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Dotson v. Bayer Corp.

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

January 4, 2017

TANYA DOTSON, et al., Plaintiffs,
v.
BAYER CORP., et al., Defendants.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs' motion to remand [ECF No. 12] and supplemental authority. Defendants filed a memorandum in opposition [ECF No. 19] as well as supplemental authority. The Court heard oral argument on the motion.

         Background

         Plaintiffs are ninety-four Essure users, who are citizens of Missouri and thirty other states. Plaintiffs filed this action in the Circuit Court of the City of St. Louis, Missouri, seeking monetary relief, including punitive damages, for injuries allegedly arising out of their use of Essure, a medical device for permanent birth control.[1] Bayer Corp.; Bayer Healthcare LLC; Bayer Essure, Inc. f/k/a Conceptus, Inc.; and Bayer Healthcare Pharmaceuticals, Inc., all non-citizens of Missouri, ("Defendants")[2] allegedly manufactured, promoted, marketed, and sold the Essure device while concealing the safety risks of its use. In their fourteen-count petition, Plaintiffs allege Defendants are liable for negligence, negligence per se, negligent misrepresentation, strict liability (failure to warn and manufacturing defect), common law fraud, constructive fraud, fraudulent concealment, breach of express warranty, breach of implied warranty, violations of various states' consumer protection statutes, violations of the Missouri Products Liability statute and the Missouri Merchandising Practices Act, gross negligence and punitive damages. As support for their state law claims for negligence, negligence per se, negligent misrepresentations, strict liability, and violations of the Missouri Products Liability statute, Plaintiffs allege, in relevant part, that Defendants violated provisions of the Federal Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., and related provisions of the Code of Federal Regulations ("CFR").

         Pursuant to 28 U.S.C. Sections 1441 and 1446, Defendants removed the lawsuit on the grounds this Court has: (1) diversity jurisdiction under 28 U.S.C. § 1332 because the amount in controversy exceeds $75, 000.00, exclusive of interest and costs, for each Plaintiff's claim and complete diversity of citizenship exists between the "proper Plaintiffs" and Defendants; (2) federal question jurisdiction under 28 U.S.C. § 1331 because Plaintiffs "plead violations of federal law on the face of their" petition, the Essure medical device received "the highest level of scrutiny available" prior to approval by the Food and Drug Administration ("FDA"), and exercise of federal question jurisdiction "will not disrupt the balance between state and federal" courts; and (3) removal jurisdiction under the "mass action" provision of the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(11)(B)(i), due to the number of Plaintiffs and claims when considered in conjunction with the number of plaintiffs and claims in "nearly identical complaints" filed in five other removed Essure device cases.[3] With respect to the Court's diversity jurisdiction, Defendants further urge there is complete diversity if the Court ignores the citizenship of the non-diverse Plaintiffs who, Defendants assert, were fraudulently joined or fraudulently misjoined.[4]Additionally, Defendants argue the Court should initially exercise its discretion and dismiss the non-Missouri Plaintiffs, including the non-diverse Plaintiffs, due either to lack of personal jurisdiction or the doctrine of forum non conveniens.

         By contrast, Plaintiffs contend in their motion to remand that the Court should first resolve subject matter jurisdiction issues because they are "straight forward" and "not arduous." In particular, Plaintiffs move to remand due to the absence of subject matter jurisdiction on the grounds that: (1) complete diversity does not exist between all Defendants and all Plaintiffs, who are all properly joined; (2) Defendants' alleged violations of the FDCA and CFR are not sufficiently substantial to confer federal question jurisdiction in a case, such as this one, presenting "traditional state law tort claims"; and (3) removal jurisdiction under the "mass action" provision of the CAFA is inappropriate because no party has proposed a joint trial of the claims in this and the similar removed cases.

         Legal Standard

         A defendant may remove to federal district court any state court civil action over which the federal district court could exercise original jurisdiction. 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1331, a federal district court has original federal question jurisdiction over "civil actions arising under the . . . laws . . . of the United States." Title 28 U.S.C. Section 1332 confers federal diversity jurisdiction over civil actions between citizens of different states when the amount in controversy exceeds $75, 000, exclusive of interest and costs. With exceptions not applicable here, a federal court also has removal jurisdiction under the CAFA over a claim exceeding $75, 000 pursued by a plaintiff in a "mass action, " which, as noted earlier, is statutorily defined as "any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact." 28 U.S.C. § 1332(d)(11)(B)(i).

         A removing "defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence." In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010). A federal court must remand the case to state court if the federal court lacks subject matter jurisdiction. Id. at 620; 28 U.S.C. § 1447(c). Importantly, "[a]ll doubts about federal jurisdiction should be resolved in favor of remand to state court." In re Prempro Prods. Liab. Litig., 591 F.3d at 620.

         Discussion

         A. Priority of Jurisdiction Issues

         The United States Supreme Court stated in Ruhrgas v. Marathon Oil Co., 526 U.S. 574 (1999), that "[c[ustomarily, a federal court first resolves doubts about its jurisdiction over the subject matter." Id. at 578. "[I]n 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. A district court resolves personal jurisdiction issues before subject-matter jurisdiction issues only where "a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question." Id. at 588.

         Defendants contend the personal jurisdiction issues are straightforward and, therefore, should be resolved before subject matter jurisdiction. General personal jurisdiction is absent, Defendants argue, because Defendants do not have continuous and systematic contacts with Missouri that render Defendants "essentially at home" in Missouri, citing Daimler AG v. Bauman, 134 S.Ct. 746, 760-61 and n. 19 (2014). With respect to specific personal jurisdiction, Defendants urge such jurisdiction does not exist because the injuries of the non-diverse Plaintiffs do not arise out of and are not related to any conduct or transaction that occurred in Missouri, citing Johnson v. Arden, 614 F.3d 785, 795 (8th Cir. 2010). In contrast to the personal jurisdiction issues, Defendants assert, the subject-matter jurisdiction issues involve the resolution of complex questions of whether the non-diverse Plaintiffs were fraudulently joined or fraudulently misjoined.

         In other removed Essure device cases in this district, our court has consistently resolved the subject-matter jurisdiction issues first, upon concluding that personal jurisdiction issues "require[] a more fact-intensive inquiry than the straightforward issue of subject-matter jurisdiction." See, e.g., Dorman v. Bayer Corp., No. 4:16cv00601 HEA, 2016 WL 7033765, at *1 (E.D. Mo. Dec 2, 2016); Williams v. Bayer Healthcare, LLC, No. 4:16cv01105 RLW, 2016 WL 7235701, at *1-2 (E.D. Mo. Dec. 13, 2016); Jones v. Bayer Corp., No. 4:16cv01192 JCH, 2016 WL 7230433, at *2 n.3 (E.D. Mo. Dec. 14, 2016). Finding the subject-matter jurisdiction inquiry here is not "arduous, " the Court likewise resolves the subject-matter jurisdiction issues prior to the personal jurisdiction issues. Accord Tabor v. Bayer Corp., No. 4:16cv01682 RWS, Mem. and Order at 3 (E.D. Mo. Dec. 16, 2016).

         Defendants also urge the Court to consider forum non conveniens issues before addressing subject-matter jurisdiction issues, because dismissing the non-diverse Plaintiffs' claims based on the forum non conveniens doctrine would leave only completely diverse parties before the Court. In support of dismissal of the non-diverse Plaintiffs under the forum non conveniens doctrine, Defendants argue each non-diverse ...


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