United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss, [Doc. No. 11] and Plaintiffs' Motion to Remand
[Doc. No. 17]. The motions are fully briefed and ready for
filed this action in the Circuit Court of the City of St.
Louis alleging fourteen causes of action against Defendants
arising out of personal injuries Plaintiffs allegedly
sustained from being prescribed and implanted with the Essure
system of permanent birth control manufactured by Defendants.
Plaintiffs assert claims of negligence, negligence per se,
strict products liability for failure to warn, defective
manufacturing, common law fraud, constructive fraud,
fraudulent concealment, breach of express warranty, breach of
implied warranty, violations of consumer protection laws,
Missouri Products liability, violation of the Missouri
Merchandising Practices Act, and gross negligence. The thirty
two Plaintiffs reside in 21 states, including Arizona,
California, Colorado, Florida, Georgia, Indiana, Maine,
Massachusetts, Minnesota, Mississippi, Missouri, Montana, New
Jersey, New York, North Carolina, Oklahoma, Pennsylvania,
Texas, and Utah.
Bayer HealthCare LLC was a citizen of Delaware, California,
Pennsylvania, Germany, and the Netherlands for purposes of
diversity jurisdiction at the time the Petition was filed.
Since April 21, 2016, it has been a citizen of Delaware, New
Jersey, Pennsylvania, Germany, and the Netherlands. Defendant
Bayer Essure Inc. is a Delaware corporation with its
principal place of business at the time the Petition was
filed in California. See 28 U.S.C. § 1332(c).
Because Bayer Essure Inc.'s principal place of business
has been in New Jersey since April 21, 2016, it is now a
citizen of Delaware and New Jersey for diversity purposes.
Id. Bayer HealthCare Pharmaceuticals Inc. is a
Delaware corporation with its principal place of business in
New Jersey. Bayer A.G. is a German corporation. Thus, for
diversity purposes, it is a citizen of Germany. See
28 U.S.C. § 1332(c).
April 28, 2016, Defendants removed this action to this Court
on the basis of diversity jurisdiction under 28 U.S.C. §
1332(a) and federal question jurisdiction under 28 U.S.C.
the lack of complete diversity on the face of the Petition,
Defendants contend that federal diversity jurisdiction exists
because this Court does not have personal jurisdiction over
the non-Missouri Plaintiffs. Defendants urge the Court to
rule on the personal jurisdiction issue before addressing the
issue of subject matter jurisdiction. Plaintiffs move to
remand this case to the Circuit Court of the City of St.
Louis, Missouri, because complete diversity does not exist,
and Plaintiffs' claims are not fraudulently joined.
Furthermore, Plaintiffs contend there is no federal question
claims in their Petition.
district court may not proceed in a case unless it has
jurisdiction. Crawford v. F. Hoffman-La Roche, Ltd,
267 F.3d 760, 764 (8th Cir. 2001). Under Supreme Court
precedent set forth in Ruhrgas AG v. Marathon Oil
Co., 526 U.S.574 (1999), a Court has discretion to
consider personal jurisdiction first where personal
jurisdiction is straightforward and presents no complex
question of state law, and the alleged defect in subject
matter jurisdiction raises a difficult question. Id.
at 588; see also Crawford, 267 F.3d at 764
(“[C]ertain threshold questions, such as personal
jurisdiction, may be taken up without a finding of
subject-matter jurisdiction, provided that the threshold
issue is simple when compared to the issue of subject-matter
jurisdiction.”). However, “in most instances
subject-matter jurisdiction will involve no arduous inquiry
... [and] both expedition and sensitivity to state
courts' coequal stature should impel the federal court to
dispose of that issue first.” Id. at 587-88.
Courts in this district addressing the same issue have found
that personal jurisdiction requires a more fact-intensive
inquiry than the straightforward issue of subject-matter
jurisdiction. See, e.g., Joseph v. Combe Inc., No.
4:16CV284 RLW, 2016 WL 3339387, at *1-3 (E.D. Mo. June 13,
2016)(finding the issue of subject matter jurisdiction was a
straightforward legal issue that judges in this district had
already addressed); Morgan v. Janssen Pharms., Inc., No.
4:14-CV-1346 CAS, 2014 WL 6678959, at *2 (E.D. Mo. Nov.
25, 2014) (finding the issue of subject matter jurisdiction
in an action arising from the drug Risperidone was a
straightforward legal issue that judges in this district had
already addressed and that issues of personal jurisdiction
required a more fact-intensive inquiry); Butler v.
Ortho-McNeil-Janssen Pharms., Inc., No.
RWS, 2014 WL 5025833, at *1 (E.D. Mo. Oct. 8, 2014)
(declining to rule on issues of personal jurisdiction first
because the subject matter jurisdiction issue was not
arduous). Thus, the Court in its discretion will first
determine the issue of subject matter jurisdiction, as the
question of personal jurisdiction requires a more
fact-intensive inquiry. See Dever v. Hentzen Coatings,
Inc., 380 F.3d 1070, 1072-73 (8th Cir. 2004) (noting a
determination of personal jurisdiction requires looking at
affidavits and exhibits in addition to the face of the
defendant may remove a state law claim to federal court only
if the action originally could have been filed there.”
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citation omitted). Under 28 U.S.C. §
1332(a), a district court has original jurisdiction over a
civil action where the amount in controversy exceeds the sum
of $75, 000 and there is complete diversity of citizenship
between the litigants. “Complete diversity of
citizenship exists where no defendant holds citizenship in
the same state where any plaintiff holds citizenship.”
One Point Sols., LLC v. Borchert, 486 F.3d 342, 346
(8th Cir. 2007) (citation omitted). In removal cases, the
Court reviews the state court petition and the notice of
removal in order to determine whether it has jurisdiction.
Branch v. Wheaton Van Lines, Inc., No.
4:14-CV-01735, 2014 WL 6461372, at *1 (E.D. Mo. Nov. 17,
2014). “Where the defendant seeks to invoke federal
jurisdiction through removal, ..., it bears the burden of
proving that the jurisdictional threshold is
satisfied.” Bell v. Hershey Co., 557 F.3d 953,
956 (8th Cir. 2009) (citation omitted). District courts are
to resolve all doubts regarding federal jurisdiction in favor
of remand. In re Business Men's Assur. Co. of
Am., 992 F.3d 181, 183 (8th Cir. 1993).
have recognized that exception to the complete diversity
requirement exists where “a plaintiff files a frivolous
or illegitimate claim against a non-diverse defendant solely
to prevent removal.” In re Prempro, 591 F.3d
at 620;see also Filla v. Norfolk S. Ry Co.,
336 F.3d 806, 810 (“Where applicable state precedent
precludes the existence of a cause of action against a
defendant, joinder is fraudulent.”). In the instant
case, Defendants argue that the non-Missouri citizens in this
case are fraudulently joined with the Missouri Plaintiffs
because the out-of-state Plaintiffs cannot establish personal
jurisdiction under Missouri law. In this district, courts
have consistently held that an alleged lack of personal
jurisdiction does not establish fraudulent joinder. See
Joseph No. 4:16CV284 RLW, 2016 WL 3339387, at *1-3;
Johnson v. Bayer, No. 4:16CV729 CEJ (May 26,
2016)(sua sponte finding that defendants failed to
establish lack of diversity and federal question
jurisdiction); Triplett v. Janssen Pharms., Inc.,
No. 4:14CV02049AGF, 2015 U.S. Dist. LEXIS 160580, at *13
(E.D. Mo. July 7, 2015) (finding defendants failed to satisfy
their burden to establish fraudulent joinder because the
fraudulent joinder doctrine requires the court to consider
the merits of plaintiffs' claims under state law, and a
personal jurisdiction challenge does not go to the merits of
the claim); Gracey v. Janssen Pharms., Inc., No.
4:15-CV-407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4,
2015) (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. 4:15CV340 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). See, e.g., Robinson v.
Pfizer, Inc., No. 4:16CV439 CEJ, 2016 WL 1721143 (E.D.
Mo. Apr. 29, 2016) (collecting cases); Swann v. Johnson
& Johnson, No. 4:14CV1546 CAS, 2014 WL 6850776 (E.D.
Mo. Dec. 3, 2014) (declining to consider issues of personal
jurisdiction and venue when the issue of subject matter
jurisdiction is straightforward and has already been
addressed by judges in this district). For the same reasons
set forth in the earlier cases, the plaintiffs' claims
here are neither fraudulently joined nor misjoined and
complete diversity is absent. See In re Prempro, 591
F.3d at 623. Thus, removal cannot be based on diversity of
other courts in the Eastern District of Missouri have found
on the same issues this court finds that Defendants have
failed to establish fraudulent joinder in this case. Courts
in this district have determined that the joinder of
plaintiffs alleging injury from a single product is not
“egregious” because common issues of law and fact
connect the plaintiffs' claims. See, e.g., Valle v.
Ethicon, Inc., No. 4:13CV798 RWS, 2013 U.S. Dist. LEXIS
186552 (E.D. Mo. Apr. 29, 2013) (transvaginal mesh products);
T.F. v. Pfizer, Inc., No. 4:12CV1221 CDP, 2012 U.S.
Dist. LEXIS 101859, 2012 WL 3000229 (E.D. Mo. July 23, 2012)
(Zoloft®). Plaintiffs have filed suit against the
Defendants for injuries caused by the same contraception
system and arising out of the same practices for those
products such that common issues of law and fact are likely
to arise in the litigation. See In re Prempro, 591
F.3d at 623.
notice of removal, defendants also invoke federal question
jurisdiction pursuant to 28 U.S.C. § 1331, asserting
that plaintiffs' claims depend on the resolution of a
substantial, disputed federal question and the exercise of
jurisdiction will not disrupt the balance between federal and
state jurisdiction adopted by Congress. Federal district
courts “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. A claim
“arises under” federal law if a federal question
is presented on the face of the well-pleaded complaint.
Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987); Merrell Dow Pharm. Inc. v. Thompson, 478
U.S. 804, 808 (1986). “It is not enough that the
plaintiff alleges some ...