United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Sr., District Judge.
This matter comes before the Court on Plaintiffs Dennis Brian Anders, Lara Anders, Regina Autrey, Diana Banks-Joiner, Catherine Barbee, Mark Barbee, Eula Berry, Linda Betcher, Sheila Bottorf, Margaret Brown, Eddie Brown, Bradley Burdette, Westley Christian, Tracy Christian, Lisa Conroy, Jeffrey Conroy, Linda Coombs, Donald Coombs, Carolyn Davis, Rickey Davis, Joseph Dressler, Jr., Mark Durand, Tracie Durand, Angela Edwards, Michael Heller, John Fairley, Clara Bridget-Fairley, John Fowler, Jennifer Fowler, Leslie Foxworth, Karen Freeman, Mell Furman, Richard Furman, Julia Gabino, Clifton Groves, Horace Harshaw, Ronald Hatchell, Sondra Hatcher, Jason Hatcher, Cynthia Hatcher, Anthony Hawkins, Delores Hawkins, Jerome Hicks, Tammy Jeans, Jason Jeans, Lorenzo Johnson, Marion Johnson, Amanda Keeton, Trisha Keim, Wesley Kercheval, Douglas Kolhoff, Jason Kost, Molly Savage-Kost, Walter Lacroix, Steven Lenhart, Tammy Jones-Lenhart, Mark Lester, Mozell Lynch, Mayme Martin, Sophronia McCord, Gwendolyn Menard, Joseph Fleming, Dennis Mojica, Grismilda Mojica, William Muirhead, Jenny Muirhead, Juvenal Nieves, Caldonia Patrick, Donna Poole, Joey Poole, Lerisce Powell, Erick Powell, Doris Randle, Walter Randle, Jr., Eddie Roberson, Jessica Roberson, Kendra Williams Russell-El, John Russell-El, Jennifer Shanedling, Sharon Sharp, Scott Shepherd, Tammy Lynn Shepherd, Stephen Sparagno, Margie Sparagno, Wilbur Spaulding, Richard Steinman, Jr., Sandra Steinman, Dellarine Takieddine, Cynthia Taylor, Linda Tinney, James Tinney, Trevor Towne, Reggie Waddle, Barbara Waddle, Sheryl Jacqueline Whitmire, Daniel Williams, Leah Winzer, Christopher Winzer, and Thomas Yellowwolf, Jr.'s Motion to Remand [ECF No. 15].
On December 26, 2013, Plaintiffs filed a Petition against Defendants Medtronic, Inc., Medtronic Sofamor Danek USA, Inc., and Does 1 through 100 in the Circuit Court of the City of St. Louis, Missouri. The Petition alleges injuries related to the Infuse® Bone Graft and LT Cage® Device (Infuse®), a medical device designed, manufactured, and sold by Defendants.
Infuse® is a "Class III" device, that is, a device "that presents a potentially unreasonable risk of injuring patients or that is used to sustain life." In re Medtronic, Inc., Sprint Fidelis Leads Prods. Liab. Litig., 623 F.3d 1200, 1203 (8th Cir. 2010) (citing 21 U.S.C. § 360c(a)(1)(C)). Class III devices are approved by the United States Food and Drug Administration (FDA) through a rigorous Premarket Approval (PMA) process, after assurances from the manufacturer that the device is safe and effective. Id. The PMA process typically involves a "multivolume application, " including, among other things, "full reports of all studies and investigations of the device's safety and effectiveness that have been published or should reasonably be known to the applicant, " "a full description of the methods used in, and the facilities and controls used for, the manufacture, processing, and, when relevant, packing and installation of, such device, " and "a specimen of the proposed labeling." Riegel v. Medtronic, Inc., 552 U.S. 312, 318 (2008) (citing 21 U.S.C. § 360e(c)(1)) (internal quotations omitted).
According to Plaintiffs, the FDA has approved Infuse® for spinal fusion surgeries performed from an anterior approach at specific levels of the spine. The Petition alleges Defendants engaged in a fraudulent marketing and promotional scheme to advertise illegal and dangerous uses of Infuse®. Plaintiffs claim, as a result of Defendants' fraudulent conduct, they underwent surgeries in which Infuse® was used in certain "off label, " or unauthorized, ways, causing various injuries. The Petition asserts fifteen state law causes of action: (1) negligence, (2) negligence per se, (3) negligent misrepresentation, (4) strict liability for failure to warn, (5) strict liability for a design defect, (6) strict liability for a manufacturing defect, (7) common law fraud, (8) constructive fraud, (9) fraudulent concealment, (10) breach of express warranty, (11) breach of implied warranty, (12) violation of consumer protection laws, (13) violation of the Missouri Merchandising Practices Act, (14) loss of consortium, and (15) gross negligence. Plaintiffs seek punitive damages. Of the 99 individuals named as Plaintiffs in the Petition, 98 are diverse from Defendants. Defendant Medtronic, Inc. is incorporated under the laws of, and maintains its principal place of business in, Minnesota. One Plaintiff, Jennifer Shanedling, is a citizen of Minnesota and therefore nondiverse from Defendant Medtronic, Inc.
On February 3, 2014, Defendants filed a Notice of Removal with this Court, asserting diversity jurisdiction under 28 U.S.C. § 1332, and federal question jurisdiction under 28 U.S.C. § 1331. Plaintiffs moved to remand the case. On April 24, 2014, this Court remanded the case to the Circuit Court of the City of St. Louis from which it was removed. Anders v. Medtronic, Inc., No. 4:14-cv-00194-ERW, 2014 WL 1652352 (E.D. Mo. Apr. 24, 2014). On September 29, 2014, Defendants again filed a Notice of Removal with this Court, asserting jurisdiction under 28 U.S.C. § 1332 through the Class Action Fairness Act ("CAFA") [ECF No. 1]. Plaintiffs now move to remand the case.
A defendant may remove a case to federal court only if the claim could have been originally brought in federal court. 28 U.S.C. § 1441; Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Generally, the party seeking removal and opposing remand bears the burden of establishing federal subject matter jurisdiction. In re Business Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th Cir. 1993). The party asserting federal diversity jurisdiction has the burden of proving diversity by a preponderance of the evidence. In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). "All doubts about federal jurisdiction should be resolved in favor of remand to state court." Prempro Prods. Liab. Litig., 591 F.3d at 620.
Defendants contend federal subject matter jurisdiction is met because Plaintiffs have indicated their desire to have three separate cases tried as one, thus qualifying this as a "mass action" under CAFA. The three cases Defendants refer to are the present case, Smith v. Medtronic, Inc., No. 4:13-CV-02220-CEJ, and Hendrich v. Medtronic, Inc., No. 4:14-CV-01635-AGF. All three cases have been removed from the Circuit Court of St. Louis claiming jurisdiction under CAFA as a "mass action." Each case includes just under 100 plaintiffs and the same defendants. Combined, the three cases meet the minimum requirements for CAFA of over 100 plaintiffs, minimum diversity, and $5, 000, 000 recovery, according to Defendants. Plaintiffs seek a remand on the grounds they have never requested a joint trial and Defendants' removal was untimely. For reasons stated infra, the Court finds it lacks jurisdiction, and the case will be remanded.
Plaintiffs argue this case must be remanded because Defendants' Notice of Removal was untimely. 28 U.S.C. § 1446(b)(1) requires a defendant to file a notice of removal within 30 days after defendant receives the pleadings upon which removal is based. The time limit begins when a plaintiff "explicitly discloses she is seeking a remedy that affords a basis for federal jurisdiction." Atwell v. Boston Scientific Corporation, 740 F.3d 1160, 1162 (8th Cir. 2013) (citing Knudson v. Sys. Painters, Inc., 634 F.3d 968, 974 (8th Cir. 2011)). A pleading includes a copy of an amended pleading, motion, order, or other paper. § 1446(b)(3).
Defendants claim Plaintiffs disclosed the basis for removal in Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss ("Opposition"), filed in the Circuit Court of the City of St. Louis on August 22, 2014, when Plaintiffs stated there are common facts, and similar occurrences between the Plaintiffs. Defendants also assert that Plaintiffs' statements against severance of Plaintiffs' claims raise the basis for removal because Plaintiffs' argued that severance would "needlessly multiply the number of judges and juries needed to address the same issue" [ECF No. 1]. Plaintiffs, in contrast, assert there has been no basis for removal because Plaintiffs' have not suggested a proposal to try the three cases together in any pleading, motion, or other paper. In the alternative, Plaintiffs' ...