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MANGINI v. R.J. REYNOLDS TOBACCO CO.

March 9, 1992

JANET C. MANGINI, a California Corporation, Plaintiff,
v.
R.J. REYNOLDS TOBACCO CO., et. al., Defendants.



The opinion of the court was delivered by: SAMUEL CONTI

 I. Introduction

 Plaintiff, Janet C. Mangini ("Mangini"), brought this suit in California court against defendant, R.J. Reynolds Tobacco Co. ("Reynolds"), among others, alleging violations of the Federal Cigarette Labeling and Advertising Act ("Labeling Act"), 15 U.S.C. § 1333(a)(2), and California Business and Professions Code §§ 17200 et seq. Mangini alleges that various aspects of the "Joe Camel" advertising campaign for Camel brand cigarettes, ranging from T-Shirts to matchbooks, advertise cigarettes but do not include warnings about the detrimental health effects of smoking as required by the Labeling Act.

 Plaintiff, pursuant to the private attorney general provision of the California code, § 17204, sues on behalf of the California public, seeking injunctive relief in the form of remedial advertising, and a constructive trust comprised of the profits which defendants allegedly unjustly earned as the result of the allegedly illegal advertising. *fn1"

 II. Discussion

 The jurisdiction of federal courts is defined and limited by Article III of the Constitution. Flast v. Cohen, 20 L. Ed. 2d 947, 959, 392 U.S. 83, 88 S. Ct. 1942 (1968). The defendant bears the burden of establishing federal jurisdiction, and must overcome a strict construction of the removal statute against removal. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir. 1988). Federal courts must "scrupulously confine" the exercise of jurisdiction to those cases which fall within the purview of the removal statute. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 85 L. Ed. 1214 , 61 S. Ct. 868 (1941). Any doubts as to removability are resolved in favor of remanding the case to state court. Kaneshiro v. North American Co. for Life and Health, 496 F. Supp. 452, 461 (D.Haw. 1980).

 A. Federal Question Jurisdiction

 Defendant contends that Mangini's claim "arises under" federal law because the vindication of her right under state law "necessarily turns on some construction of federal law." Franchise Tax Board v. Construction Laborers Vacation Trust, 77 L. Ed. 2d 420, 430, 463 U.S. 1, 103 S. Ct. 2841 (1983). Defendant claims that whether it violated the Labeling Act is not merely an element of the underlying state action, it is the only element. The court finds these arguments unpersuasive in light of the clear wording of Mangini's complaint and relevant case law.

 It is first important to note that the Labeling Act does not explicitly provide for any private right of action. *fn2" Moreover, even if the court were to apply the accepted test for determining whether or not Congress intended the statute to include a private right of action, this statute would fail that test. *fn3" There is no indication of any kind that Congress intended to provide a private right of action pursuant to the Labeling Act. It would therefore "flout congressional intent to provide a private federal remedy for the violation of the federal statute." Merrell Dow Pharmaceuticals Inc. v. Thompson, 92 L. Ed. 2d 650, 661, 478 U.S. 804, 106 S. Ct. 3229 (1986).

 As in Merrell Dow, this case involves a complaint alleging a violation of a federal statute as an element of a state cause of action. Id. at 664. In that case, and where Congress has determined that there should be no private, federal cause of action for the violation, the complaint does not state a claim which "arises under" federal law and does not, therefore, confer federal question jurisdiction on this court. Interpreting Merrell Dow in a way diametrically opposed to defendants' contentions in this case, the Ninth Circuit has held that "if a federal law does not provide a private right of action, then a state law action based on its violation perforce does not raise a 'substantial' federal question. *fn5" Utley v. Varian Associates, Inc., 811 F.2d 1279, 1283 (9th Cir. 1987).

 violate the Federal Cigarette Labeling and Advertising Act (15 U.S.C. § 1333(a)(2)) which prohibits advertising cigarettes without a health warning, and constitute an unlawful and unfair business practice under California Business and Professions Code §§ 17200 et seq. (emphasis supplied).

 It is possible, in other words, that defendants have violated the California statute even without proving Labeling Act violations. When read in this manner, Mangini's complaint does not rest entirely on an interpretation of federal law at all. The court finds ...


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