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Jones v. Bayer Corp.

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

December 14, 2016

TRACI JONES, et al., Plaintiffs,
BAYER CORPORATION, et al., Defendants.



         This matter is before the Court on Plaintiffs' Motion to Remand, filed August 1, 2016. (ECF No. 16). The motion is fully briefed and ready for disposition.


         On or about June 20, 2016, Plaintiffs filed their Petition for Damages in the Circuit Court of the City of St. Louis, Missouri. (Petition for Damages (hereinafter “Complaint” or “Compl.”), ECF No. 11). In total, there are 99 Plaintiffs joined to the action.[1] Each Plaintiff claims that she was prescribed and implanted with the Essure system of permanent birth control manufactured by Defendants, and that as a result she “suffered and will continue to suffer from severe injuries and damages, including but not limited to irregular heavy menstrual cycle bleeding, organ perforation, and severe chronic pain which required surgical intervention to remove the Essure coils or will require surgical intervention to remove the Essure coils in the future.” (Compl., ¶¶ 464, 470-1036). These claims are alleged to be the result of Defendants' illegal conduct, including their “failure to warn of the risks, dangers, and adverse events associated with Essure as manufactured, promoted, sold and supplied by both companies, and as a result of the negligence, callousness, and other wrongdoing and misconduct of [Defendants] as described herein….” (Id., ¶¶ 464, 465). Based on these allegations, Plaintiffs bring claims for negligence, negligence per se, negligence-misrepresentation, strict liability-failure to warn, manufacturing defect, common law fraud, constructive fraud, fraudulent concealment, breach of express warranty, breach of implied warranty, violation of consumer protection laws, Missouri Products liability, violation of the Missouri Merchandising Practices Acts, and gross negligence/punitive damages. (Id., ¶¶ 1049-1268).

         Defendants removed the action to this Court on July 20, 2016, on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a)[2], federal question jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). (Notice of Removal, ECF No. 1). As noted above, Plaintiffs filed the instant Motion to Remand on August 1, 2016, claiming Plaintiffs' joinder in one action was proper, thus destroying diversity jurisdiction, and no federal question arises from Plaintiffs' Complaint.


         A civil action brought in state court may be removed to the proper district court if the district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Removal statutes are strictly construed, however, “and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand.” 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)). The party invoking federal jurisdiction and seeking removal has the burden of establishing jurisdiction by a preponderance of the evidence. Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8thCir. 2009); see also Nicely v. Wyeth, Inc., 2011 WL 2462060, at *2 (E.D. Mo. Jun. 17, 2011).

         I. Diversity Of Citizenship Jurisdiction[3]

         “Federal district courts have original jurisdiction in all civil actions between citizens of different states if the amount in controversy exceeds $75, 000.00, exclusive of interest and costs.”[4] Manning, 304 F.Supp.2d at 1148 (citing 28 U.S.C. § 1332(a)(1)). The diversity jurisdiction statute has been interpreted to require complete diversity, meaning “diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in original); see also OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (“Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship.”). Despite the lack of compete diversity on the face of the Complaint, Defendants assert diversity jurisdiction exists because this situation falls within the contours of the fraudulent misjoinder doctrine, which, where it has been adopted, is an exception to the requirement of complete diversity.

         “Courts have long recognized fraudulent joinder as an exception to the complete diversity rule.” In re Prempro Products Liability Litigation, 591 F.3d 613, 620 (8th Cir.) (citing 14B Charles Alan Wright et al., Federal Practice and Procedure § 3723, at 788-89 (4th ed. 2009)), cert. denied, 562 U.S. 963 (2010). “Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal.” Id. (citation omitted).

         Fraudulent misjoinder is a more recent exception to the complete diversity rule. In re Prempro, 591 F.3d at 620. “Fraudulent misjoinder ‘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. (quoting Ronald A. Parsons, Jr., Should the Eighth Circuit Recognize Procedural Misjoinder?, 53 S.D. L.Rev. 52, 57 (2008)).

         The Eighth Circuit in Prempro acknowledged the fraudulent misjoinder doctrine, but declined either to adopt or reject it. See In re Prempro, 591 F.3d at 622. Instead, the Court concluded that even if it were to adopt the doctrine, the facts of the case before it were not so egregious as to warrant its application. Id. The court began its reasoning with the observation that the Eighth Circuit uses a very broad definition for the term ‘transaction', as that term applies in the context of permissive joinder under Fed.R.Civ.P. 20. Id. Specifically, the term may be understood to “‘comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.'” Id. (quoting Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)). The Prempro court continued to find that the plaintiffs' claims all arose from a series of transactions between hormone replacement therapy (“HRT”) pharmaceutical manufacturers and individuals that used the drugs. Id. at 623. This finding was bolstered by the fact that the plaintiffs alleged (1) “the manufacturers conducted a national sales and marketing campaign to falsely promote the safety and benefits of HRT drugs and understated the risks of HRT drugs”; and (2) “they each developed breast cancer as a result of the manufacturers' negligence in designing, manufacturing, testing, advertising, warning, marketing, and selling HRT drugs.” Id. The court also found there were likely to be common questions of law and fact between the claims, such as the causal link between HRT drugs and breast cancer. Id. Based on these findings, the Prempro court was unable to conclude that the plaintiffs' claims had “‘no real connection' to each other such that they [were] egregiously misjoined.” Id.

         Upon consideration of the reasoning in Prempro, the Court finds application of the fraudulent misjoinder doctrine to be inappropriate here as well. “As this Court has found in several recent cases, the joinder of plaintiffs alleging injury from a single drug is not ‘egregious, ' because common issues of law and fact connect plaintiffs' claims.” Spears v. Fresenius Medical Care North America, Inc., 2013 WL 2643302, at *3 (E.D. Mo. Jun. 12, 2013) (collecting cases). “Similarly, plaintiffs in this case have filed suit against defendants for injuries….caused by the same product [Essure] and arising out of the same development, distribution, marketing, and sales practices for that product, and common issues of law and fact are likely to arise in the litigation.” Id. Thus, while Defendants are correct that there may be some differences between Plaintiffs' claims, the reasoning of Prempro compels the conclusion that the fraudulent misjoinder doctrine, even if adopted, is inapplicable. Removal on the basis of diversity jurisdiction thus was inappropriate, as complete diversity between the parties does not exist.

         II. Federal ...

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