throbber
No. 20-152
`
`IN THE
`Supreme Court of the United States
`————
`ANASTASIA WULLSCHLEGER AND GERALDINE BREWER,
`Petitioners,
`
`v.
`
`ROYAL CANIN U.S.A., INC. AND
`NESTLÉ PURINA PETCARE COMPANY,
`Respondents.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Eighth Circuit
`————
`BRIEF IN OPPOSITION TO
`PETITION FOR A WRIT OF CERTIORARI
`————
`
`JOHN E. SCHMIDTLEIN
`BENJAMIN M. GREENBLUM
`SUSANNA R. ALLEN
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, NW
`Washington, DC 20005
`(202) 434-5000
`Counsel for Respondent
`Royal Canin U.S.A., Inc.
`
`CHRISTOPHER M. CURRAN
`Counsel of Record
`J. FRANK HOGUE
`WHITE & CASE LLP
`701 Thirteenth Street, NW
`Washington, DC 20005
`(202) 626-3600
`ccurran@whitecase.com
`
`BRYAN A. MERRYMAN
`CATHERINE S. SIMONSEN
`WHITE & CASE LLP
`555 South Flower Street,
`Suite 2700
`Los Angeles, CA 90071
`(213) 620-7700
`Counsel for Respondent
`Nestlé Purina
`PetCare Company
`
`September 14, 2020
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`

`
`
`i
`QUESTION PRESENTED
`Whether the Eighth Circuit misapplied this
`Court’s settled jurisprudence in finding federal-
`question subject-matter jurisdiction over this action,
`where the Eighth Circuit found that (i) Petitioners’
`“dependence
`on
`federal
`law permeates
`the
`[complaint’s] allegations such
`that
`[certain of
`Petitioners’ state-law claims] cannot be adjudicated
`without reliance on and explication of federal law”
`and (ii) Petitioners’ “prayer for relief . . . seeks
`injunctive and declaratory relief that necessarily
`requires the interpretation and application of federal
`law.”
`
`
`
`
`
`

`

`
`
`ii
`RULE 29.6 DISCLOSURE STATEMENT
`Nestlé Purina PetCare Company
`(“Purina”)
`certifies that
`it
`is
`indirectly a wholly owned
`subsidiary of Nestlé S.A., a Swiss corporation traded
`publicly on the SIX Swiss Exchange and in the
`United States in the form of American Depository
`Receipts. No publicly held company owns 10% or
`more of Nestlé S.A.’s stock.
`Royal Canin U.S.A., Inc. (“Royal Canin”) certifies
`that it is a wholly owned subsidiary of Mars, Inc., a
`privately held corporate entity that has no parent
`company. No publicly held company owns 10% or
`more of Mars, Inc.’s stock.
`
`
`
`
`
`
`
`
`
`

`

`
`
`iii
`
`
`TABLE OF CONTENTS
`
`Page
`QUESTION PRESENTED .......................................... i
`RULE 29.6 DISCLOSURE STATEMENT ................. ii
`STATEMENT .............................................................. 1
`REASONS FOR DENYING THE PETITION ........... 7
`I. The Petition Presents No Circuit Split or
`Other Compelling Reason for Granting
`Certiorari .......................................................... 7
`II. The Eighth Circuit Properly Applied
`Settled Law to the Facts Alleged in
`Petitioners’ Complaint ................................... 10
`A. The Eighth Circuit Correctly Held that
`Petitioners’ Claims Necessarily Raise
`Substantial, Disputed Federal Issues
`that Are Appropriately Adjudicated in a
`Federal Forum ........................................... 10
`B. As the Eighth Circuit Found, the
`Complaint’s Prayer for Relief Provides
`an Independent Basis for Jurisdiction
`Because It Seeks a Declaration and
`Injunction Arising Directly Under
`Federal Law ............................................... 12
`CONCLUSION ......................................................... 13
`
`
`
`
`
`

`

`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Alden v. Maine,
`527 U.S. 706 (1999) ............................................ 8, 9
`Caterpillar, Inc. v. Williams,
`482 U.S. 386 (1987) .......................................... 8, 11
`Cnty. of St. Charles v. Mo. Family
`Health Council,
`107 F.3d 682 (8th Cir. 1997) ................................ 13
`Erie R.R. v. Tompkins,
`304 U.S. 64 (1938) .................................................. 8
`Grable & Sons Metal Prods., Inc. v.
`Darue Eng’g & Mfg.,
`545 U.S. 308 (2005) ............................................ 2, 9
`Gunn v. Minton,
`568 U.S. 251 (2013) ...................................... 6, 8, 10
`Merrell Dow Pharms., Inc. v. Thompson,
`478 U.S. 804 (1986) ................................................ 5
`Mitskovski v. Buffalo & Fort Erie Pub.
`Bridge Auth.,
`435 F.3d 127 (2d Cir. 2006) .................................. 13
`CONSTITUTIONAL PROVISIONS
`U.S. Const. art. III, § 2 ................................................ 9
`
`
`
`

`

`
`
`v
`
`STATUTES AND RULES
`Food, Drug, & Cosmetic Act, 21 U.S.C.
`§ 301 et seq. ...................................................passim
`Missouri Merchandising Practices Act,
`Mo. Rev. Stat. § 407.20 et seq. ................. 3, 4, 8, 11
`Mo. Rev. Stat. § 416.031 ............................................ 11
`Sup. Ct. R. 10 ........................................................... 1, 7
`
`
`
`
`
`

`

`
`
`1
`BRIEF FOR RESPONDENTS IN OPPOSITION
`_______
`
`STATEMENT
`Petitioners, plaintiffs below, contend that the
`Eighth Circuit misapplied settled law in determining
`that the face of their complaint gives rise to federal-
`question
`subject-matter
`jurisdiction.
` While
`Petitioners thus disagree with the Eighth Circuit’s
`conclusion, the decision below is an unremarkable
`application of the settled law of this Court and
`presents no reason — much less a compelling one —
` for granting certiorari.
`The Petition does not contend that this case
`creates, extends, or implicates any conflict among the
`circuits. Nor does the Petition contend that the
`supposed error by the Eighth Circuit is common or
`likely to recur. Instead, the Petition presents merely
`an asserted error in the application of properly stated
`rules of law. As such, the Petition falls squarely into
`a category of petitions for certiorari disfavored under
`Rule 10 of this Court’s Rules.
`Furthermore, the Petition’s assertions of error are
`incorrect.
` In determining that federal-question
`jurisdiction lies over Petitioners’ state-law claims, the
`Eighth Circuit correctly applied
`this Court’s
`precedents. The crux of Petitioners’ complaint is that
`Respondents, defendants below, supposedly violated
`the federal Food, Drug & Cosmetic Act (“FDCA”) and
`the FDA’s associated regulatory guidance in its
`Compliance Policy Guide (“CPG”). According to the
`complaint, these violations of federal law allegedly
`
`
`
`

`

`2
`
`
`and
`deceptive
`products
`make Respondents’
`supposedly motivated Respondents to
`form an
`antitrust
`conspiracy
`to
`conceal
`their alleged
`violations of the FDCA. In addition to alleging
`violations of federal law to support each of their
`state-law claims, Petitioners expressly seek a
`declaration that Respondents are violating federal
`law and an injunction preventing Respondents from
`continuing to violate federal law.
`interpreted the
`The Eighth Circuit properly
`complaint to hold that Petitioners’ “state-law claim[s]
`necessarily raise a stated federal issue, actually
`disputed and substantial, which a federal forum may
`entertain without disturbing any congressionally
`approved balance of federal and state
`judicial
`responsibilities.” Grable & Sons Metal Prods., Inc. v.
`Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005); Pet.
`App. 6a.
`1.
` Respondents Royal Canin and Purina
`manufacture and sell certain therapeutic pet foods
`that they require to be sold only by prescription
`issued by a veterinarian. Pet. App. 25a-26a, ¶ 1; Pet.
`App. 29a-31a, ¶¶ 11-12, 14. These therapeutic pet
`foods are formulated for a variety of specific health
`issues, and may not be well tolerated by all pets. Pet.
`App. 47a-48a, ¶ 57. To purchase this pet food, a
`purchaser must
`first consult with his or her
`veterinarian and obtain authorization from the
`veterinarian. Pet. App. 25a-26a, ¶ 1. The consumer
`may then purchase the food directly from his or her
`veterinarian, at a retail store, or online. Pet. App.
`
`
`
`

`

`3
`
`
`41a, ¶ 37. Prescription pet food has been sold to
`consumers since the 1960s. Pet. App. 34a-35a, ¶ 23.
`2. Petitioners allege that Royal Canin and Purina
`(and their alleged co-conspirators, who are not named
`as defendants), through their sale of prescription pet
`food, have violated the FDCA, 21 U.S.C. §§ 321, 352,
`360, and the FDA’s regulatory guidance in the CPG.
`See Pet. App. 46a-59a, ¶¶ 55-74. Petitioners attempt
`to package their claims under state law, and assert
`six causes of action: violation of the Missouri
`Antitrust Law (Counts I-II), violation of the Missouri
`Merchandising Practices Act (“MMPA”) (Counts III-
`IV), and common-law unjust enrichment (Counts V-
`VI). Pet. App. 71a-81a, ¶¶ 101-134.
`As to the antitrust claims, Petitioners allege that
`Royal Canin and Purina must be engaged in an
`antitrust conspiracy because their alleged violations
`of the FDCA are otherwise “contrary to the
`independent economic self-interest of each of them.”
`Pet. App. 58a, ¶ 73. The complaint contends that
`Royal Canin, Purina, and the alleged co-conspirators
`are “clearly not in compliance” with the FDA’s CPG
`conditions under which FDA staff has discretion to
`withhold enforcement. Pet. App. 50a-51a, ¶¶ 62-63;
`Pet. App. 55a, ¶ 71. The complaint alleges: “In view
`of the Draft CPG and their non-compliance with the
`FD&C Act, Mars/Royal Canin, Purina, and Hill’s
`were confronted with the choice of whether to
`continue marketing their Prescription Pet Food in
`violation of federal and state law, or to eliminate the
`prescription requirement and otherwise comply with
`law.” Pet. App. 52a, ¶ 65. It concludes: “That all
`
`
`
`

`

`4
`
`
`three manufacturers decided to violate the Draft CPG
`and FD&C Act in the same way is explicable only as
`the result of a collective decision or agreement.” Pet.
`App. 59a, ¶ 74.
`Petitioners point to Royal Canin’s and Purina’s
`alleged violations of the FDCA and the CPG as the
`basis
`for
`the
`claimed
`deception
`and
`misrepresentation under the MMPA. Petitioners
`allege that, under the CPG, Royal Canin’s and
`Purina’s products “met the definition of drugs and
`food under the FD&C Act,” but do not comport with
`applicable FDCA requirements, meaning they are
`“unsafe,” “adulterated,” and “misbranded” in violation
`of the FDCA.
` Pet. App. 48a-49a, ¶¶ 58-59.
`Additionally, the complaint alleges that Royal Canin
`and Purina make “disease treatment claims,” but
`that their products lack review and approval by the
`FDA and do not comply with other FDCA
`requirements. Pet. App. 26a, ¶ 2; Pet. App. 47a-49a,
`¶¶ 57-59. Based on these supposed violations of
`federal law, Petitioners allege that the marketing and
`sale of those products is deceptive and misleading.
`See, e.g., Pet. App. 26a, ¶ 2; Pet. App. 41a-43a, ¶¶ 39-
`40, 44; Pet. App. 47a-49a, ¶¶ 57-59; Pet. App. 54a-
`55a, ¶¶ 70-71; Pet. App. 75a, ¶ 114; Pet. App. 77a,
`¶ 120. Petitioners’ unjust enrichment claims are
`based on the same alleged violations of federal law
`and guidance. See Pet. App. 26a, ¶ 2; Pet. App. 46a-
`49a, ¶¶ 55-59; Pet. App. 54a-55a, ¶ 70; Pet. App. 79a,
`¶ 126; Pet. App. 80a, ¶ 131.
`In their prayer for relief, Petitioners ask for a
`determination “that Defendants have engaged in the
`
`
`
`

`

`5
`
`
`violations of law alleged in this [complaint]” (Pet.
`App. 81a-82a, ¶ 136), namely, the alleged violations
`of the FDCA and the CPG (see Pet. App. 46a-59a,
`¶¶ 55-74). Petitioners also seek to enjoin Royal
`Canin and Purina from “engaging in further such
`violations of law.” Pet. App. 82a, ¶ 137. Petitioners
`then expressly request orders and a
`judgment
`“[e]stopping Defendants from denying Prescription
`Pet Food is a ‘drug’ and enjoining Defendants to
`comply with all federal and Missouri provisions
`applicable to the manufacture of such drugs.” Pet.
`App. 82a, ¶ 138 (emphasis added).
`3. A three-judge panel of the Eighth Circuit
`unanimously held that Petitioners’ complaint “alleged
`that defendants’ conduct amounted to a joint and
`coordinated violation of the Food Drug and Cosmetic
`Act (FDCA) and the FDA’s regulatory guidance in the
`Compliance Policy Guide (CPG)” and that Petitioners’
`“dependence
`on
`federal
`law permeates
`the
`allegations” such that their claims “cannot be
`adjudicated without reliance on and explication of
`federal law.” Pet. App. 3a, 5a-6a.
`The court acknowledged
`that Merrell Dow
`Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804
`(1986), “forecloses the removal of state law claims
`that merely include a violation of federal law as an
`element of the offense, without other reliance on
`federal law,” but distinguished Petitioners’ claims as
`going well beyond the claims at issue in Merrell Dow
`and
`being
`fundamentally
`“premise[d] . . . on
`violations and interpretations of federal law.” Pet.
`App. 4a, 5a.
` For example, “[a]s evidence of
`
`
`
`

`

`6
`
`
`coordination and conspiracy, plaintiffs explicitly
`claim that defendants violated the FDCA, were non-
`compliant with FDA guidance, and that their refusal
`to submit the prescription pet food to FDA review
`was improper.” Pet. App. 5a. Accordingly, the court
`held, Petitioners’ claims arise under federal law. Pet.
`App. 6a (citing Gunn v. Minton, 568 U.S. 251, 258
`(2013)).
`The Eighth Circuit further held that:
`plaintiffs’ prayer for relief invokes federal
`jurisdiction because it seeks injunctive and
`declaratory relief that necessarily requires the
`interpretation and application of federal law.
`After alleging violations of
`the FDCA
`throughout the complaint, plaintiffs request
`judgment:
`(1)
`“[f]inding, adjudging, and
`decreeing” that defendants have violated
`federal law; (2) enjoining defendants from
`engaging in further violations of federal law;
`and (3) estopping defendants from denying
`that prescription pet food is a “drug” and
`“enjoining Defendants to comply with all
`federal and Missouri provisions applicable to
`the manufacture of such drugs. . . .”
`Pet. App. 6a (alteration in original) (quoting Pet. App.
`81a-82a, ¶¶ 136-138). The court rejected Petitioners’
`arguments against
`federal-question
`jurisdiction,
`stating: “plaintiffs’ isolated focus on their alleged
`state law claims is nothing more than an apparent
`veil to avoid federal jurisdiction.” Id. The Eighth
`Circuit subsequently denied Petitioners’ petition for
`rehearing or rehearing en banc. Pet. App. 23a.
`
`
`

`

`
`
`7
`
`REASONS FOR DENYING THE PETITION
`I.
`The Petition Presents No Circuit Split or
`Other Compelling Reason for Granting
`Certiorari
`Petitioners do not contend the Eighth Circuit’s
`decision conflicts with the decision of another court of
`appeals. Nor do they claim the Eighth Circuit
`decided an important federal question in a way that
`conflicts with a decision by a state court of last resort,
`or seriously departed from the accepted and usual
`course of judicial proceedings. Petitioners also do not
`argue the Eighth Circuit decided an important, but
`unsettled, question of federal law. To the contrary,
`Petitioners characterize this Court’s arising-under
`jurisprudence, applied by the Eighth Circuit below,
`as “coherent” (Pet. 16, 17, 22, 29).
` Instead,
`Petitioners ask this Court to correct the Eighth
`Circuit’s supposed “misapplication of a properly
`stated rule of law.” Sup. Ct. R. 10. Setting aside that
`the Eighth Circuit properly decided the issue of
`federal subject-matter
`jurisdiction by
`faithfully
`applying this Court’s precedents, see infra Section II,
`this is not the “rare[]” case where such an alleged
`error warrants certiorari review. Sup. Ct. R. 10.
`Petitioners are incorrect in their assertion that
`the Eighth Circuit decided an important federal
`question in a way that conflicts with relevant
`decisions of this Court. See Pet. 17, 29. As explained
`below, it is Petitioners who chose to inject federal
`issues into this case by premising their state-law
`claims and their requested relief on supposed
`violations of federal law. The federal issues are
`
`
`

`

`8
`
`
`present on the face of Petitioners’ complaint and are
`not merely pleaded in anticipation of a federal
`defense. Consequently, the Eight Circuit’s opinion is
`fully consistent with Caterpillar, Inc. v. Williams, 482
`U.S. 386 (1987).
`Petitioners are also incorrect in asserting that the
`Eighth Circuit misapplied Merrell Dow and its
`progeny, Grable and Gunn. See Pet. 29. Indeed, the
`Eighth Circuit expressly considered Merrell Dow’s
`applicability
`in acknowledging that Petitioners’
`MMPA claims standing alone “might not depend on
`federal law if the defendants’ failure to submit the
`prescription pet food for FDA review arguably could
`be sufficient to prove deception under the MMPA.”
`Pet. App. 4a.
` The court correctly recognized,
`however, that the “case consists of more than the
`MMPA claims” and determined that Petitioners’
`antitrust and unjust enrichment claims “cannot be
`adjudicated without reliance on and explication of
`federal law.” Pet. App. 5a-6a. The Eighth Circuit
`also cautioned that “plaintiffs’ isolated focus on their
`alleged state law claims” — to the exclusion of their
`prayer for relief — “is nothing more than an apparent
`veil to avoid federal jurisdiction.” Pet. App. 6a.
`Petitioners cite Erie Railroad v. Tompkins, 304
`U.S. 64 (1938), and Alden v. Maine, 527 U.S. 706
`(1999), for the proposition that the Eighth Circuit’s
`decision “[dis]respect[s]” the “judicial independence”
`of states and “undermines” the principle that “federal
`courts are courts of limited jurisdiction.” Pet. 29-30.
`But Erie and Alden make clear that “[s]upervision
`over either the legislative or the judicial action of the
`
`
`
`

`

`9
`
`
`States is in no case permissible except as to matters
`by the Constitution specifically authorized or
`delegated to the United States.” Alden, 527 U.S. at
`754 (emphasis added) (quoting Erie, 304 U.S. at 79).
`Here, no federal court has purported to supervise
`state judicial action, and the Constitution expressly
`grants federal courts jurisdiction over claims, like
`Petitioners’, that arise under federal law. U.S. Const.
`art. III, § 2.
`the Eighth
`characterization of
`Petitioners’
`Circuit’s straightforward application of this Court’s
`precedent
`to
`the
`complaint’s allegations as
`introducing “chaos” (Pet. 16, 29) also has no support.
`As an initial matter, there is no “single, precise, all-
`embracing test for jurisdiction over federal issues
`embedded in state-law claims between nondiverse
`parties.” Grable, 545 U.S. at 314 (citation omitted).
`Whether a particular state-law claim gives rise to
`federal-question jurisdiction depends on the specific
`allegations set forth in a plaintiff’s complaint, thus
`substantially cabining the capacity of any one case to
`introduce “chaos” or inadvertently “federalize an
`entire category of cases” (Pet. 28, 29).
` What
`Petitioners call “chaos” could at most be an (asserted)
`one-time error by a court of appeals in the application
`of settled law — a type of error that this Court
`generally does not invoke its discretion to address. In
`any event, there is no error: no court or commentator
`has expressed any concern with the unanimous
`panel’s opinion, which represents a straightforward
`application of this Court’s precedents to a complaint
`“permeate[d]” by allegations of federal-law violations
`and that expressly seeks equitable relief under
`
`
`
`

`

`10
`
`
`federal law. Pet. App. 5a. There is no “chaos” to rein
`in or conflict with this Court’s precedents to correct.
`II.
`The Eighth Circuit Properly Applied
`Settled Law to the Facts Alleged
`in
`Petitioners’ Complaint
`The Eighth Circuit properly applied this Court’s
`arising-under
`federal-question
`subject-matter
`jurisdiction test set forth in Merrell Dow and
`explained in Gunn and Grable to the allegations on
`the face of Petitioners’ complaint, in determining that
`the complaint necessarily raises substantial, disputed
`federal issues (both in its state-law claims and in its
`prayer for relief) and that exercising jurisdiction
`would not upset any congressionally approved
`division of judicial labor between state and federal
`courts.
`A. The Eighth Circuit Correctly Held that
`Petitioners’ Claims Necessarily Raise
`Substantial, Disputed Federal Issues that
`Are Appropriately Adjudicated in a Federal
`Forum
`The Eighth Circuit correctly held that “plaintiffs
`rely explicitly on federal
`law throughout their
`pleadings.” Pet. App. 4a. Petitioners’ antitrust and
`unjust enrichment claims are “premise[d] . . . on
`violations and interpretations of federal law” to
`establish the existence of the alleged conspiracy. Pet.
`App. 5a; see Pet. App. 26a, ¶ 2; Pet. App. 46a-49a,
`¶¶ 55-59; Pet. App. 50a-53a, ¶¶ 62-65; Pet. App. 54a-
`55a, ¶¶ 70-71; Pet. App. 58a-59a, ¶¶ 73-74; Pet. App.
`73a-74a, ¶ 108; Pet. App. 79a, ¶ 126; Pet. App. 80a,
`
`
`
`

`

`11
`
`
` Similarly, Petitioners allege that the
`¶ 131.
`marketing and sale of Respondents’ products is
`deceptive and misleading in violation of the MMPA
`because Respondents allegedly violated the FDCA
`and CPG guidance. See Pet. App. 26a, ¶ 2; Pet. App.
`41a-43a, ¶¶ 39-40, 44; Pet. App. 47a-49a, ¶¶ 57-59;
`Pet. App. 54a-55a, ¶¶ 70-71; Pet. App. 75a, ¶ 114;
`Pet. App. 77a, ¶ 120. If that were not enough,
`“plaintiffs’ prayer
`for
`relief
`invokes
`federal
`jurisdiction because
`it
`seeks
`injunctive and
`declaratory relief that necessarily requires the
`interpretation and application of federal law.” Pet.
`App. 6a; see Pet. App. 81a-82a, ¶¶ 136-38.
`Petitioners characterize
`their allegations as
`merely “anticipating an affirmative defense based on
`federal law.” Pet. 20. Coordination and conspiracy,
`however, are in no sense affirmative defenses. See
`Mo. Rev. Stat. § 416.031. Accordingly, the rule set
`forth in Caterpillar, that “a defendant cannot, merely
`by injecting a federal question into an action that
`asserts what is plainly a state-law claim, transform
`the action into one arising under federal law,” 482
`U.S. at 399 (emphasis omitted), simply does not
`apply. See Pet. 20-21.
`Petitioners suggest that the Eighth Circuit’s
`finding of federal-question jurisdiction rested solely
`on the allegation that Respondents “failed to seek
`FDA approval” of their prescription pet food. Pet. 16,
`22; see also id. at 26, 27. But as discussed, the
`complaint alleges numerous violations of the FDCA
`and CPG beyond this alleged omission — as the
`Eighth Circuit expressly acknowledged. See Pet.
`
`
`
`

`

`12
`
`
`App. 4a-5a; Pet. App. 49a, ¶ 59; Pet. App. 50a-51a,
`¶¶ 62-63; Pet. App. 52a-53a, ¶ 65; Pet. App. 54a, ¶ 69;
`Pet. App. 54a-55a, ¶ 70-71; Pet. App. 58a-59a, ¶ 73.
`Petitioners misstate the record in asserting that
`Respondents have “admitted[]” to a violation of the
`FDCA (Pet. 16; see id. at 18-19, 22, 26, 27) — a
`contention for which Petitioners cite nothing. In any
`event,
`the existence of any FDA approval
`requirement applicable to Respondents’ pet food can
`be determined only by interpreting federal food and
`drug law. Petitioners effectively admit as much by
`engaging in their own interpretation of federal law in
`their Petition. See Pet. 27-28. Petitioners’ state-law
`claims are not mere allegations of “antecedent
`circumstance[s],” nor are they “just the backdrop”
`(Pet. 17, 28). Instead, as the Eighth Circuit found,
`the
`complaint’s dependence
`on
`federal
`law
`“permeates” Petitioners’ state-law claims. Pet. App.
`5a-6a.
`the
`the Eighth Circuit Found,
`B. As
`Complaint’s Prayer for Relief Provides an
`Independent Basis for Jurisdiction Because
`It Seeks a Declaration and Injunction
`Arising Directly Under Federal Law
`If there were any doubt that the complaint
`necessarily raises federal issues, it is laid to rest by
`Petitioners’ express
`request
`for
`“Orders and
`Judgment” “enjoining Defendants to comply with all
`federal . . . provisions applicable to the manufacture
`of . . . drugs” and “[f]inding, adjudging, and decreeing
`that Defendants have engaged in the violations of
`[such provisions of] law alleged in th[e] [complaint].”
`
`
`

`

`13
`
`
`Pet. App. 81a-82a, ¶¶ 136-38. The court cannot
`declare that Respondents have violated the FDCA
`and the CPG (“violations” that Petitioners repeatedly
`allege in the complaint), or enjoin Petitioners from
`further (alleged) violations, without interpreting that
`federal law and guidance and determining whether
`Respondents’ conduct violates it.
`Nowhere in Petitioners’ argument in the Petition
`do they so much as acknowledge — much
`less
`challenge — the Eighth Circuit’s holding that federal
`subject-matter
`jurisdiction
`independently exists
`based on Petitioners’ prayer for relief. See Pet. App.
`6a. This independent basis alone is sufficient to
`establish
`federal-question
`jurisdiction, and
`the
`Eighth Circuit properly so held, in accordance with
`the decisions of that circuit and other courts of
`appeals. See, e.g., Cnty. of St. Charles v. Mo. Family
`Health Council, 107 F.3d 682, 684 (8th Cir. 1997);
`Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth.,
`435 F.3d 127, 135 (2d Cir. 2006).
`CONCLUSION
`The Court should deny the Petition.
`Respectfully submitted,
`CHRISTOPHER M. CURRAN
`Counsel of Record
`J. FRANK HOGUE
`WHITE & CASE LLP
`701 Thirteenth Street, NW
`Washington, DC 20005
`(202) 626-3600
`
`
`
`

`

`
`
`
`September 14, 2020
`
`14
`
`ccurran@whitecase.com
`
`BRYAN A. MERRYMAN
`CATHERINE S. SIMONSEN
`WHITE & CASE LLP
`555 South Flower Street,
` Suite 2700
`Los Angeles, CA 90071
`(213) 620-7700
`
`Counsel for Respondent
`Nestlé Purina PetCare
`Company
`JOHN E. SCHMIDTLEIN
`BENJAMIN M. GREENBLUM
`SUSANNA R. ALLEN
`WILLIAMS & CONNOLLY LLP
`725 Twelfth Street, NW
`Washington, DC 20005
`(202) 434-5000
`
`Counsel for Respondent
`Royal Canin U.S.A., Inc.
`
`
`
`
`

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