Dunaway v. Purdue Pharma L.P., 391 F. Supp. 3d 802

Background

Plaintiffs sued opioid manufacturers/distributors and numerous others under Tennessee’s Drug Dealer Liability Act (TDDLA) alleging defendants knowingly distributed or facilitated distribution of opioids that entered the illegal market.
TDDLA liability depends on drugs being illegal under Tennessee law; plaintiffs alleged state-law violations and alternatively alleged violations of the federal Controlled Substances Act (CSA) as incorporated into state standards for licensed distributors.
Defendants (McKesson and others) removed the case to federal court asserting federal-question jurisdiction based on CSA-related allegations.
Plaintiffs moved to remand to state court; McKesson argued removal was proper and that not all defendants had to consent because some were unserved or nominal.
The court found federal issues were not necessarily raised or sufficiently substantial to confer federal jurisdiction and also held removal was procedurally defective because not all served defendants (notably Paul Haskins) consented.
The court remanded the case to state court, denied defendants’ stay motion, and declined to award plaintiffs’ attorney fees under 28 U.S.C. § 1447(c).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Federal-question jurisdiction	Plaintiffs pleaded CSA violations as one basis for defendant liability under TDDLA	McKesson: CSA violations necessarily and substantially raise federal questions supporting removal	Court: Federal issue is incidental/alternative and not sufficiently "necessarily raised" or "substantial"; no federal jurisdiction
Incorporation of federal law into state duty	Plaintiffs: Tennessee statutes and licensing provisions incorporate federal registration/CSA standards for distributors	Defendants: State law does not create the specific duty (e.g., to refuse suspicious orders) that would make CSA central	Court: State law independently supplies duties; CSA allegations are an alternative pathway and may be redundant of state obligations
Unanimous consent to removal	Plaintiffs: Removal requires consent of all served defendants; several did not consent	McKesson: Some defendants were unserved or nominal, so their consent not required	Court: At least one served defendant (Haskins) was not shown to be unserved or nominal; lack of unanimous consent independently requires remand
Attorney's fees for improper removal	Plaintiffs: Request fees under § 1447(c) because removal was improper	McKesson: Removal was fairly supportable given complex state/federal overlap	Court: Denied fees; removal was colorable and defendants reasonably relied on federal-jurisdiction arguments

Key Cases Cited

Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986) (holding that a claimed violation of a federal statute as an element of a state claim does not necessarily create federal-question jurisdiction)
Dominion Pathology Labs., P.C. v. Anthem Health Plans of Va., Inc., 111 F. Supp. 3d 731 (E.D. Va. 2015) (discussing when federal law must be resolved to decide state-law claims)
Mikulski v. Centerior Energy Corp., 501 F.3d 555 (6th Cir. 2007) (articulating substantiality factors for federal-question jurisdiction)
Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527 (6th Cir. 1999) (rule of unanimity for removal: all served defendants must join or consent)
Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238 (6th Cir. 1993) (standard for awarding fees on remand under § 1447(c))
Bartholomew v. Town of Collierville, 409 F.3d 684 (6th Cir. 2005) (denying fees where removal was fairly supportable)
Beasley v. Wells Fargo Bank, N.A., [citation="744 F. App'x 906"] (6th Cir. 2018) (defining nominal defendant in removal context)
Thermoset Corp. v. Building Materials Corp. of Am., 849 F.3d 1313 (11th Cir. 2017) (nominal-party doctrine discussion)
Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255 (3d Cir. 2013) (nominal-party concept and consent to removal)
Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002) (defining nominal defendants and consent requirement)
Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993) (nominal party standard: no reasonable basis for liability)
Farias v. Bexar Cty. Bd. of Trustees, 925 F.2d 866 (5th Cir. 1991) (non-removing party nominality and impossibility of establishing state-law cause of action)
New Mexico ex rel. Balderas v. Purdue Pharma L.P., 323 F. Supp. 3d 1242 (D.N.M. 2018) (remanding opioid claims where federal law was an alternative to state-law duties)