Hunter v. Philip Morris USA

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOLORES HUNTER; ESTATE OF 
BENJAMIN G. FRANCIS,
Plaintiffs-Appellants, No. 07-35916
v.
 DC No.
CV 07-0010 RRB
PHILIP MORRIS USA; ALTRIA
GROUP, INC.; THE ALASKA OPINION
COMMERCIAL COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 4, 2008
Anchorage, Alaska
Submission Vacated and Deferred October 29, 2008*
Resubmitted August 27, 2009
Filed September 28, 2009
Before: Dorothy W. Nelson, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Tashima
*Submission of this case was vacated and deferred pending the
Supreme Court’s decision in Altria Group, Inc. v. Good, 129 S. Ct. 538(2008).
13909
HUNTER v. PHILIP MORRIS USA 13913
COUNSEL
Don C. Bauermeister, Burke & Bauermeister, PLLC, Anchor-
age, Alaska, for the plaintiff-appellant.
John W. Phillips, Phillips Law Group, PLLC, Seattle, Wash-
ington, for the defendants-appellees.
OPINION
TASHIMA, Circuit Judge:
The question of the preemption of state law by federal
tobacco legislation has been addressed numerous times.
Today, we address the preemption issue in the context of the
doctrine of fraudulent joinder, which is invoked to achieve
diversity jurisdiction. We hold that the district court errone-
ously allowed the defendants-appellees to achieve diversity
jurisdiction by its incorrect finding that the plaintiffs-
appellants’ state law claims were preempted and constituted
fraudulent joinder. Because the district court should have
remanded the action to state court, we vacate the judgment
13914 HUNTER v. PHILIP MORRIS USA
and remand with instructions to remand the action to state
court. We have jurisdiction over the final judgment of the dis-
trict court pursuant to 28 U.S.C. § 1291.
BACKGROUND
Benjamin Francis, an Alaska resident and citizen, died at
age fifty-two from lung cancer. As Francis’ survivor and on
behalf of his estate, Dolores Hunter brought a wrongful death
lawsuit in Alaska state court against Philip Morris USA, a
Virginia corporation that produces, markets, and distributes
cigarettes; Altria Group, the parent company of Philip Morris
USA; and the Alaska Commercial Company (“ACC”), an
Alaska corporation that sells merchandise, including ciga-
rettes manufactured by Philip Morris, in stores throughout
Alaska (all three Appellees are collectively referred to as
“Appellees”).
Hunter alleged that Francis’ death resulted from defective
products sold by Appellees. Hunter’s complaint included
claims of: (I) fraud and misrepresentation, (II) products liabil-
ity, (III) failure to warn, (IV) deceptive advertising, (V)
breach of warranty, (VI) conspiracy, and (VII) addiction
defectiveness.
Philip Morris and Altria (together, the “Altria defendants”)
removed the case to the United States District Court for the
District of Alaska. They argued that Hunter’s state law claims
against ACC were preempted by congressional policy not to
remove tobacco from the market and that ACC therefore was
fraudulently joined, resulting in complete diversity of citizen-
ship. The Altria defendants then filed a motion to dismiss
Hunter’s complaint pursuant to Federal Rule of Civil Proce-
dure 12(b)(6) for failure to state a claim. Hunter filed a
motion to remand, asserting that her complaint adequately
pleaded a strict products liability claim against ACC under
Alaska state law. She argued that ACC was not fraudulently
HUNTER v. PHILIP MORRIS USA 13915
joined and, consequently, that total diversity between plaintiff
and all defendants did not exist.
The district court denied Hunter’s motion to remand. The
court agreed with the Altria defendants that Hunter’s state
product liability claim against ACC was preempted because
it would result in an effective ban on cigarettes, in contraven-
tion of congressional policy. Hunter therefore had stated no
possible claim against ACC. The court accordingly found that
ACC was fraudulently joined, resulting in diversity of citizen-
ship. The court denied Hunter’s motion for reconsideration.
The district court then granted the 12(b)(6) motion to dis-
miss, reasoning that Hunter had failed to identify the specific
products Francis used and the alleged defects in the products,
and that any product liability claims were preempted by the
congressional intent not to ban the sale of cigarettes. The dis-
trict court entered final judgment in favor of Appellees.
Hunter timely appealed.
DISCUSSION
Hunter contends that the district court erred in denying her
motion to remand the case to state court and, accordingly, that
the court lacked jurisdiction to grant the Altria defendants’
motion to dismiss. We review de novo the district court’s
denial of a motion to remand to state court for lack of removal
jurisdiction. Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d
1241, 1243 (9th Cir. 2009); Hamilton Materials, Inc. v. Dow
Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007).
[1] A defendant may remove an action to federal court
based on federal question jurisdiction or diversity jurisdiction.
28 U.S.C. § 1441. However, “ ‘[i]t is to be presumed that a
cause lies outside [the] limited jurisdiction [of the federal
courts] and the burden of establishing the contrary rests upon
the party asserting jurisdiction.’ ” Abrego Abrego v. Dow
Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (quoting Kok-
13916 HUNTER v. PHILIP MORRIS USA
konen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)) (alterations in original). The “strong presumption
against removal jurisdiction means that the defendant always
has the burden of establishing that removal is proper,” and
that the court resolves all ambiguity in favor of remand to
state court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992) (per curiam) (internal quotation marks omitted).
[2] “ ‘The threshold requirement for removal under 28
U.S.C. § 1441 is a finding that the complaint contains a cause
of action that is within the original jurisdiction of the district
court.’ ” Ansley v. Ameriquest Mortgage Co., 340 F.3d 858,
861 (9th Cir. 2003) (quoting Toumajian v. Frailey, 135 F.3d
648, 653 (9th Cir. 1998)). In determining federal question
jurisdiction, the well-pleaded complaint rule “provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded com-
plaint.” Fisher v. NOS Commc’ns (In re NOS Commc’ns), 495
F.3d 1052, 1057 (9th Cir. 2007) (internal quotation marks and
citations omitted). Thus, the plaintiff is “the master of his
complaint” and may “avoid federal jurisdiction by relying
exclusively on state law.” Balcorta v. Twentieth Century-Fox
Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000). 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 preemp-
tion, even if the defense is anticipated in the plaintiff’s com-
plaint, and even if both parties admit that the defense is the
only question truly at issue in the case.” Franchise Tax Bd. v.
Constr. Laborers Vacation Trust, 463 U.S. 1, 14 (1983); see
also Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009)
(“Federal jurisdiction cannot be predicated on an actual or
anticipated defense.”); Valles v. Ivy Hill Corp., 410 F.3d
1071, 1075 (9th Cir. 2005) (“A federal law defense to a state-
law claim does not confer jurisdiction on a federal court, even
if the defense is that of federal preemption and is anticipated
in the plaintiff’s complaint.”); Ritchey v. Upjohn Drug Co.,
139 F.3d 1313, 1319 (9th Cir. 1998) (“Even when the area
involved is one where complete preemption is the norm, if the
HUNTER v. PHILIP MORRIS USA 13917
complaint relies on claims outside of the preempted area and
does not present a federal claim on its face, the defendant
must raise its preemption defense in state court.”).
[3] As for diversity jurisdiction, federal district courts have
jurisdiction over suits for more than $75,000 where the citi-
zenship of each plaintiff is different from that of each defen-
dant. 28 U.S.C. § 1332(a). Although an action may be
removed to federal court only where there is complete diver-
sity of citizenship, 28 U.S.C. §§ 1332(a), 1441(b), “one
exception to the requirement for complete diversity is where
a non-diverse defendant has been ‘fraudulently joined.’ ”
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th
Cir. 2001). Joinder is fraudulent “ ‘[i]f the plaintiff fails to
state a cause of action against a resident defendant, and the
failure is obvious according to the settled rules of the state.’ ”
Hamilton Materials, 494 F.3d at 1206 (quoting McCabe v.
Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987))
(alteration in original). In such a case, the district court may
ignore the presence of that defendant for the purpose of estab-
lishing diversity. Morris, 236 F.3d at 1067.
The Altria defendants removed the case to federal court
based on diversity of citizenship, not federal question jurisdic-
tion. In order to establish diversity, the Altria defendants con-
tended that Hunter’s claims against ACC were both
impermissibly vague and subject to conflict preemption and,
accordingly, that ACC had been fraudulently joined. Removal
accordingly was based on a meld of the implied preemption
doctrine from the federal question context and the fraudulent
joinder doctrine from the diversity context.
[4] The Altria defendants relied in the district court, and
rely here, on the Supreme Court’s decision in Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
137 (2000) (“FDA”), to argue that Hunter’s product liability
claim was impliedly preempted by the congressional intent to
prevent the categorical ban of cigarettes. The issue in FDA
13918 HUNTER v. PHILIP MORRIS USA
was whether the FDA had jurisdiction to regulate tobacco
products pursuant to the Food, Drug and Cosmetic Act
(“FDCA”), 21 U.S.C. §§ 301-397.1 The Court held that “Con-
gress has clearly precluded the FDA from asserting jurisdic-
tion to regulate tobacco products” because, if the FDA were
to regulate tobacco, the provisions of the FDCA would have
required the FDA to ban tobacco altogether. Id. at 126, 137.
“Congress, however, has foreclosed the removal of tobacco
products from the market.” Id. at 137.
The district court agreed with the Altria defendants’ reli-
ance on FDA in denying Hunter’s motion to remand. The
court thus concluded that Hunter’s product liability claim
against ACC was preempted because allowing such a claim
would result in an effective ban on the sale of tobacco prod-
ucts in contravention of congressional objectives. We disagree
with the district court’s reasoning on two grounds. First, we
disagree with the Altria defendants’ use of the affirmative
defense of implied preemption as a basis for asserting fraudu-
lent joinder in order to invoke diversity jurisdiction. Second,
even if the defendants were to be allowed to use the defense
of federal preemption to establish fraudulent joinder, we con-
clude that Hunter’s state product liability claim is not
impliedly preempted by federal law.
The use of the affirmative defense of federal preemption to
assert fraudulent joinder in order to establish diversity juris-
diction was addressed by the Fifth Circuit in Smallwood v.
Illinois Central R.R. Co., 385 F.3d 568 (5th Cir. 2004) (en
banc). In Smallwood, the plaintiff, Kelli Smallwood, a citizen
of Mississippi, sued Illinois Central, an Illinois corporation
that operated a train in Mississippi, and the Mississippi
1
On June 22, 2009, President Obama signed the Family Smoking Pre-
vention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776(2009), which granted the FDA authority to regulate tobacco products.
This legislation, however, does not “affect any action pending in Federal
[or] State . . . court.” Id. § 4(a)(2), 123 Stat. at 1782.
HUNTER v. PHILIP MORRIS USA 13919
Department of Transportation in state court for negligence.
Illinois Central removed the case to federal court, arguing that
the in-state defendant was improperly joined because Small-
wood had no reasonable possibility of recovery against it
because Smallwood’s claims were preempted by the Federal
Railroad Safety Act. The district court agreed and granted
summary judgment on the basis that Smallwood’s claim
against Illinois Central also was preempted. Thus, “the district
court’s decision that Smallwood’s claims against the in-state
defendant were preempted effectively decided the entire
case.” Id. at 571. The Fifth Circuit held that this was error. Id.
[5] The court explained that there are “two ways to estab-
lish improper joinder: ‘(1) actual fraud in the pleading of
jurisdictional facts, or (2) inability of the plaintiff to establish
a cause of action against the non-diverse party in state
court.’ ” Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-
47 (5th Cir. 2003)). The court addressed only the second type.
Id. The court “caution[ed] that a summary inquiry is appropri-
ate only to identify the presence of discrete and undisputed
facts that would preclude plaintiff’s recovery against the in-
state defendant” and reasoned that “the inability to make the
requisite decision in a summary manner itself points to an
inability of the removing party to carry its burden.” Id. at 573-
74. The court further stated that “[t]he party seeking removal
bears a heavy burden of proving that the joinder of the in-state
party was improper.” Id. at 574; see also Florence v. Crescent
Res., LLC, 484 F.3d 1293, 1299 (11th Cir. 2007) (holding
that, “if there is any possibility that the state law might
impose liability on a resident defendant under the circum-
stances alleged in the complaint, the federal court cannot find
that joinder of the resident defendant was fraudulent, and
remand is necessary”).
Smallwood also addressed the unique situation when the
same analysis applied to an assertion of fraudulent joinder
applies to all defendants.
13920 HUNTER v. PHILIP MORRIS USA
[W]hen, on a motion to remand, a showing that com-
pels a holding that there is no reasonable basis for
predicting that state law would allow the plaintiff to
recover against the in-state defendant necessarily
compels the same result for the nonresident defen-
dant, there is no improper joinder; there is only a
lawsuit lacking in merit. In such cases, it makes little
sense to single out the in-state defendants as “sham”
defendants and call their joinder improper. In such
circumstances, the allegation of improper joinder is
actually an attack on the merits of plaintiff’s case as
such — an allegation that, as phrased by the
Supreme Court in Chesapeake & O.R. Co. v. Cock-
rell, [232 U.S. 146, 153 (1914),] “the plaintiff’s case
[is] ill founded as to all the defendants.”
385 F.3d at 574. Because there was no improper joinder, the
case was remanded to the district court with instructions to
remand to the state court from which it was removed. See id.
at 576-77.
[6] We agree with the Fifth Circuit. Here, as in Smallwood,
the district court’s decision that Hunter’s claims against ACC
were preempted “effectively decided the entire case.” Id. at
571. The Altria defendants’ preemption argument accordingly
should have been brought in the context of attacking the mer-
its of Hunter’s case, rather than as a basis for removing the
case to federal court.
Our decision in Ritchey does not foreclose this holding. In
Ritchey, we held that the statute of limitations defense is a
permissible means by which to establish fraudulent joinder in
order to remove an action on diversity grounds. We empha-
sized, however, that the statute of limitations defense is a
“rather unique” defense that “does not truly go to the merits
of the plaintiff’s claim in any sense.” 139 F.3d at 1319.
Instead, it “virtually admits the validity of the cause of action
and the plaintiff’s right to collect upon it, but asserts that the
HUNTER v. PHILIP MORRIS USA 13921
plaintiff waited too long to pursue the cause of action.” Id.That defense accordingly is “a kind of procedural bar, and not
one which relates to the merits of the case.” Id.[7] The preemption defense, by contrast, goes to the merits
of the plaintiff’s case. When a defendant asserts that the plain-
tiff’s claim is impliedly preempted by federal law, it cannot
be said that the plaintiff’s failure to state a claim against the
resident defendant is “obvious according to the settled rules
of the state.” Hamilton Materials, 494 F.3d at 1206 (internal
quotation marks omitted). Rather, the preemption question
requires an inquiry into the merits of the plaintiff’s claims
against all defendants and an analysis of federal law. In such
a case, the defendant has failed to overcome the “strong pre-
sumption against removal jurisdiction.” Gaus, 980 F.2d at
566.
[8] Here, for example, it is not obvious from the face of the
complaint that Hunter has failed to state a claim against ACC.
Hunter’s complaint alleged: (1) that Francis “purchased and
used cigarettes from defendants”; (2) the cigarettes were
unsafe and defective and posed a risk that outweighed their
utility; (3) Francis used defendants’ cigarettes “without a
change in condition,” since they had left defendants’ posses-
sion; (4) Francis developed lung cancer “as a direct and proxi-
mate result of the use of Defendants’ unsafe and defective
cigarettes”; and (5) this caused his family losses.2
[9] In Alaska, “[a] manufacturer is strictly liable in tort
when an article he places on the market knowing that it is to
be used without inspection for defects, proves to have a defect
that causes injury to a human.” Pratt & Whitney Can., Inc. v.
Sheehan, 852 P.2d 1173, 1176 (Alaska 1993) (quoting Green-
2
Although Hunter raised numerous claims in her complaint, we address
only her strict products liability claim, which is the claim she focuses on
in her brief. We do not consider whether she has stated any other claim
or claims on which relief can be granted.
13922 HUNTER v. PHILIP MORRIS USA
man v. Yuba Power Prods., Inc., 377 P.2d 897, 900 (Cal.
1963)). A plaintiff may claim strict products liability against
a seller by proving that the product has a defect, that the
defect causes an injury to a human being, and that the defen-
dant is a seller. Burnett v. Covell, 191 P.3d 985, 988 (Alaska
2008). Construing Hunter’s pleadings liberally, as required by
Alaska’s notice pleading rules, the complaint sufficiently
alleges a strict products liability claim under Alaska law. See
Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1168 n.4
(Alaska 1998) (explaining that “[a] cause of action is suffi-
ciently pled if it provides the defendant with fair notice of the
nature of the claim,” and that pleadings should be construed
liberally (citing Alaska Ct. R. Civ. P. 8(a))). Because it is not
obvious according to the settled rules of the state that Hunter
has failed to state a claim against ACC, without looking to the
federal law of preemption, we cannot find that the joinder was
fraudulent.
[10] As the Eleventh Circuit has stated, “if there is a possi-
bility that a state court would find that the complaint states a
cause of action against any of the resident defendants, the fed-
eral court must find that the joinder was proper and remand
the case to the state court.” Tillman v. R.J. Reynolds Tobacco,
340 F.3d 1277, 1279 (11th Cir. 2003) (per curiam). In Till-
man, after receiving an answer to a certified question from the
Alabama Supreme Court regarding the liability of retail
defendants for selling cigarettes, the court held that the district
court “erroneously asserted federal jurisdiction on the ground
that [the retail defendants] had been fraudulently joined.” Id.The court therefore vacated the district court’s judgment in
favor of R.J. Reynolds and remanded with instructions to
remand the case to the state court. Id.[11] Even if it were appropriate to raise implied preemption
as a ground for a finding of fraudulent joinder, the Altria
defendants would face both the strong presumption against
removal jurisdiction and the “general presumption against
fraudulent joinder.” Hamilton Materials, 494 F.3d at 1206. In
HUNTER v. PHILIP MORRIS USA 13923
order successfully to carry this heavy burden, they have relied
on the doctrine of conflict preemption, which arises “where it
is ‘impossible for a private party to comply with both state
and federal requirements,’ or where state law ‘stands as an
obstacle to the accomplishment and execution of the full pur-
poses and objectives of Congress.’ ” Freightliner Corp. v.
Myrick, 514 U.S. 280, 287 (1995) (quoting English v. Gen.
Elec. Co., 496 U.S. 72, 79 (1990), and Hines v. Davidowitz,
312 U.S. 52, 67 (1941)); see also Cipollone v. Ligget Group,
Inc., 505 U.S. 504, 516 (1992) (“In the absence of an express
congressional command, state law is pre-empted if that law
actually conflicts with federal law, . . . or if federal law so
thoroughly occupies a legislative field as to make reasonable
the inference that Congress left no room for the States to sup-
plement it.”) (internal quotation marks omitted).
“When addressing questions of express or implied pre-
emption, we begin our analysis ‘with the assumption that the
historic police powers of the States [are] not to be superseded
by the Federal Act unless that was the clear and manifest pur-
pose of Congress.’ ” Altria Group, Inc. v. Good, 129 S. Ct.
538, 543 (2008) (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230 (1947)) (alteration in original). This
assumption “applies with particular force” where, as here, the
field is one that is “traditionally occupied by the States.” Id.The Supreme Court and the appellate courts have addressed
the question of the preemption of state law by federal tobacco
legislation in a series of cases. See, e.g., Altria, 129 S. Ct.
538; Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001);
Cipollone, 505 U.S. 504; Rivera v. Philip Morris, Inc., 395
F.3d 1142 (9th Cir. 2005); Boerner v. Brown & Williamson
Tobacco Co., 394 F.3d 594 (8th Cir. 2005). Appellees empha-
size that they do not rely on the doctrine of express preemp-
tion, which was at issue in, for example, Lorillard, Cipollone,
and Rivera. Those cases dealt with the express preemption
provision of the Federal Cigarette Labeling and Advertising
Act of 1965 (the “Labeling Act”), as amended by the Public
13924 HUNTER v. PHILIP MORRIS USA
Health Cigarette Smoking Act of 1969, which requires warn-
ings on cigarette packages. It is noteworthy, however, that
even when addressing the express preemption provision of the
Labeling Act, the courts have not found all state law claims
and regulations to be preempted.
For example, in Boerner, the Eighth Circuit rejected the
tobacco company’s argument that the plaintiff’s state design
defect claim was preempted by the Labeling Act. 394 F.3d at
599-600. The court relied on the express language of the
Labeling Act, which indicated Congress’ intent to preempt
only smoking-related laws “ ‘concerning the advertising or
promotion of cigarettes,’ ” and reasoned that the Act “is silent
on the question of preemption of other state law causes of
action.” Id. at 600 (quoting Jones v. Vilsack, 272 F.3d 1030,
1034 (8th Cir. 2001)). “Because ‘Congress’ enactment of a
provision defining the preemptive reach of a statute implies
that matters beyond that reach are not pre-empted,’ ” the court
held that the state law claim was not preempted. Id. (quoting
Cipollone, 505 U.S. at 517); see also, e.g., Altria, 129 S. Ct.
at 549 (concluding that the Labeling Act did not preempt a
state law claim that the tobacco companies’ advertising was
fraudulent); Lorillard, 533 U.S. at 552 (holding that, although
the Labeling Act preempts state regulation of cigarette adver-
tising, it “does not foreclose all state regulation of conduct as
it relates to the sale or use of cigarettes”); Cipollone, 505 U.S.
at 519-20 (holding that the Labeling Act “only pre-empted
state and federal rulemaking bodies from mandating particular
cautionary statements and did not pre-empt state-law damages
actions”); Rivera, 395 F.3d at 1148 (holding that a strict lia-
bility failure-to-warn claim was not preempted by the Label-
ing Act).
The Altria defendants’ argument that Hunter’s claim
against ACC is impliedly preempted relies solely on the prin-
ciple expressed in FDA that Congress has foreclosed the
removal of tobacco products from the market. In reaching this
conclusion, the Supreme Court reasoned that “Congress has
HUNTER v. PHILIP MORRIS USA 13925
directly addressed the problem of tobacco and health through
legislation on six occasions since 1965,”3 and that Congress
enacted the statutes despite the fact that “the adverse health
consequences of tobacco use were well known.” FDA, 529
U.S. at 137-38. The Court explained that Congress had regu-
lated the labeling and advertisement of tobacco products,
while simultaneously expressing the policy of protecting
“commerce and the national economy.” Id. at 138-39.
Appellees argue that FDA’s core holding should be
expanded based on Geier v. Am. Honda Motor Co., 529 U.S.
861 (2000), in which the Supreme Court found that a state
common-law tort action was preempted by a safety standard
promulgated by the Department of Transportation under the
authority of a federal statute. Id. at 886. Geier, however, is
distinguishable.
The tort action in Geier relied on a claim that manufactur-
ers had a duty to install an airbag in a car. Id. at 881. The fed-
eral regulation, however, “deliberately sought variety — a
mix of several different passive restraint systems.” Id. at 878.
The state law claim, which would have required manufactur-
ers to install airbags, therefore “would have presented an
obstacle to the variety and mix of devices that the federal reg-
ulation sought.” Id. at 881.
3
The Court listed six statutes aimed at regulating tobacco. In addition
to the 1965 Labeling Act and the Public Health Cigarette Smoking Act of
1969, Congress enacted the Alcohol and Drug Abuse Amendments of
1983, Pub. L. No. 98-24, 97 Stat. 175 (expressing the policy to reduce
alcohol and drug abuse); the Comprehensive Smoking Education Act,
Pub. L. No. 98-474, 98 Stat. 2200 (addressing labeling requirements for
cigarettes); the Comprehensive Smokeless Tobacco Health Education Act
of 1986, Pub. L. No. 99-252, 100 Stat. 30 (providing for public education
regarding smokeless tobacco products); and the Alcohol, Drug Abuse, and
Mental Health Administration Reorganization Act, Pub. L. No. 102-321,
106 Stat. 323 (addressing, inter alia, the use of tobacco products by
minors). See FDA, 529 U.S. at 137-38.
13926 HUNTER v. PHILIP MORRIS USA
[12] Unlike Geier, in which the state law claim would have
imposed a duty that directly contradicted a federal regulation,
Hunter’s claim cannot be said to “stand[ ] as an obstacle to the
accomplishment and execution of the full purposes and objec-
tives of Congress.” Freightliner Corp., 514 U.S. at 287 (inter-
nal quotation marks omitted). That is, Hunter’s product
liability claim does not present an obstacle to the congress-
ional policy concerning the regulation of tobacco. In 2004,
after the Court decided FDA, Congress repealed the provision
of the Agricultural Adjustment Act of 1938 that had articu-
lated federal policy in support of the marketing of tobacco.
See Fair and Equitable Tobacco Reform Act of 2004, Pub. L.
No. 108-357, § 611(a); see also FDA, 529 U.S. at 137 (quot-
ing the now-repealed provision at length). The remaining reg-
ulatory provisions concern labeling, research, and education
and do not provide strong evidence of a federal policy against
more stringent state regulation. We decline to find preemption
“in the absence of clear evidence of a conflict.” Geier, 529
U.S. at 885; see also Sprietsma v. Mercury Marine, 537 U.S.
51, 69 (2002) (concluding that the Federal Boat Safety Act’s
express preemption clause did not cover state common law
claims, and that “its structure and framework do not convey
a clear and manifest intent to go even further and implicitly
pre-empt all state common law relating to boat manufacture”)
(internal quotation marks and citation omitted).
[13] In sum, the Altria defendants have failed to overcome
the presumption against removal because Hunter’s complaint
does not indicate that she has obviously failed to state a claim
against ACC. Accordingly, the district court erred in conclud-
ing that ACC was fraudulently joined. The Altria defendants
further have failed to establish a clear conflict between Hunt-
er’s claim and federal law. Implied preemption therefore does
not apply. Because ACC was not fraudulently joined, there
was no complete diversity of citizenship, and the case should
have been remanded to the state court. Appellants shall
recover their costs on appeal from Appellees.
HUNTER v. PHILIP MORRIS USA 13927
[14] For the foregoing reasons, the judgment of the district
court is vacated and the case is remanded with instructions
that the case be remanded to state court.
VACATED and REMANDED with instructions.