United States District Court, E.D. Missouri, Eastern Division
TAMARA TENNY, et al. Plaintiffs,
BAYER HEALTHCARE, LLC, et al. Defendants.
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
June 10, 2016. Plaintiffs allege injuries resulting from
Plaintiffs' use of Essure® permanent birth control
system. Plaintiffs are citizens of the States of Arizona,
Arkansas, California, Colorado, Florida, Georgie, Illinois,
Indiana, Iowa, Louisiana, Maine, Maryland, Michigan, Nevada,
New Jersey, New Mexico, New York, North Carolina, Ohio,
Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas,
West Virginia, Wisconsin, and Wyoming. Plaintiffs contend
that there are several named plaintiffs that are not
completely diverse with defendants. As admitted by
Defendants, Bayer Corporation is a citizen of Indiana and
Pennsylvania and Defendant Bayer HealthCare LLC is a citizen
of New Jersey and Pennsylvania. Plaintiff Stephanie Underwood
is a citizen of Indiana, Kristen Tsitoukis is a citizen of
Pennsylvania, Kelly Overly is a citizen of Pennsylvania, and
Tina Nungesser is a citizen of New Jersey.
20, 2016, Defendants removed this action to this Court on the
basis of diversity jurisdiction under 28 U.S.C. §
1332(a), federal question jurisdiction under 28 U.S.C.
§1331, and under the Class Action Fairness Act (CAFA).
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. 25 at 6). 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. Finally,
Plaintiffs maintain that removal under CAFA is not
appropriate because the Court cannot consider the pending
petitions in Dor man and Jones to be tried
in conjunction, and the Court cannot aggregate these
plaintiffs named in separate petition to create federal
jurisdiction under CAFA.
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, 1 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 that
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-JanssenPharms., 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
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