Anastasia Wullschleger v. Royal Canin U.S.A., Inc.

                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 22-1796
                        ___________________________

Anastasia Wullschleger, On behalf of themselves and all others similarly situated;
                              Geraldine Brewer

                                     Plaintiffs - Appellants

                                        v.

            Royal Canin U.S.A., Inc.; Nestle Purina Petcare Company

                                    Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: January 11, 2023
                         Resubmitted: February 10, 2023
                              Filed: July 31, 2023
                                 ____________

Before KELLY, ERICKSON, and STRAS, Circuit Judges.
                           ____________

STRAS, Circuit Judge.

       We must decide whether amending a complaint to eliminate the only federal
questions destroys subject-matter jurisdiction. The answer is yes, so the case must
return to state court.
                                          I.

       Anastasia Wullschleger’s dog, Clinton, suffered from health problems. The
solution, at least according to a veterinarian, was to feed him specialized dog food
available only by prescription. It has different ingredients than regular dog food but
includes no special medication.

       Prescription dog food is expensive. The crux of Wullschleger’s complaint is
that the “prescription” requirement is misleading because the Food and Drug
Administration never actually evaluates the product. And the damages came from
its higher sales price.

       The original complaint, which included only state-law claims, reflected these
theories. Brought on behalf of all similarly situated Missouri consumers, it alleged
a violation of Missouri’s antitrust laws, claims under Missouri’s Merchandising
Practices Act, and unjust enrichment. Wullschleger initially filed her complaint in
state court, but Royal Canin and Nestle Purina quickly removed it to federal court.
The district court then remanded it—a decision that ended up before us on appeal.
See 

(c)(1) (providing for an appeal of “an order of a district court
granting or denying a motion to remand a class action”).

       We concluded that Wullschleger’s antitrust and unjust-enrichment claims had
important federal ingredients that would require “explication of federal law.”
Wullschleger v. Royal Canin U.S.A., Inc., 

 (8th Cir. 2020); see
Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 

 (2005)
(allowing removal when a state-law claim “necessarily raise[s] a stated federal issue,
actually disputed and substantial”). The antitrust claim, for example, alleged a
conspiracy consisting of unlawful parallel conduct between the manufacturers, pet-
food stores, and other pet-food producers to ignore Food and Drug Administration
guidance and bypass regulatory approval. See 

(f)–(g), 352(o), 360;
Draft Compliance Policy Guide Sec. 690.150 on Labeling and Marketing of
Nutritional Products Intended for Use To Diagnose, Cure, Mitigate, Treat, or Prevent
                                         -2-
Disease in Dogs and Cats, 

 (Sept. 10, 2012). The complaint’s
prayer for relief, which requested an injunction to stop the violations of federal law,
only added to the federal character of the case. See Wullschleger, 

.
We decided it belonged in federal court. See 

       Wullschleger switched gears once she returned to the district court. She
eliminated every reference to federal law in the complaint, cut the antitrust and
unjust-enrichment claims, and narrowed her request for injunctive relief. As a
replacement, she added a civil-conspiracy claim. See Oak Bluff Partners, Inc. v.
Meyer, 

, 780–81 (Mo. banc 1999) (per curiam) (listing the elements of
civil conspiracy).

      The changes, however, made no difference. The district court believed that
federal-question jurisdiction still existed. See 

. It also eventually
granted the manufacturers’ motion to dismiss, which has resulted in a second appeal.
See Fed. R. Civ. P. 12(b)(6). We asked the parties to submit supplemental briefing
on whether subject-matter jurisdiction exists.

                                          II.

       No matter the stage of the case, we must be sure it exists, even if the parties
expect a decision on the merits. See Bilello v. Kum & Go, LLC, 

(8th Cir. 2004) (“[W]hen the record indicates jurisdiction may be lacking, we must
consider the jurisdictional issue sua sponte.”). Our review is de novo. See M & B
Oil, Inc. v. Federated Mut. Ins. Co., 

 (8th Cir. 2023).

                                          A.

       Original jurisdiction is the key to getting into federal court, whether by filing
there from the start or by removal. See 

. At first, original jurisdiction
came through the federal questions in Wullschleger’s complaint. Wullschleger, 953
F.3d at 521–22 (citing 

). Not the typical type, which are “cause[s]
                                          -3-
of action created by federal law.” Grable, 

. Rather, ones consisting
of “state-law claims that implicate significant federal issues.” 

      To qualify, one or more of the claims in her complaint must have “(1)
necessarily raised [federal issues], (2) [that were] actually disputed, (3) substantial,
and (4) capable of resolution in federal court without disrupting the federal-state
balance approved by Congress.” See Gunn v. Minton, 

 (2013). 

We determined in the first appeal that Wullschleger’s antitrust and unjust-
enrichment claims fell into this “special and small category” of cases. 

       Now those claims are gone. All that remains are the Missouri Merchandising
Practices Act claims, which do not necessarily raise a substantial federal issue. See
Wullschleger, 

. Wullschleger kept those claims largely the same on
remand, so they cannot supply the now-missing federal question. See Otten v.
Stonewall Ins. Co., 

 (8th Cir. 1976) (explaining how the law-of-
the-case doctrine applies to legal determinations from a previous appeal).

       Nor can her newly pleaded civil-conspiracy claim, which “is not [even] a
separate and distinct action” in Missouri. W. Blue Print Co. v. Roberts, 

 (Mo. banc 2012). It is instead a theory for holding the manufacturers jointly
and severally liable for their allegedly illegal conduct. See 

 And it is based on
the same basic theory as the Missouri Merchandising Practices Act claims: the
manufacturers misled pet owners into believing that prescription pet food legally
required a prescription. If those claims cannot create federal-question jurisdiction,
then the civil-conspiracy claim cannot either. See Wullschleger, 

.

        Just on the face of the amended complaint, the answer today is as clear as it
can be. Only the carryover claims and their civil-conspiracy counterpart remain, and
neither one presents a federal question. It is no longer possible to say that
“dependence on federal law permeates the allegations” of Wullschleger’s complaint.

. In fact, the opposite is true: there is nothing federal about it.


                                          -4-
                                            B.

      The manufacturers, for their part, would rather have us focus on the original
complaint. In their view, amendments do not matter: once a federal question, always
a federal question.

       The manufacturers’ argument runs into our rule that “an amended complaint
[supersedes] an original complaint and renders the original complaint without legal
effect.” In re Atlas Van Lines, Inc., 

 (8th Cir. 2000). It makes
no difference whether the case ends up in federal court through removal. See In re
Wireless Tel. Fed. Cost Recovery Fees Litig., 

 (8th Cir. 2005)
(holding that the district court had jurisdiction after removal from state court based
on an amended complaint).1 As we put it nearly 100 years ago, if “[t]he plaintiff . . .
change[s] his pleading voluntarily [so] that the court will no longer have
jurisdiction . . . then [it] becomes the duty of the court to remand the case, if it be a
removed case.” Highway Constr. Co. v. McClelland, 

 (8th Cir.
1926) (per curiam); see 

(c) (“If at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”).

       There is, to be sure, another rule that “the jurisdiction of the [c]ourt depends
upon the state of things at the time of the action brought.” Mollan v. Torrance, 

 (1824). But both can be true: we can assess “the state of things” at
the time of filing and still evaluate jurisdiction according to the allegations in an
amended complaint. As the Second Circuit has explained, the “time-of-filing rule
applies to changes [to] the ‘state of things,’ . . . not to changes [to] the ‘alleged state


      1
        There is an exception. We would have looked at the original complaint if the
“district court [had] order[ed] [Wullschleger] to amend [her] complaint or [if] the
decision to amend [was] otherwise involuntary.” Atlas Van Lines, 

;
see Humphrey v. Sequentia, Inc., 

, 1240–42 (8th Cir. 1995). Neither,
however, occurred here.

                                           -5-
of things.’” Gale v. Chi. Title Ins. Co., 

 (2d Cir. 2019) (quoting
Rockwell Int’l Corp. v. United States, 

 (2007)). Both “must support
jurisdiction.” Id. at 77.

       The distinction between the two is subtle. The “state of things,” which is
subject to the time-of-filing rule, refers to the actual facts on the ground. Suppose,
for example, that one party destroys diversity by moving to another state after filing.
This change to the “state of things” does not destroy diversity jurisdiction, even if
living in that state from the beginning would have. See Morgan’s Heirs v. Morgan,

 (1817). The same goes for after-filing changes to the amount-in-
controversy. See Saint Paul Mercury Indem. Co. v. Red Cab Co., 

,
294–95 (1938); Fochtman v. Hendren Plastics, Inc., 

, 642–43 (8th Cir.
2022).

       We treat changes to the “alleged state of things” differently. Gale, 

 (quoting Rockwell, 

). For example, a plaintiff can add a federal
claim after removal to cure a lack of subject-matter jurisdiction, see Bernstein v.
Lind-Waldock & Co., 

 (7th Cir. 1984); see also ConnectU LLC v.
Zuckerberg, 

 (1st Cir. 2008) (allowing a plaintiff to “switch[]
jurisdictional horses” in an amended complaint), or replace a diverse defendant with
a non-diverse one to “divest[] the district court of jurisdiction,” Am. Fiber &
Finishing, Inc. v. Tyco Healthcare Grp., LP, 

 (1st Cir. 2004); see
McClelland, 

. The facts on the ground have not changed, but the facts
in the complaint have. Under our rule that “an amended complaint [supersedes] an
original complaint,” these changes can create or destroy federal jurisdiction. Atlas
Van Lines, 

; see Gale, 

.

      Was there a change to the “state of things” or the “alleged state of things”
here? The facts on the ground never changed, but the allegations in the complaint
did. There is little difference, from a jurisdictional perspective, between adding a
federal claim in the absence of federal-question jurisdiction, see Bernstein, 

, and subtracting a claim or two, as happened here, to eliminate federal-
                                         -6-
question jurisdiction. Both involve the same simple act of amendment, a change to
the “alleged state of things.” See Shaw v. Gwatney, 

 (8th Cir.
1986) (looking to the amended complaint when the plaintiff added a claim that fell
within the exclusive jurisdiction of the Court of Federal Claims).

       To the extent that other courts have come out differently, most have
emphasized forum-manipulation concerns2 over jurisdictional rigor. See, e.g., 16
Front St., L.L.C. v. Miss. Silicon, L.L.C., 

, 558–59 (5th Cir. 2018); In
Touch Concepts, Inc. v. Cellco P’ship, 

, 101–02 (2d Cir. 2015). Taking
the above example, some might say that attempting to cure a lack of federal-question
jurisdiction by adding federal claims after removal is not forum-manipulative, but
subtracting federal claims to thwart removal is. So we should allow the former but
not the latter.

       Jurisdictional first principles counsel otherwise. One reason is that there is no
preference for federal jurisdiction. Quite the opposite: “all doubts about federal
jurisdiction must be resolved in favor of remand.” Cent. Iowa Power Coop. v.
Midwest Indep. Transmission Sys. Operator, Inc., 

 (8th Cir. 2009).
It makes little sense, as the manufacturers argue, to apply a one-way forum-
manipulation ratchet in favor of federal jurisdiction, but not the other way around.


      2
        There is a straightforward procedural answer to curbing potential forum
manipulation. Unless amendments to the complaint happen quickly, a district court
can withhold “leave” to amend if the only reason for the changes is to destroy federal
jurisdiction. Fed. R. Civ. P. 15(a)(1) (explaining when a party may amend as of
right), (a)(2) (allowing a district court to deny leave to amend “when justice so
requires”); see Brown v. Wallace, 

 (8th Cir. 1992) (per curiam)
(pointing to “undue delay,” “bad faith,” and “undue prejudice to the non-moving
party” as reasons to deny leave to amend (citation omitted)); see also Bailey v. Bayer
CropScience L.P., 

 (8th Cir. 2009) (directing district courts “to
consider . . . ‘the extent to which the joinder of [a] nondiverse party is sought to
defeat federal jurisdiction’” in deciding whether to grant leave to amend (citation
omitted)).

                                          -7-
        A second is that it is not even clear that the time-of-filing rule applies in
federal-question cases, and certainly not to the extent it does in diversity cases. It
first arose in a diversity case nearly 200 years ago. See Mollan, 

. And
for the most part, it has not strayed from there. See Grupo Dataflux v. Atlas Glob.
Grp., L.P., 

 (2004) (explaining that the time-of-filing rule
“measures all challenges to subject-matter jurisdiction premised upon diversity of
citizenship against the state of facts that existed at the time of filing” (emphasis
added)); see also ConnectU, 

; New Rock Asset Partners, L.P. v.
Preferred Entity Advancements, Inc., 

 (3d Cir. 1996); Erwin
Chemerinsky, Federal Jurisdiction § 5.5, at 377–78 (6th ed. 2012) (recognizing this
distinction).

      And perhaps most importantly, we adopt the distinction between the “state of
things” and “alleged state of things” because our precedent requires it. Gale, 

 (quoting Rockwell, 

). Recall that we stated nearly 100
years ago that it is a court’s “duty . . . to remand the case,” even if the plaintiff
voluntarily amends the complaint in “a removed case.” McClelland, 

.3
The McClelland rule makes as much sense today as it did then.

                                         C.

      The manufacturers hope to keep the case in federal court through
supplemental jurisdiction. It is too late, however, to turn back the clock. The
original complaint is “without legal effect,” Atlas Van Lines, 

,
meaning that the possibility of supplemental jurisdiction vanished right alongside
the once-present federal questions, see 

(a). See M & B Oil, 

 (discussing the need for “original jurisdiction” in removal situations); see
also Pintando v. Miami-Dade Hous. Agency, 

, 1243–44 (11th Cir.

      3
        To the extent that McLain v. Andersen Corp., 

 (8th Cir.
2009), is inconsistent with McClelland, we follow the latter. See Mader v. United
States, 

 (8th Cir. 2011) (en banc) (requiring a “subsequent panel[]”
to follow the “earliest opinion” (citation omitted)).
                                          -8-
2007) (per curiam) (explaining that when “there [is] no longer a federal claim on
which the district court could exercise supplemental jurisdiction,” the source of the
“district court’s subject-matter jurisdiction cease[s] to exist”). The only option now
is state court.

                                         III.

       We accordingly vacate the district court’s judgment and send this case back
to the district court with directions to remand it to Missouri state court.
                         ______________________________




                                         -9-