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Polk v. Pfizer, Inc.

United States District Court, E.D. Missouri, Eastern Division

May 1, 2015

DOROTHY POLK, et al., Plaintiffs,
PFIZER, INC., Defendant.


E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Defendant's "Motion to Dismiss the Claims of Out-of-State Plaintiffs" [ECF No. 6], Defendant's "Motion to Stay Pending MDL Transfer" [ECF No. 16], and Plaintiffs' joint Motion to Remand [ECF No. 11].


In February 2015, forty-nine individuals who are citizens of sixteen different states (Missouri, New York, South Carolina, North Carolina, Georgia, Maryland, Wisconsin, Michigan, Florida, Washington, Mississippi, California, New Mexico, Montana, Massachusetts, and Rhode Island) filed this action against Pfizer, Inc. (which is a citizen of New York and Delaware) in the Circuit Court for the City of St. Louis, State of Missouri, alleging injuries caused by the "ingestion" of LIPITOR®, an HMG-CoA reductase inhibitor "prescribed to reduce the amount of cholesterol and other fatty substances in the blood" [ See ECF No. 5]. Plaintiffs allege the use of LIPITOR® "is causally related to the development of type 2 diabetes and/or blood glucose levels diagnostic for type 2 diabetes" [ECF No. 5 at ¶ 65]. According to Plaintiffs' Petition (hereafter "Complaint"), Defendant "negligently, recklessly and/or carelessly marketed, distributed, and/or sold LIPITOR® without adequate instructions or warnings of the drug's serious side effects and unreasonably dangerous risks" [ECF No. 5 at ¶ 71]. The Complaint contains the following seven claims: strict liability; product liability (failure to warn); negligence; breach of express warranty; breach of implied warranty; fraud; and fraudulent concealment.

On March 27, 2015, Defendant filed a Notice of Removal, removing the case to this Court on the basis of diversity, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 [ECF No. 1]. That same day, Defendant filed its Motion to Dismiss [ECF No. 6], arguing the claims of the "out-of-state Plaintiffs" (i.e., those Plaintiffs who are not citizens of Missouri) should be dismissed for lack of personal jurisdiction. Included in these forty-seven out-of-state Plaintiffs are four citizens of New York, and the dismissal of these four Plaintiffs would create complete diversity. On April 13, Plaintiffs filed their Motion to Remand [ECF No. 11], asserting this Court does not have subject matter jurisdiction to hear the case, based on the lack of complete diversity resulting from the presence of the four New York Plaintiffs. Subsequently, Defendant also filed a Motion to Stay [ECF No. 16], in which it asks the Court to issue an Order "staying proceedings in this action pending a decision by the Judicial Panel on Multidistrict Litigation ("JPML") regarding the transfer of this action to MDL No. 2502, In re: Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation (No. II). "


It is within the Court's discretion to determine whether to decide issues of personal or subject matter jurisdiction first. Here, the Court declines to rule on the personal jurisdiction issue first, as the inquiry regarding subject matter jurisdiction is not "arduous." See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999) (recognizing that when the issue of subject matter jurisdiction is straightforward, "expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first").

"A defendant may remove a state law claim to federal court only if the action originally could have been filed there." In re Prempro Products Liability Litigation, 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Circ. 2005)). Diversity jurisdiction under 28 U.S.C. § 1332 requires an amount in controversy greater than $75, 000 and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). "Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship." OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007).

After removal, a plaintiff may seek remand of the case to state court, and the case should be remanded if it appears the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy College, 420 F.3d 763, 768 (8th Cir. 2005). "All doubts about federal jurisdiction should be resolved in favor of remand to state court." In re Prempro, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)).

Fraudulent joinder, which occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal, has long been recognized as an exception to the complete diversity rule. In re Prempro, 591 F.3d at 620 (internal citation omitted). A more recent exception to the complete diversity rule is fraudulent misjoinder, which "occurs when a plaintiff sues a diverse defendant in state court and joins a viable claim involving a nondiverse party, or a resident defendant, even though the plaintiff has no reasonable procedural basis to join them in one action because the claims bear no relation to each other." Id. In such cases, where the claim destroying diversity has no real connection with the controversy involving the claims that would qualify for diversity jurisdiction, some courts have concluded diversity is not actually defeated. Id. Here, in support of its position Plaintiffs' Motion to Remand should be denied, Defendant argues, "Subject Matter Jurisdiction Exists Due to Fraudulent Joinder and Procedural Misjoinder[1]" [ECF No. 21 at 6].

A. Fraudulent Joinder

In seeking the application of fraudulent joinder principles to the present situation, Defendant states, "[T]he Eighth Circuit has not defined fraudulent joinder' to exclude fraudulent joinder of plaintiffs. Although the Eighth Circuit has articulated the fraudulent joinder standard in the context of joinder of defendants, ... it has never suggested that the standard would be improper in the context of joinder of plaintiffs" [ECF No. 21 at 6]. Defendant then points to two Orders from the Eastern District of Missouri, which, according to Defendant, applied fraudulent joinder principles to similar circumstances [ECF No. 21 at 6-7].

Defendant's argument fails to convince this Court such an application of fraudulent joinder principles is necessary or required. As Defendant admits, the Eighth Circuit Court of Appeals has described fraudulent joinder within the context of the potentially-improper joining of defendants. See In re Prempro, 591 F.3d at 620 ("Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal.") (citing Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003)) (emphasis added). Given this definition by the Eighth Circuit, and absent a larger trend by ...

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