488 183 FEDERAL REPORTER, 3d SERIES

of Appeals, Clay, Circuit Judge, held that:

Thomas J. COYNE, Jr. and Timothy F. (1) motion for remand to state court was
Hagan, on behalf of the State of Ohio properly denied on basis of fraudulent
and all Ohio Taxpayers, Plaintiffs–Ap- joinder; (2) officials lacked standing to
pellants, bring suit; and (3) remand to state court
v. was required despite alleged futility.
The AMERICAN TOBACCO COMPA- Affirmed and remanded with instruc-
NY, also known as The American To- tions.
bacco Company, Inc.; American
Brands, Inc.; B.A.T. Industries P.L.C.;
1. Federal Civil Procedure O1773
R.J. Reynolds Tobacco Company; RJR
Nabisco, Inc.; Brown & Williamson A complaint will be dismissed for fail-
Tobacco Corporation, formerly known ure to state a claim only when it appears
as The American Tobacco Company, beyond doubt that the plaintiff can prove
individually and as Successor by no set of facts in support of his claim
Merger to; British–American Tobacco which would entitle him to relief.
Co., Ltd.; Batus Inc.; Batus Holding, 2. Federal Civil Procedure O1829, 1835
Inc.; Philip Morris, Inc.; Philip Mor-
Federal Courts O797
ris Companies, Inc.; Liggett & Myers,
For purposes of ruling on a motion to
Inc.; Liggett Group, Inc.; Brooke
dismiss for want of standing, both the trial
Group, Ltd; Lorillard Tobacco Com-
and reviewing courts must accept as true
pany, also known as Lorillard Tobac-
all material allegations of the complaint,
co Company, Inc.; Lorillard, Inc.;
and must construe the complaint in favor
United States Tobacco Company;
of the complaining party.
UST, Inc.; Council for Tobacco Re-
search—U.S.A., Inc.; Tobacco Insti- 3. Federal Courts O776
tute, Inc.; Novelart Manufacturing Court of Appeals reviews de novo the
Company; Eby–Brown Company; The district court’s decision to dismiss a claim
Kroger Company; Riser Foods, Inc., for lack of standing.
Defendants–Appellees.
No. 98–3269. 4. Federal Courts O776, 870.1
Court of Appeals reviews de novo a
United States Court of Appeals, district court’s decision on subject matter
Sixth Circuit. jurisdiction, but must respect the district
Argued: March 17, 1999. court’s factual findings that are the basis
Decided and Filed: July 12, 1999. of a jurisdictional determination unless
clearly erroneous.

Local public officials acting on behalf 5. Removal of Cases O36

of state and all state taxpayers brought Plaintiffs who brought state court ac-
state court action against tobacco manufac- tion against out-of-state tobacco manufac-
turers, wholesalers, and retailers, seeking turers and in-state tobacco wholesalers
recovery of money expended by state to and retailers, seeking recovery of state’s
treat citizens who suffered from nicotine expenditures on tobacco-related illnesses
addiction and other tobacco-related illness- and diseases, could not establish state-law
es and diseases. Defendants obtained re- cause of action against wholesalers and
moval. The United States District Court retailers, absent allegation that they knew
for the Northern District of Ohio, Patricia of so-called nicotine defect any sooner than
A. Gaughan, J., dismissed action for lack of members of general public or that they
standing, and officials appealed. The Court made any representations about cigarettes
 COYNE v. AMERICAN TOBACCO CO. 489
Cite as 183 F.3d 488 (6th Cir. 1999)
or nicotine, so manufacturers’ removal of 12. Federal Civil Procedure O103.2
action was proper on basis of fraudulent Standing is the threshold question in
joinder. Ohio R.C. § 2307.78(A)(1). every federal case.

6. Removal of Cases O107(9) 13. Federal Civil Procedure O103.2,

103.3
When reviewing the denial of a motion
to remand a case to state court, Court of To satisfy Article III’s standing re-
Appeals first looks to determine whether quirement, a plaintiff must have suffered
the case was properly removed to federal some actual or threatened injury due to
court. the alleged illegal conduct of the defen-
dant, the injury must be fairly traceable to
7. Removal of Cases O107(9) the challenged action, and there must be a
substantial likelihood that the relief re-
When an action is removed based on
quested will redress or prevent the plain-
diversity, court reviewing the denial of a
tiff’s injury; hence, the irreducible mini-
motion to remand a case to state court
mum constitutional requirements for
must determine whether complete diversi-
standing are proof of injury in fact, causa-
ty exists at the time of removal.
tion, and redressability. U.S.C.A. Const.
8. Federal Courts O286.1 Art. 3, § 2.
Diversity jurisdiction attaches only 14. Federal Civil Procedure O103.2,
when all parties on one side of the litiga- 103.5
tion are of a different citizenship from all A plaintiff bears the burden of demon-
parties on the other side of the litigation. strating standing and must plead its com-
ponents with specificity.
9. Federal Courts O317
15. Federal Civil Procedure O103.2,
A party seeking to bring a case into
103.4
federal court on grounds of diversity car-
To satisfy prudential standing restric-
ries the burden of establishing diversity
tions, a plaintiff must assert his own legal
jurisdiction.
rights and interests and cannot rest his
10. Removal of Cases O36, 102, 107(7) claim to relief on the legal rights or inter-
ests of third parties, a plaintiff’s claim
To prove fraudulent joinder that was
must be more than a generalized grievance
intended to defeat removal, the removing
that is pervasively shared by a large class
party must present sufficient evidence that
of citizens, and, in statutory cases, the
a plaintiff could not have established a
plaintiff’s claim must fall within the zone of
cause of action against non-diverse defen-
interests regulated by the statute in ques-
dants under state law; however, if there is
tion.
a colorable basis for predicting that a
plaintiff may recover against non-diverse 16. States O168.5
defendants, court must remand the action Local public officials had not suffered
to state court. legally cognizable injury sufficient to con-
fer standing to bring action against tobac-
11. Removal of Cases O107(7) co manufacturers, on behalf of state and
On claim of fraudulent joinder that state taxpayers, that sought recovery of
was intended to defeat removal, the dis- money expended by state to treat citizens
trict court must resolve all disputed ques- who suffered from tobacco-related illnesses
tions of fact and ambiguities in the control- and diseases, as officials had suffered no
ling state law in favor of the non-removing injury that was distinct from injury shared
party, and all doubts as to the propriety of by all taxpayers and public employees,
removal are resolved in favor of remand. and, even if officials would have standing
490 183 FEDERAL REPORTER, 3d SERIES

under state law, that fact would not confer Phillip J. Campanella (briefed), Calfee,
standing in federal court. Halter & Griswold, Cleveland, Ohio, for
Defendants–Appellees Brown & William-
17. Federal Courts O433
son Tobacco Corporation, Batus, Inc., Ba-
Standing to sue in any federal Article tus Holding, Inc.
III court is a federal question which does
not depend on the party’s prior standing in Diane P. Chapman, Baker & Hostetler,
state court. Cleveland, Ohio, for Defendant–Appellee
Philip Morris, Inc.
18. States O168.5
Local public officials did not allege Mary M. Bittence, Diane P. Chapman
sufficiently redressable injury to demon- (briefed), Baker & Hostetler, Cleveland,
strate their standing to bring action Ohio, Daniel K. Webb (briefed), Thomas J.
against tobacco manufacturers, on behalf Frederick (briefed), Kevin J. Narko
of state and state taxpayers, that sought (briefed), Winston & Strawn, Chicago, Illi-
recovery of money expended by state to nois, for Defendant–Appellee Philip Morris
treat citizens who suffered from tobacco- Companies, Inc.
related illnesses and diseases, since any
remedy for ‘‘tax burden’’ injury was sub- Tyler L. Mathews (briefed), Kenneth J.
ject to power of state legislative and execu- Walsh (briefed), McDonald, Hopkins,
tive branches to decrease state taxes or Burke & Haber, Cleveland, Ohio, for De-
issue tax refund. fendants–Appellees Liggett & Myers, Inc.,
19. Removal of Cases O102 Liggett Group, Inc., Brooke Group, Ltd.
Alleged futility of remand to state Susan Dumay Wolfe (briefed), Shook,
court does not negate requirement that Hardy & Bacon, Kansas City, Missouri,
removed action be remanded when district Patrick M. McLaughlin (briefed),
court lacks subject matter jurisdiction. 28 McLaughlin & McCaffrey, Cleveland,
U.S.C.A. § 1447(c).
Ohio, for Defendants–Appellees Lorillard
Tobacco Company, Lorillard, Inc.
Jack D. Maistros (argued and briefed), Steven D. Bell (briefed), Ulmer &
Thomas M. Wilson (briefed), John R. Cli- Berne, Cleveland, Ohio, for Defendant–Ap-
maco (briefed), Climaco, Climaco, Lefkow-
pellee U.S. Tobacco Company.
itz & Garofoli, Cleveland, Ohio, Stanley M.
Chesley, Waite, Schneider, Bayless & Thomas J. Collin (briefed), Thompson,
Chesley, Cincinnati, Ohio, for Plaintiffs– Hine & Flory, Cleveland, Ohio, for Defen-
Appellants Thomas J. Coyne, Jr., Timothy dants–Appellees UST, Inc, Council for To-
F. Hagan. bacco Research—U.S.A., Inc.
John Winship Read, Vorys, Sater, Sey-
mour & Pease, Cleveland, Ohio, for Defen- Charna E. Sherman (briefed), David J.
dant–Appellee American Brands, Inc. Michalski (briefed), Hahn, Loeser &
Parks, Cleveland, Ohio, for Defendant–Ap-
Percy Squire, Bricker & Eckler, Colum-
pellee Tobacco Institute, Inc.
bus, Ohio, for Defendant–Appellee B.A.T.
Industries P.L.C. Eric S. Brown (briefed), Catherine E.
Theodore M. Grossman (argued and Huston (briefed), Michael J. Renner (ar-
briefed), Dennis L. Murphy (briefed), gued), Simon B. Karas, Assistant Attorney
Jones, Day, Reavis & Pogue, Cleveland, General (briefed), Office of the Attorney
Ohio, for Defendants–Appellees R.J. Reyn- General of Ohio, Columbus, Ohio, for Ami-
olds Tobacco Company, RJR Nabisco, Inc. cus Curiae Betty D. Montgomery.
 COYNE v. AMERICAN TOBACCO CO. 491
Cite as 183 F.3d 488 (6th Cir. 1999)
Before: BOGGS, CLAY, and physical injury as a result of Defendants’
GODBOLD,* Circuit Judges. conduct. Instead, Plaintiffs alleged injury
on behalf of the State of Ohio on the
OPINION theory that the state had expended sums
CLAY, Circuit Judge. of money to pay for the health care of
Ohio citizens due to tobacco-attributable
Plaintiffs–Appellants, Thomas J. Coyne,
illnesses. Specifically, Plaintiffs seek re-
Jr. and Timothy F. Hagan, on behalf of the
imbursement of the public treasury pursu-
State of Ohio and all Ohio taxpayers, ap-
ant to twelve state law causes of action: (i)
peal from the order entered by the district
breach of a ‘‘special duty’’ to render ser-
court dismissing this taxpayer action for
vices for the protection of the public
lack of standing. Plaintiffs seek recovery
health; (ii) consumer fraud; (iii) restitu-
of money expended by the State of Ohio to
tion to the state and taxpayers of Ohio;
treat Ohio citizens who suffer from nico-
(iv) unjust enrichment; (v) conspiracy to
tine addiction and other tobacco-related
restrain and suppress research and the
illnesses and diseases. Plaintiffs assign
dissemination of information as to the
error to the district court’s decision to
harmful effects of smoking; (vi) violation
exercise subject matter jurisdiction over
of Ohio consumer protection statutes; (vii)
this action exclusively alleging state law
breach of express warranty; (viii) breach
causes of action, and contend that the dis-
of implied warranty; (ix) strict product
trict court erroneously concluded that
liability; (x) fraud and deceit; (xi) negli-
Plaintiffs lacked standing to sue on the
gent misrepresentation; and (xii) negli-
basis of their alleged ‘‘tax burden’’ injury.
gence. In addition, Plaintiffs asserted a
For the reasons set forth below, we AF-
cause of action for equitable, injunctive
FIRM the district court’s decision.
and/or declaratory relief. In essence,
Plaintiffs’ suit is premised upon the belief
I.
that Defendants have been unjustly en-
On September 16, 1996, Plaintiffs, two riched at the expense of the State of Ohio,
locally elected Ohio public officials,1 filed a and that Defendants have unlawfully shift-
class action lawsuit against Defendants, ed the financial responsibility for their
various out-of-state tobacco manufacturers conduct to the state and ultimately the
and in-state tobacco wholesalers and re- taxpayers.
tailers, in the Court of Common Pleas,
Cuyahoga County, Ohio, alleging that De- On October 16, 1996, Defendants re-
fendants were knowledgeable about the moved this case to federal district court on
addictiveness of nicotine, yet conspired to the basis of diversity jurisdiction pursuant
manipulate the level of nicotine in ciga- to 28 U.S.C. § 1332. Defendants alleged
rettes in order to create and sustain that Plaintiffs had fraudulently joined the
smokers’ addiction to tobacco products. Ohio wholesale and retail tobacco suppliers
Plaintiffs did not file suit in their represen- in order to destroy diversity jurisdiction.2
tative capacity or claim that they them- In response, Plaintiffs filed a motion to
selves are addicted to or have suffered any remand the case to state court on Novem-
* The Honorable John C. Godbold, Circuit 2. The tobacco wholesalers and retailers are
Judge of the United States Court of Appeals Novelart Manufacturing, EBY–Brown Co.,
for the Eleventh Circuit, sitting by designa- Kroger Co., and Riser Foods, Inc. These De-
tion. fendants are Ohio corporations or corpora-
tions whose principal places of business are
1. Plaintiff Thomas J. Coyne is the duly elected in Ohio, and whose business includes the pro-
mayor of the City of Brook Park, Ohio, and motion, marketing, sale and distribution of
Plaintiff Timothy F. Hagan is one of three cigarettes across the State of Ohio. These De-
duly elected County Commissioners of Cuya- fendants do not design, manufacture, or pack-
hoga County, Ohio. age cigarettes.
492 183 FEDERAL REPORTER, 3d SERIES

ber 15, 1996, asserting that no Defendant plaint, and must construe the complaint in
had been fraudulently joined, and there- favor of the complaining party.’’ Warth v.
fore, the district court should remand the Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45
action for lack of subject matter jurisdic- L.Ed.2d 343 (1975). This Court reviews
tion. The district court denied Plaintiffs’ de novo the district court’s decision to
motion to remand on November 3, 1997, dismiss a claim for lack of standing. See
finding in relevant part that the ‘‘local’’ Ohio Ass’n of Indep. Schools v. Goff, 92
Defendants had been fraudulently joined F.3d at 419, 421 (6th Cir.1996).
in the action.
[4] Additionally, this Court reviews de
While the remand motion was pending novo a district court’s decision on subject
before the district court, Plaintiffs filed an matter jurisdiction. See Certain Interest-
amended complaint on January 9, 1997. ed Underwriters at Lloyd’s London, Eng-
Defendants in turn filed a joint motion to land v. Layne, 26 F.3d 39, 41 (6th Cir.
dismiss the amended complaint on January 1994). However, we must respect the dis-
21, 1997, asserting that Plaintiffs lacked trict court’s factual findings that are the
standing to bring a taxpayer suit against basis of a jurisdictional determination un-
the tobacco defendants as Plaintiffs were less clearly erroneous. See Ohio Nat’l
not directly harmed by any act of Defen- Life Ins. Co. v. United States, 922 F.2d
dants and that Plaintiffs could not sue on 320, 326 (6th Cir.1990).
behalf of the State of Ohio. After briefing
by the parties, and submission of an ami- III.
cus curiae brief on behalf of the Ohio
Attorney General, the district court issued [5] Plaintiffs assert that this action,
a Memorandum Opinion and Order on originally filed in state court and involving
February 12, 1998, granting Defendants’ only issues of state law, should be adjudi-
motion to dismiss Plaintiffs’ amended com- cated in state court. Plaintiffs argue that
plaint in its entirety. The district court the district court erred in denying their
determined that Plaintiffs lacked standing motion to remand the case to state court
to bring suit on behalf of the State of Ohio because Plaintiffs pleaded a viable cause of
or as an aggrieved taxpayer because their action against non-diverse Defendants.
only claimed injury, the ‘‘tax burden’’ inju- Plaintiffs therefore contend that the dis-
ry, was not direct, but merely a general- trict court lacked subject matter jurisdic-
ized grievance shared by all taxpayers and tion to hear their claims because complete
not likely to be redressed by the relief diversity between the parties did not exist
requested. Plaintiffs filed a timely notice at the time of removal. We disagree.
of appeal to this Court on March 12, 1998. [6–9] When reviewing the denial of a
motion to remand a case to state court, we
II. first look to determine whether the case
[1–3] A complaint will be dismissed for was properly removed to federal court.
failure to state a claim only when ‘‘it ap- See Ahearn v. Charter Township of
pears beyond doubt that the plaintiff can Bloomfield, 100 F.3d 451, 453 (6th Cir.
prove no set of facts in support of his claim 1996). When an action is removed based
which would entitle him to relief.’’ Conley on diversity, we must determine whether
v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 complete diversity exists at the time of
L.Ed.2d 80 (1957); Wright v. MetroHealth removal. Indeed, ‘‘[d]iversity jurisdiction
Med. Ctr., 58 F.3d 1130, 1138 (6th Cir. attaches only when all parties on one side
1995). ‘‘For purposes of ruling on a mo- of the litigation are of a different citizen-
tion to dismiss for want of standing, both ship from all parties on the other side of
the trial and reviewing courts must accept the litigation.’’ SHR Ltd. Partnership v.
as true all material allegations of the com- Braun, 888 F.2d 455, 456 (6th Cir.1989);
 COYNE v. AMERICAN TOBACCO CO. 493
Cite as 183 F.3d 488 (6th Cir. 1999)
accord Strawbridge v. Curtiss, 3 Cranch as suppliers pursuant to Ohio Rev.Code
267, 7 U.S. 267, 2 L.Ed. 435 (1806). In § 2307.78(A)(1), either for the failure to
this regard, a party ‘‘seeking to bring a warn about the alleged nicotine defect or
case into federal court carries the burden for the negligent sale of cigarettes, Plain-
of establishing diversity jurisdiction.’’ tiffs do not allege that the wholesalers and
Layne, 26 F.3d at 41; Her Majesty The retailers knew of the so-called nicotine de-
Queen in Right of the Province of Ontario fect any sooner than members of the gen-
v. City of Detroit, 874 F.2d 332, 339 (6th eral public; thus, the wholesalers and re-
Cir.1989) (stating that ‘‘[t]he party seeking
tailers are excluded from product liability
removal bears the burden of establishing
under § 2307.78(A)(1). See Gawloski v.
its right thereto’’).
Miller Brewing Co., 96 Ohio App.3d 160,
[10, 11] Moreover, this Court has rec- 644 N.E.2d 731, 734 (1994) (noting that
ognized that fraudulent joinder of non- there is no duty to warn of ‘‘dangers [that]
diverse defendants will not defeat removal are generally known and recognized by the
on diversity grounds. See Alexander v. ordinary consumer’’); Sapp v. Stoney
Electronic Data Sys. Corp., 13 F.3d 940, Ridge Truck Tire, 86 Ohio App.3d 85, 619
949 (6th Cir.1994); accord Triggs v. John N.E.2d 1172, 1180–81 (1993) (finding that a
Crump Toyota, Inc., 154 F.3d 1284, 1287 supplier is liable for failure to warn only
(11th Cir.1998) (noting that ‘‘[f]raudulent when he knows or should know of an al-
joinder is a judicially created doctrine that
leged defect). Moreover, the Ohio whole-
provides an exception to the requirement
sale and retail suppliers could not be held
of complete diversity’’). To prove fraudu-
liable under § 2307.78(A)(1) since they
lent joinder, the removing party must
never made any representations about cig-
present sufficient evidence that a plaintiff
arettes or nicotine, and accordingly could
could not have established a cause of ac-
not be liable for making any advertised
tion against non-diverse defendants under
state law. See Alexander, 13 F.3d at 949. representations regarding the dangers of
However, if there is a colorable basis for nicotine in cigarettes. See Gawloski, 644
predicting that a plaintiff may recover N.E.2d at 734 (stating that a supplier may
against non-diverse defendants, this Court be liable when ‘‘through its advertised rep-
must remand the action to state court. resentations, unrealistically minimizes the
The district court must resolve ‘‘all disput- known dangers or implies that the dangers
ed questions of fact and ambiguities in the do not exist’’). Hence, under Ohio law,
controlling TTT state law in favor of the there was no reasonable basis for predict-
non removing party.’’ Id. All doubts as to ing that, on the facts alleged, the local
the propriety of removal are resolved in Defendants could be held liable for negli-
favor of remand. See id. gence. Accordingly, because Plaintiffs
Upon examination of the record, we find failed to plead viable state law causes of
that there was sufficient evidence for the action against the local Defendants, the
district court to conclude that Plaintiffs district court correctly denied Plaintiffs’
could not have established a cause of ac- remand motion on the basis of fraudulent
tion against the non-diverse Defendants joinder.3 See Alexander, 13 F.3d at 949
under state law, thereby permitting re- (noting that a party is fraudulently joined
moval of this action to federal court. if there is ‘‘no reasonable basis for predict-
While Plaintiffs’ complaint alleged that the ing that the state law might impose liabili-
local Defendants were liable to Plaintiffs ty on the facts involved’’).
3. Because we conclude that the district court appeal their claim challenging the district
properly denied the motion to remand, we court’s decision to deny Plaintiffs’ remand
need not address Defendants’ argument that motion.
Plaintiffs have failed to properly preserve for
494 183 FEDERAL REPORTER, 3d SERIES

IV. [15] In addition to the constitutional

In their next assignment of error, Plain- requirements, a plaintiff must also satisfy
tiffs claim that the district court errone- three prudential standing restrictions.
ously determined that they lacked stand- First, a plaintiff must ‘‘assert his own legal
ing to bring this taxpayer action, as they rights and interests, and cannot rest his
have authority to sue because they have claim to relief on the legal rights or inter-
made contributions as taxpayers to Ohio’s ests of third parties.’’ Warth, 422 U.S. at
General Revenue Fund, and, as public em- 499, 95 S.Ct. 2197 (citations omitted). Sec-
ployees, to the Public Employees Retire- ond, a plaintiff’s claim must be more than
ment Fund (‘‘PERS’’). Plaintiffs claim a ‘‘generalized grievance’’ that is perva-
that as taxpayers they have had to pay sively shared by a large class of citizens.
higher taxes to these funds, and thus the See Valley Forge, 454 U.S. at 474–75, 102
Ohio treasury, for expenditures made by S.Ct. 752. Third, in statutory cases, the
the State of Ohio for smoking-related ill- plaintiff’s claim must fall within the ‘‘zone
nesses. Because of their ‘‘special interest’’ of interests’’ regulated by the statute in
in these funds, Plaintiffs contend that they question. See id. These additional re-
have standing to assert a claim against strictions enforce the principle that, ‘‘as a
Defendants by virtue of their ‘‘tax burden’’ prudential matter, the plaintiff must be a
injury. We disagree. proper proponent, and the action a proper
[12–14] Standing is ‘‘the threshold vehicle, to vindicate the rights asserted.’’
question in every federal case.’’ Warth, Pestrak v. Ohio Elections Comm’n, 926
422 U.S. at 498, 95 S.Ct. 2197. The Su- F.2d 573, 576 (6th Cir.1991).
preme Court has stated that the standing
requirement limits federal court jurisdic- A.
tion to actual controversies so that the
judicial process is not transformed into ‘‘ ‘a [16] An alleged injury must be ‘‘direct’’
vehicle for the vindication of the value to constitute an injury sufficient to support
interests of concerned bystanders.’ ’’ Val- standing. See Taub v. Commonwealth of
ley Forge Christian College v. Americans Kentucky, 842 F.2d 912, 918 (6th Cir.1988).
United for Separation of Church & State, Article III requires that a plaintiff show
Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 that he ‘‘ ‘personally has suffered some
L.Ed.2d 700 (1982) (quoting United States actual or threatened injury’ ’’ as a result of
v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. the allegedly illegal conduct of the defen-
2405, 37 L.Ed.2d 254 (1973)). To satisfy dant. Valley Forge, 454 U.S. at 472, 102
Article III’s standing requirement, a plain- S.Ct. 752 (quoting Gladstone, Realtors v.
tiff must have suffered some actual or Village of Bellwood, 441 U.S. 91, 99, 99
threatened injury due to the alleged illegal S.Ct. 1601, 60 L.Ed.2d 66 (1979)). Here,
conduct of the defendant; the injury must Plaintiffs have not suffered a legally cogni-
be ‘‘fairly traceable’’ to the challenged ac- zable injury sufficient to confer standing.
tion; and there must be a substantial like- Although Plaintiffs contend that they have
lihood that the relief requested will re- a ‘‘special interest’’ in state funds, and thus
dress or prevent the plaintiff’s injury. See bear a ‘‘tax burden,’’ Plaintiffs have not
Valley Forge, 454 U.S. at 472, 102 S.Ct. suffered an injury that is distinct from the
752. Hence, the ‘‘irreducible minimum’’ injury shared by all Ohio taxpayers and
constitutional requirements for standing public employees. See ASARCO Inc. v.
are proof of injury in fact, causation, and Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037,
redressability. See id. A plaintiff bears 104 L.Ed.2d 696 (1989) (finding that tax-
the burden of demonstrating standing and payers do not have a sufficient stake in a
must plead its components with specificity. controversy to support standing ‘‘where
See id. their own injury is not distinct from that
 COYNE v. AMERICAN TOBACCO CO. 495
Cite as 183 F.3d 488 (6th Cir. 1999)
suffered in general by other taxpayers or Phillips Petroleum Co. v. Shutts, 472 U.S.
citizens’’). Furthermore, Plaintiffs do not 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628
allege facts to distinguish themselves from (1985). This Court has explained that
all other Ohio taxpayers. Indeed, Plain- ‘‘standing is a matter of federal law, not
tiffs’ injury is not direct or particularized state TTT law.’’ City Communications,
to Plaintiffs, as they seek damages not for Inc. v. City of Detroit, 888 F.2d 1081, 1086
any personal injuries, but rather for the (6th Cir.1989).
injury to others—individual smokers and Moreover, none of the cases upon which
the State of Ohio. Significantly, the Su- Plaintiffs rely recognize a right by a state
preme Court has recognized that ‘‘a plain- taxpayer to bring an action against third
tiff who complain[s] of harm flowing mere- parties whose conduct causes the legal
ly from the misfortunes visited upon a payout of public funds, thereby causing
third person by the defendant’s acts [is] citizens’ taxes to increase. Rather, the
generally said to stand at too remote a cases cited by Plaintiffs are primarily all
distance to recover.’’ Holmes v. Securities
actions in which taxpayers sought to pre-
Investor Protection Corp., 503 U.S. 258,
vent a government entity from making an
268–69, 112 S.Ct. 1311, 117 L.Ed.2d 532
alleged illegal expenditure of public funds.
(1992). Thus, under settled law, the al-
Indeed, every common law taxpayer action
leged ‘‘tax burden’’ injury is not an injury
that has been recognized by the Ohio
in fact sufficient to confer standing.
courts has involved allegations of illegal or
Plaintiffs do not directly challenge the unauthorized expenditure of public funds,
finding that their ‘‘tax burden’’ is merely conduct by a public officer in excess of
derivative, and therefore insufficient to es- legal authority, or failure of a public officer
tablish an injury in fact. They instead to perform a ministerial duty. See Mas-
claim that Ohio common law recognizes terson, 123 N.E.2d at 2 (finding that the
that they have standing to prosecute this capacity to bring a common law taxpayer
action since they have a ‘‘special interest’’ action arises ‘‘when public officers attempt
in state funds. As support, Plaintiffs cite to make an illegal expenditure of public
Ohio cases involving taxpayer suits against money, or to create an illegal debt’’). In
the state government to enjoin alleged ille- this case, however, Plaintiffs do not allege
gal expenditures. See, e.g., State ex rel. that there has been an illegal expenditure
Masterson v. Ohio State Racing Comm’n, of public funds by the government. More-
162 Ohio St. 366, 123 N.E.2d 1, 2 (1954) over, Plaintiffs never joined the State of
(action to restrain State Racing Commis- Ohio, any State official, or any governmen-
sion from expending state funds and issu- tal authority as a party. Plaintiffs fail to
ing permits for horse racing competitions); cite, and we could not identify, any Ohio
State ex rel. Stubbs v. Wallace, 140 Ohio precedent where a taxpayer had standing
St. 166, 42 N.E.2d 893, 894 (1942) (taxpay- to enforce the law directly against a third
er action to compel the registrar of motor party, as Plaintiffs attempt here. Thus,
vehicles to collect motor vehicle license we find that Plaintiffs do not have a sepa-
taxes); State ex rel. Struble v. Davis, 135 rate basis for standing based upon Ohio
Ohio St. 593, 22 N.E.2d 81, 82 (1939) (tax- common law.
payer action to compel the tax commission-
er to value certain railroad properties). B.
[17] We find Plaintiffs’ reliance on [18] Not only must a plaintiff’s injury
Ohio precedent misplaced. Citation to be direct, a plaintiff must show that a
Ohio cases is unpersuasive, as ‘‘[s]tanding favorable court decision will redress the
to sue in any Article III court is TTT a injury. See Valley Forge, 454 U.S. at 472,
federal question which does not depend on 102 S.Ct. 752 (recognizing that a plaintiff
the party’s prior standing in state court.’’ lacks standing if the plaintiff’s alleged inju-
496 183 FEDERAL REPORTER, 3d SERIES

ry is not ‘‘redressable’’ by a favorable Defendants for lack of standing. We re-

court decision). Plaintiffs’ complaint sug- ject Defendants’ argument since the futili-
gests no likelihood that victory in this suit ty of a remand to state court does not
would result in either their receipt of a tax provide an exception to the plain and un-
refund or a reduction in the tax bill for ambiguous language of § 1447(c). Indeed,
Ohio citizens generally. Reimbursement the Supreme Court noted that ‘‘ ‘the literal
of the public treasury would not necessari- words of § 1447(c) TTT on their face, give
ly redress Plaintiffs’ claimed ‘‘tax burden’’ TTT no discretion to dismiss rather than
injury because even if Plaintiffs secured a remand an action.’ ’’ International Pri-
favorable judgment, the power to decrease mate Protection League v. Administrators
state taxes or issue a tax refund rests
of Tulane Educ. Fund, 500 U.S. 72, 89, 111
within the province of the legislative and
S.Ct. 1700, 114 L.Ed.2d 134 (1991) (quot-
executive branches of the State of Ohio. As
ing Maine Ass’n of Interdependent Neigh-
the district court correctly pointed out, it
borhoods v. Commissioner, Maine Dep’t of
is the state’s decision to determine how to
Human Servs., 876 F.2d 1051, 1054 (1st
utilize a recovery of state funds. Plain-
tiffs’ injuries are not ‘‘redressable,’’ as Cir.1989)). Other circuits, relying on In-
Plaintiffs cannot establish that a favorable ternational Primate, have held that there
court decision is likely to remedy the al- is no implicit futility exception hidden be-
leged violation. hind the plain language of § 1447(c). See
University of South Ala. v. American To-
V. bacco Co., 168 F.3d 405, 410 (11th Cir.
In sum, we find that Plaintiffs do not 1999) (recognizing that § 1447(c) ‘‘is man-
have standing to bring this action on be- datory and may not be disregarded based
half of the State of Ohio or Ohio taxpayers. on speculation about the proceeding’s futil-
Plaintiffs have not met the minimal, consti- ity in state court’’); Bromwell v. Michigan
tutional requirements for standing since Mut. Ins. Co., 115 F.3d 208, 213–14 (3d
they have not shown a particularized inju- Cir.1997) (holding that a federal court that
ry, or that their alleged injury will be lacks jurisdiction over an action removed
redressed by a verdict in their favor.4 Ac- from state court ‘‘must remand and not
cordingly, this Court lacks subject matter dismiss on the ground of futility’’); Roach
jurisdiction and this action must be re- v. West Virginia Reg’l Jail & Correctional
manded to the state court from which it Facility Auth., 74 F.3d 46, 49 (4th Cir.
was removed. See 28 U.S.C.A. § 1447(c) 1996) (holding that in the absence of feder-
(West Supp.1999) (stating that ‘‘[i]f at any al subject matter jurisdiction over a re-
time before final judgment it appears that moved action, the case shall be remanded
the district court lacks subject matter jur- to state court, rather than dismissed);
isdiction, the case shall be remanded’’). Smith v. Wisconsin Dep’t of Agric., Trade
[19] Despite the express language of and Consumer Protection, 23 F.3d 1134,
§ 1447(c), Defendants contend that re- 1142 (7th Cir.1994) (stating that there is no
mand to state court in this case would be futility exception to § 1447(c)). Hence, in
futile, as the state court, as a matter of a removed action, upon determination that
state law, would dismiss the claims against a federal court lacks jurisdiction, remand
4. Alternatively, Defendants claim that this manufacturers and suppliers to recover health
matter has been rendered moot as a result of care costs allegedly incurred by the State of
settlement agreements entered into by the Ohio due to smoking-related diseases. We do
State of Ohio and Defendants in State ex rel. not reach this issue of mootness, however,
Montgomery v. Phillip Morris, Inc., No. 97 because we conclude that Plaintiffs lacked
CVH–05–5114 (Franklin Cty. Ct. Nov. 25, standing to bring this taxpayer action, in any
1998), to resolve, among other things, Ohio’s event resolving this appeal in favor of Defen-
suit against Defendants and other tobacco dants.
 MidMICHIGAN REG. MED. CENTER—CLARE v. PROF. EMP. 497
Cite as 183 F.3d 497 (6th Cir. 1999)
to state court is mandatory even if it ap- arbitrator was within his authority in con-
pears that remand would be futile. cluding that, under collective bargaining
agreement (CBA) and work rules, nurse
VI. had committed only a Group I violation,
rather than more serious Group II viola-
For the reasons set forth above, we
tion, and (2) requiring hospital to reinstate
agree with the district court’s holding that
nurse who was found to have been negli-
Plaintiffs lacked standing. However, the
gent did not violate Michigan public policy
district court erred when it dismissed
of ensuring safe and competent nursing
Plaintiff’s action, as opposed to remanding
care.
Plaintiffs’ claims against Defendants to
state court in accordance with Internation- Reversed and remanded with instruc-
al Primate. Therefore, we REMAND this tions.
case to the district court with instructions
to remand this action to state court. 1. Federal Courts O776, 850.1
Court of Appeals reviews district

,
court’s findings of fact for clear error and
its conclusions of law de novo.
2. Labor Relations O476
Both Court of Appeals and district
court were required to defer to arbitrator’s
findings of fact and interpretations of col-
MIDMICHIGAN REGIONAL MED-
lective bargaining agreement (CBA),
ICAL CENTER–CLARE, Plain-
where CBA made arbitrator’s decision ‘‘fi-
tiff–Appellee,
nal and binding’’ on both parties.
v.
3. Labor Relations O483
PROFESSIONAL EMPLOYEES DIVI-
Whether arbitrator’s interpretation of
SION OF LOCAL 79, SERVICE EM-
collective bargaining agreement (CBA) ex-
PLOYEE INTERNATIONAL UNION,
ceeded his authority, and whether arbitra-
AFL–CIO, Defendant–Appellant.
tion award violated public policy, were
No. 98–1464. questions of law, which Court of Appeals
would review de novo.
United States Court of Appeals,
Sixth Circuit. 4. Labor Relations O462
Argued: June 9, 1999. Arbitrator’s decision is binding on
parties so long as it draws its essence from
Decided and Filed: July 12, 1999. collective bargaining agreement (CBA).
5. Labor Relations O479
Employer-hospital brought suit seek- As long as arbitrator is even arguably
ing to set aside arbitrator’s decision order- acting within scope of his authority, that a
ing hospital to reinstate staff nurse. The court is convinced he committed serious
United States District Court for the East- error does not suffice to overturn his deci-
ern District of Michigan, Robert H. Cle- sion.
land, J., vacated arbitration decision. Un-
ion appealed. The Court of Appeals, 6. Labor Relations O462
Moore, Circuit Judge, held that: (1) after After finding that nurse’s conduct
finding that nurse’s conduct when working while working with defibrillation machine
with defibrillation machine was negligent was negligent but did not amount to gross
but did not amount to gross negligence, negligence, arbitrator was within his au-