multi district litigation, which is invariably time consuming as it is, will grind to a standstill while transferee judges read separate briefs, each based on the case law of a transferor circuit, on a single issue of federal law." In re Integrated Resources Real Estate Ltd. Partnerships Secs. Litig., 815 F. Supp. 620, 635-36 (S.D.N.Y. 1993) (quoting Pan Am, 950 F.2d at 847).
Van Dusen is, therefore, inapposite. The law of the Second Circuit will be applied here where the circuits are in conflict, to avoid potential conflicts in interpretation and to uphold the efficiency sought by 28 U.S.C. § 1407.
II. Federal Question Jurisdiction Exists
A federal court has jurisdiction to hear "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28, 77 L. Ed. 2d 420, 103 S. Ct. 2841 (1983); see Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 758 (2d Cir. 1986) (citing Franchise Tax Bd., 463 U.S. at 1; Gully v. First Nat'l Bank, 299 U.S. 109, 81 L. Ed. 70, 57 S. Ct. 96; Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908)). Such a cause of action exists here, and, as a result, removal can be based on federal question jurisdiction.
Removal jurisdiction must be strictly construed, both because the federal courts are courts of limited jurisdiction and because removal of a case implicates significant federalism concerns. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 85 L. Ed. 1214, 61 S. Ct. 868 (1941) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined."). Thus, the burden lies with Defendants here to establish a valid basis for federal removal jurisdiction. See. e.g., B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The Court must construe all disputed questions of fact and controlling substantive law in favor of the plaintiff. Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983); B., Inc. at 545.
Plaintiff is the "master of his complaint," Caterpillar Inc. v. Williams, 482 U.S. 386, 96 L. Ed. 2d 318, 107 S. Ct. 2425 (1987); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913); Travelers Indem. Co., 794 F.2d at 758 (citing The Fair, 228 U.S. at 25), and "'where plaintiff's claim involves both a federal ground and a state ground, the plaintiff is free to ignore the federal question and pitch his claim on the state ground' to defeat removal." Traveler's Indem., 794 F.2d at 758 (quoting 1A J. Moore & B. Ringle, Moore's Federal Practice P 0.160, at 185 (2d ed. 1979)). Indeed, "he or she may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392.
One exception to this otherwise inviolable rule, the "artful pleading doctrine", provides that courts "will not permit [a] plaintiff to use artful pleading to close off [a] defendant's right to a federal forum . . . [and] the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiffs' characterization." Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 n.2, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981); see also Travelers Indem. Co., 794 F.2d at 758 ("a plaintiff may not defeat removal by clothing a federal claim in state garb").
State claims have been deemed to be well-disguised federal claims, and the artful pleading doctrine invoked, where "the elements of the claim are virtually identical to those of a claim expressly grounded on federal law," Id. at 760; see also Ultramar Amer. Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990); Four Way Plant Farm v. NCCI, 894 F. Supp. 1538. Here, the Tisdale Complaint substantially mimics the language of the In re NASDAQ Refiled Consolidated Complaint. The facts on which the two complaints rest are nearly entirely the same, and the Alabama state statute makes illegal essentially the same acts prohibited by the federal antitrust laws.
Precisely this situation was confronted in In re Wiring Device Antitrust Litig., 498 F. Supp. 79 (E.D.N.Y. 1980). There, a government indictment and more than thirty private cases alleging the same price-fixing scheme were brought in the federal courts and consolidated. The subsequent filing of a state court action based on the same alleged facts resulted in removal to federal court by the JPML. Defendants had no special relationship to South Carolina, none of the defendants was incorporated in South Carolina, and none of the defendants had headquarters in South Carolina. Wiring Devices, 498 F. Supp. at 82, 85. The sole connection between the defendants and South Carolina was that small amounts of the defendants' products were imported into the state. The Honorable Jack Weinstein held that these facts implicated interstate commerce and that the complaint was, therefore, federal in nature. Id. Judge Weinstein noted that the complaint was "identical in all particulars to those which have previously been asserted against these same defendants in a federal indictment and in more than thirty civil class action suits brought by direct purchasers." Id. at 82. The Wiring Devices court denied the plaintiffs' motion to remand, holding that:
since it is unquestioned that defendant here is engaged in interstate commerce and that the products whose prices are the subject of this action were manufactured outside South Carolina and shipped there for sale, and since South Carolina has itself limited the application of its state antitrust statutes to intrastate commerce, the true nature of plaintiffs' complaint is federal.
Id. at 83.
Wiring Devices is exceedingly similar to the case at bar. In both cases, the plaintiffs had filed numerous class actions in federal district courts throughout the country referred to the JPML for consolidation. After consolidation, a class action complaint was filed in a state court alleging a national conspiracy identical to that alleged in the existing federal action, but alleging only state law violations. Similarly, as in that case, here the Alabama state courts have deemed the Alabama antitrust statutes upon which the Complaint is based to regulate only intrastate commerce. In Georgia Fruit Exch. v. Turnipseed, 9 Ala. App. 123, 62 So. 542 (Ala. Ct. App. 1913), the Alabama Court of Appeals held that "there being thus both a state and national law prohibiting unlawful combinations in restraint of trade -- the one law relat[es] to intrastate, the other to interstate, commerce . . . ." Id. at 546. In Ex parte Rice, 259 Ala. 570, 67 So. 2d 825 (Ala. 1953), the Supreme Court of Alabama held that:
The federal statutes, Sherman and Clayton Acts, prescribe the terms of unlawful monopolies and restraints of trade as they should also be administered in Alabama. The question, therefore, is properly affected by those acts, and its must be controlled by them when the business involved in the suit affects interstate commerce.