United States District Court, E.D. Missouri, Eastern Division
R.A., a minor by and through his Next Friend EVA ANDERSON, et al., Plaintiffs,
ABBOTT LABORATORIES, Defendant.
MEMORANDUM AND ORDER OF REMAND
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Abbott
Laboratories' Motion to Dismiss for Lack of Personal
Jurisdiction and Failure to State a Claim (Doc. No. 4) and
Plaintiffs' Motion to Remand (Doc. No. 9). The motions
are fully briefed and ready for disposition.
13, 2016, Plaintiffs filed this action in the City of St.
Louis Circuit Court against Defendant Abbott Laboratories
(“Abbott”) seeking damages for injuries resulting
from their exposure in utero to the prescription
anti-seizure drug, Depakote. Plaintiffs bring state law
claims for strict product liability, intentional and
negligent infliction of emotional distress, fraud,
negligence, and breach of express and implied warranties. The
twenty-five Plaintiffs reside in multiple states; one is a
citizen of Missouri (Petition, Doc. No. 6 at ¶ 17).
Three of the “Non-Missouri Plaintiffs” share
Illinois citizenship with Abbott (Petition, Doc. No. 6 at
¶¶ 23-25, 27; Notice of Removal, Doc. No. 1 at
¶¶ 3-4). Despite that shared citizenship, on August
17, 2016, Abbott removed the action to this Court on the
basis of diversity jurisdiction. (Doc. No. 1) Abbott argues
the Non-Missouri Plaintiffs have not established that Abbott
is subject to personal jurisdiction in Missouri, so their
claims should be dismissed. Abbott also argues that
Plaintiffs have fraudulently joined their claims in a single
petition in an attempt to defeat removal to federal court.
(Id. at ¶¶ 10-11, 51-57) Abbott contends
the Court can and should consider the threshold issue of
personal jurisdiction before determining whether the Court
has subject matter jurisdiction over the case.
move to remand the case back to state court because complete
diversity does not exist and because fraudulent
misjoinder has not been recognized by the Eighth
Circuit as a basis for removal of state law pharmaceutical
product liability cases, citing In re Prempro Products
Liability Litigation, 591 F.3d 613, 619 (8th Cir. 2010)
and M.B. ex rel. Hitt v. Abbott Labs. Inc., No.
4:12-CV-1250 CAS, 2012 WL 5258957 (E.D. Mo. Oct. 24, 2012).
(Doc. No. 10 at 1, 4, 10-14)
outset, the Court declines to rule on the personal
jurisdiction question before ruling on subject matter
jurisdiction. On numerous occasions, this Court has exercised
its discretion in deciding whether to consider personal or
subject matter jurisdiction in the first instance, see
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88
(1999), to consider subject matter jurisdiction first.
See Morgan v. Janssen Pharmaceuticals, Inc., et al.,
No. 4:14CV1346 CAS, 2014 WL 6678959 (E.D. Mo. Nov. 25, 2014);
Butler v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., et
al., No. 4:14CV1485 RWS, 2014 WL 5025833 (E.D. Mo. Oct.
8, 2014); Littlejohn v. Janssen Research & Dev.,
LLC, No. 4:15CV194 CDP, 2015 WL 1647901, at *3 (E.D. Mo.
Apr. 13, 2015). The Court will do so here, where the inquiry
regarding subject matter jurisdiction is straightforward.
Ruhrgas, 526 U.S. at 588.
action is removable to federal court if the claims originally
could have been filed in federal court. 28 U.S.C. §
1441; Prempro, 591 F.3d at 619. The defendant bears
the burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). A case must be
remanded if, at any time, it appears that the district court
lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c);
Fed.R.Civ.P. 12(h)(3). Any doubts about the propriety of
removal are resolved in favor of remand. Wilkinson v.
Shackelford, 478 F.3d 957, 963 (8th Cir. 2007).
in this case was premised on diversity jurisdiction, which
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). There is no dispute that the amount in
controversy is over $75, 000. Likewise, the parties agree
that Plaintiffs' petition does not allege complete
diversity between the parties. Nevertheless, Abbott argues
this Court has diversity jurisdiction because the
Non-Missouri Plaintiffs' claims were fraudulently joined.
have recognized fraudulent joinder as an exception to the
complete diversity rule. “Fraudulent joinder occurs
when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent
removal.” In re Prempro, 591 F.3d 613 at 620
(citation omitted). The joinder is fraudulent only if there is
no “reasonable basis in fact or law to support a claim
against a nondiverse defendant.” Id. Here,
Abbott argues the Non-Missouri Plaintiffs are fraudulently
joined with the Missouri Plaintiff because the Non-Missouri
Plaintiffs cannot establish personal jurisdiction over it
under Missouri law. (Doc. No. 14 at 10-11)
District, courts have held that an alleged lack of personal
jurisdiction does not establish fraudulent joinder. See
Joseph v. Combe Inc., No. 4:16CV284 RLW, 2016 WL
3339387, at *2 (E.D. Mo. June 13, 2016) (citing Triplett
v. Janssen Pharms., Inc., No. 4:14CV02049 AGF (E.D. Mo.
July 7, 2015) (finding defendants failed to establish
fraudulent joinder because a personal jurisdiction challenge
does not go to the merits of plaintiffs' claims);
Gracey, 2015 WL 2066242, at *3 (rejecting
defendants' attempt to premise a fraudulent joinder
argument on the state court's alleged lack of personal
jurisdiction); Simmons v. Skechers USA, Inc., No.
4:15-CV-340-CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9,
2015) (remanding action because the defendants' only
argument for fraudulent joinder of non-Missouri plaintiffs
was a procedural challenge to personal jurisdiction instead
of a substantive challenge to the viability of the claims).
The Court follows the approach taken by these courts and
finds Abbott has failed to establish fraudulent joinder in
the fraudulent misjoinder doctrine is applied, it does not
support this Court's exercise of jurisdiction.
See, e.g., Prempro, 591 F.3d at
619; Robinson v. Pfizer Inc., No. 4:16-CV-439 (CEJ),
2016 WL 1721143, at *3 (E.D. Mo. Apr. 29, 2016);
Littlejohn, 2015 WL 1647901, at *3; Morgan,
2014 WL 6678959; Butler, 2014 WL 5025833 (E.D. Mo.
Oct. 8, 2014); Orrick v. Smithkline Beecham Corp.,
No. 4:13-CV-2149 (SNLJ), 2014 WL 3956547 (E.D. Mo. Aug. 13,
2014). Several recent cases from this district have
determined that the joinder of plaintiffs alleging injury
from a single drug is not “egregious, ” because
common issues of law and fact connect the plaintiffs'
claims. Robinson, 2016 WL 1721143, at *4 (citing
cases). The Court finds that here, as in those cases,
Plaintiffs' complaint raises common questions of law or
fact regarding injuries alleged from use of the same drug,
Depakote, and arising out of the same development,
distribution, licensing, marketing, testing, and sales
practices for that drug, such that common issues of law and
fact are likely to arise in the litigation. Moreover, because
Plaintiffs' allegations relate to Abbott's design,
manufacture, testing, and promotion of Depakote - occurrences
common to all Plaintiffs - their claims also arise out of the
same transaction or occurrence, or series thereof. That is so
even if the exposures occurred in different states and under
the supervision of different medical professionals.
Robinson, 2016 WL 1721143 at *4.
claims are sufficiently related to support joinder in this
case, and Abbott has not met its burden of demonstrating
diversity of citizenship as required by 28 U.S.C. §
1332. Therefore, this Court lacks subject matter ...