United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs' motion to
remand the action to the state court from which it was
removed. Defendants have filed a response in opposition, a
motion to dismiss the claims of all non-Missouri plaintiffs
for lack of personal jurisdiction, and a motion to sever the
plaintiffs' claims. Both sides have filed notices of
supplemental authority, which the Court has reviewed. All
issues are fully briefed.
28, 2016, 94 individuals filed suit in the Twenty-Second
Judicial Circuit (St. Louis City) seeking damages for
injuries arising from use of Essure, an implanted birth
control device manufactured by defendants. Plaintiffs are
citizens of several states, including Missouri, Indiana,
Pennsylvania, and New Jersey. Defendant Bayer Corporation is
a citizen of Indiana, where it is incorporated, and
Pennsylvania, where it has its principal place of business;
defendant Bayer HealthCare LLC, is a limited liability
company formed under the laws of Delaware whose nine members
are citizens of Delaware, New Jersey, Pennsylvania, the
Netherlands, and Germany; defendants Bayer Essure Inc., and
Bayer HealthCare Pharmaceuticals Inc., are citizens of
Delaware and New Jersey; and Bayer AG is a citizen of
Germany. [see Notice of Removal, Doc. # 1 at
¶¶ 23-27]. Defendants removed the case to this
Court invoking jurisdiction based on diversity of
citizenship, pursuant to 28 U.S.C. § 1332(a)(1), federal
question jurisdiction, pursuant to 28 U.S.C. § 1331, and
mass action jurisdiction pursuant to the Class Action
Fairness Act (CAFA), 28 U.S.C. § 1332(d).
defendant may remove a state law claim to federal court only
if the action originally could have been filed there.”
In re Prempro Products Liability Litigation, 591
F.3d 613, 619 (8th Cir. 2010) (citing Phipps v.
FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). The removing
defendant bears the burden of establishing federal
jurisdiction by a preponderance of the evidence. Altimore
v. Mount Mercy College, 420 F.3d 763, 768 (8th Cir.
2005). “All doubts about federal jurisdiction should be
resolved in favor of remand to state court.” In re
Prempro, 591 F.3d at 620 (citing Wilkinson v.
Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case
must be remanded if, at anytime, it appears that the district
court lacks subject-matter jurisdiction. 28 U.S.C. §
1447(c); Fed.R.Civ.P. 12(h)(3).
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). Defendants argue that, in this case, the Court should
dismiss the claims of the non-Missouri plaintiffs for lack of
personal jurisdiction before addressing subject matter
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999),
the Court has discretion to determine whether to consider its
subject-matter jurisdiction or personal jurisdiction first.
Where, as here, the inquiry into subject matter jurisdiction
is not arduous, the better course is to address that issue
first. See id. at 587-88 (“[B]oth expedition
and sensitivity to state courts' coequal stature should
impel the federal court to dispose of [subject matter
jurisdiction] first.”) Courts in this district
addressing cases removed on the basis of similar
personal-jurisdiction arguments have found it appropriate to
address the issue of subject matter jurisdiction first.
See, e.g., Mounce v. Bayer Corp., No.
4:16-CV-1478 (RLW), 2016 WL 7235707 (E.D. Mo. Dec. 13, 2016);
Dorman v. Bayer Corp., No. 4:16-CV-601 (HEA), 2016
WL 7033765 (E.D. Mo. Dec. 2, 2016); Fahnestock v.
Boehringer Ingelheim Pharm., Inc., No. 4:16-CV-1013
(CEJ), 2016 WL 4397971, at *1 (E.D. Mo. Aug. 18, 2016);
Timms v. Johnson & Johnson, No. 4:16-CV-733
(JAR), 2016 WL 3667982 (E.D. Mo. July 11, 2016); Joseph
v. Combe Inc., No. 4:16-CV-284 (RLW), 2016 WL 3339387
(E.D. Mo. June 13, 2016); Nickerson v. Janssen Pharm.,
Inc., No. 4:15-CV-1762 (RLW), 2016 WL 3030241 (E.D. Mo.
May 26, 2016); Adler v. Boehringer Ingelheim Pharm.,
Inc., No. 4:16-CV-155 (RWS), Memorandum and Order (E.D.
Mo. Mar. 28, 2016) [Doc. #18]; Clark v. Pfizer, No.
4:15-CV-456 (HEA), 2015 WL 4648019 (E.D. Mo. Aug. 5, 2015);
Parker v. Pfizer, Inc., No. 4:15-CV-441 (CAS), 2015
WL 3971169 (E.D. Mo. June 30, 2015); Littlejohn v.
Janssen Research & Dev., LLC, No.
4:15-CV-194 (NAB/CDP), 2015 WL 1647901 (E.D. Mo. Apr. 13,
2015). The Court agrees that it is appropriate to determine
whether it has subject matter jurisdiction before addressing
the issue of personal jurisdiction.
jurisdiction under 28 U.S.C. § 1332 requires an amount
in controversy greater than $75, 000, exclusive of interest
and costs, and complete diversity of citizenship among 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.
doctrine of fraudulent joinder is an exception to the
complete diversity rule. In re Prempro, 591 F.3d at
620. “The doctrine of fraudulent joinder allows a
district court to assume jurisdiction over a facially
nondiverse case temporarily and, if there is no reasonable
basis for the imposition of liability under state law,
dismiss the nondiverse party from the case and retain subject
matter jurisdiction over the remaining claims.”
Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027,
1031 (8th Cir. 2012), as corrected (Nov. 28, 2012).
Defendants argue that the nondiverse plaintiffs are
fraudulently joined because the Court does not have personal
jurisdiction over defendants for the claims brought by the
joinder occurs when 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. To prove fraudulent joinder, the removing party must
show that “the plaintiff's claim against the
diversity-destroying defendant has ‘no reasonable basis
in fact and law.'” Knudson v. Sys. Painters,
Inc., 634 F.3d 968, 980 (8th Cir. 2011) (quoting
Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir.
2003)). “[I]f it is clear under governing
state law that the complaint does not state a cause of action
against the non-diverse defendant, the joinder is
fraudulent.” Id. (emphasis in original).
Conversely, “joinder is not fraudulent where
‘there is arguably a reasonable basis for predicting
that the state law might impose liability based upon the
facts involved.'” Id. (quoting
Filla, 336 F.3d at 811).
in this district have repeatedly held that an alleged lack of
personal jurisdiction does not establish fraudulent joinder.
See Mounce, 2016 WL 7235707, at *3; Adler,
No. 4:16-CV-155 at 4; Joseph v. Combe Inc., 2016 WL
3339387, at *2; Triplett v. Janssen Pharms., Inc.,
No. 4:14-CV-2049 (AGF), at 9 (E.D. Mo. July 7, 2015) [Doc.
#30] (finding defendants' personal jurisdiction argument
failed to address whether nondiverse plaintiffs had colorable
claims as required to show fraudulent joinder); 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); Littlejohn, 2015 WL 1647901, at *1;
Simmons v. Skechers USA, Inc., No. 4:15-CV-340
(CEJ), 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9, 2015)
(rejecting defendants' argument that the “theory of
fraudulent joinder-an inquiry into substantive viability of
claims-countenances a procedural challenge to a court's
personal jurisdiction over a defendant.”) Furthermore,
this Court has determined “[o]n numerous occasions . .
. 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 ...