Five years ago, in Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), the Ninth Circuit ruled that the answer to the question — "When a state statute incorporates a federal statute in defining a violation of state law, is a federal question thereby created?" — was ‛No.“ On October 23, 2007, the court addressed whether this answer has been changed by the intervening decision of the United States Supreme Court in Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005). Answer: Still ‛No,“ at least in the context of a state law cause of action for damages premised on an alleged violation of the ADA. See Martinez v. Del Taco, Inc., 2007 U.S. App. LEXIS 25114 (9th Cir. Oct. 23, 2007). See also our post of June 14, 2007 (state RICO statutes incorporation of federal predicates did not create federal ‛arising under“ jurisdiction).
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