United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand (ECF No. 18). This matter is fully briefed and ready
filed this action in the Circuit Court for the Twenty-Second
Judicial Circuit, City of St. Louis, State of Missouri, on
May 25, 2016, pursuant to Missouri Rule 52.05(a). Plaintiffs
allege injuries resulting from Plaintiffs' use of
Essure® permanent birth control system. Plaintiffs are
citizens of the States of Missouri, Pennsylvania, New York,
North Carolina, Colorado, Iowa, Connecticut, Wisconsin,
Arizona, Illinois, Kentucky, Tennessee, Massachusetts,
Florida, West Virginia, Virginia, Arkansas, and Washington.
As admitted by Defendants, Plaintiffs Jan Loney and Ashley
Moore share citizenship with Defendants Bayer Corporation and
Bayer Healthcare LLC. (ECF No. 1 at 2). Plaintiffs allege
claims for negligence failure to warn, negligence, strict
products liability, and fraud.
7, 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. §1331.
Although there appears to be a lack of complete diversity
based upon the face of the Petition, Defendants argue that
they are not subject to personal jurisdiction with respect to
the non-Missouri Plaintiffs' claims. Defendants further
assert that personal jurisdiction should be resolved before
subject matter jurisdiction because it presents the
"simpler question." (ECF No. 23 at 7). Plaintiffs
maintain that remand is appropriate because complete
diversity does not exist and Plaintiffs' claims are not
fraudulently joined. Plaintiffs also put forth that the Court
does not have federal question jurisdiction.
statutes are strictly construed, and any doubts about the
correctness of removal are resolved in favor of state court
jurisdiction and remand. See Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108-09 (1941); In re Bus.
Men's Assurance Co. of Am., 992 F.2d 181, 183 (8th
Cir. 1993); Manning v. Wal-Mart Stores East, Inc.,
304 F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing Transit
Cas. Co. v. Certain Underwriters at Lloyd's of
London, 119 F.3d 619, 625 (8th Cir. 1997)). A civil
action brought in state court may be removed to the proper
district court if the district court has original
jurisdiction of the action. 28 U.S.C. § 1441(a).
is axiomatic that a court may not proceed at all in a case
unless it has jurisdiction." Crawford v. F.
Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001)
(citing See Ex Parte McCardle, 7 Wall. 506, 514, 19
L.Ed. 264 (1868). 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, the Supreme Court has held
If personal jurisdiction raises "difficult questions of
[state] law, " and subject-matter jurisdiction is
resolved "as eas [ily]" as personal jurisdiction, a
district court will ordinarily conclude that "federalism
concerns tip the scales in favor of initially ruling on the
motion to remand."
Ruhrgas AG, 526 U.S. at 586 (citing Allen v.
Ferguson, 791 F.2d 611, 616 (C.A.7 1986)). "[I]n
most instances subject-matter jurisdiction will involve no
arduous inquiry." Ruhrgas AG, 526 U.S. at 587.
"In such cases, 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 (E.D. Mo. June 13,
2016); 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. 4:14CV1485 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 pleadings).
Court holds that there is not complete diversity on the face
of the Petition and no basis for fraudulent joinder. "A
defendant may remove a state law claim to federal court only
if the action originally could have been filed there."
In re Prempro Prod. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d
1006, 1010 (8th Cir. 2005)). 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."
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,
346 (8th Cir. 2007).
however, "have long recognized fraudulent joinder as an
exception to the complete diversity rule." In re
Prempro Prod. Liab. Litig., 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." Id.
(citing Filla v. Norfolk S Ry. Co., 336 F.3d 806,
809 (8th Cir. 2003)). "When determining if a party has
been fraudulently joined, a court considers whether there is
any reasonable basis in fact or law to support a claim
against a nondiverse defendant." Id. (citing
Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th
Cir. 2007)). Here, Defendants argue that the non-Missouri
citizen Plaintiffs are fraudulently joined with the Missouri
Plaintiffs because the out-of-state Plaintiffs cannot
establish personal jurisdiction under Missouri law.
in this district have consistently held that an alleged lack
of personal jurisdiction does not establish fraudulent
joinder. Joseph, 2016 WL 3339387, at *2;
Triplett v. Janssen Pharms., Inc., No.
4:14-CV-02049-AGF, 2015 U.S. Dist. LEXIS 160580, at *13 (E.D.
Mo. July 7, 2015); Gracey v. Janssen Pharms., Inc.,
No. 4:15-CV-407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4,
2015); Simmons v. Skechers USA, Inc., No.
4:15-CV-340-CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9,
2015). "On numerous occasions, this Court has 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 v. Pfizer Inc., No. 4:16-CV-439 (CEJ), 2016
WL 1721143, at *4 (E.D. Mo. Apr. 29, 2016)(collecting cases).
The Court follows the approach taken by the district courts
in the Eastern District of Missouri, holds that
Plaintiffs' claims are not fraudulently joined, and finds
that complete diversity is absent. See In re Prempro
Prod. Liab. Litig., 591 F.3d at 623. Plaintiffs have
filed suit against Defendants for injuries caused by the same