United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant's motion to stay
and motion to dismiss for lack of personal jurisdiction. Also
before the Court is plaintiffs' motion to remand pursuant
to 28 U.S.C. § 1447(c). The issues are fully briefed.
initiated this action in the Twenty-Second Judicial Circuit
Court of Missouri (City of St. Louis) arising out of
defendant's design, manufacture, sale, testing,
marketing, advertising, and promotion or distribution of
Viagra. Plaintiffs claim that use of Viagra caused serious
injury, including melanoma and death. They assert claims of
(1) negligence, (2) strict liability, (3) breach of express
warranty, (4) breach of implied warranty, (5) fraudulent
misrepresentation, (6) fraudulent concealment, (7) reckless
or negligent misrepresentation and concealment, (8) gross
negligence, (9) unjust enrichment, (10) wrongful death, and
(11) loss of consortium.
December 16, 2016, defendant removed the action to this Court
on the basis of diversity jurisdiction, 28 U.S.C. §
1332. Defendant is a citizen of Delaware where it is
incorporated and it is also a citizen of New York where its
principal place of business is located. Plaintiffs are
citizens of Missouri, New York, Texas, Ohio, California,
Georgia, Wisconsin, Washington, New Hampshire, North
Carolina, Michigan, Arkansas, Alabama, and Oklahoma.
the lack of complete diversity on the face of the complaint,
defendant argues that the case should not be remanded.
Defendant asks that the Court (1) grant its motion to stay
pending transfer to a multidistrict litigation case or, in
the alternative, (2) dismiss the claims of out-of-state
plaintiffs for lack of personal jurisdiction before
addressing subject matter jurisdiction. Even if the Court
decides subject-matter jurisdiction first, defendant argues,
exceptions to complete diversity apply; specifically,
defendants argue that the non-diverse plaintiffs' claims
are fraudulently joined and fraudulently misjoined.
Id. Plaintiffs, on the other hand, argue that remand
is required because this Court does not have subject matter
Motion to Stay
moves to stay the proceedings until the Judicial Panel on
Multidistrict Litigation (JPML) rules on its motion to
transfer this case to the MDL proceeding In re Viagra
(Sildenafil Citrate) and Cialis (Tadalafil) Products
Liability Litigation, MDL No. 2691. However, “[a]
putative transferor court need not automatically postpone
rulings on pending motions, or in any way generally suspend
proceedings, merely on grounds that an MDL transfer motion
has been filed.” Spears v. Fresenius Med. Care N.
Am., Inc., No. 4:13-CV-855 (CEJ), 2013 WL 2643302, at *1
(E.D. Mo. June 12, 2013) (quoting T.F. v. Pfizer,
Inc., No. 4:12-CV-1221 (CDP), 2012 WL 3000229, at *1
(E.D. Mo. July 23, 2012)); see also Robinson v. Pfizer
Inc., No. 4:16-CV-439 (CEJ), 2016 WL 1721143, at *1
(E.D. Mo. Apr. 29, 2016); Clark v. Pfizer, Inc., No.
4:15-CV-546 (HEA), 2015 WL 4648019, at *1-2 (E.D. Mo. Aug. 5,
2015) (denying a stay pending a ruling on a conditional
transfer); Simmons v. Skechers USA, Inc., No.
4:15-CV-340 (CEJ), 2015 WL 1604859, at *1 (E.D. Mo. Apr. 9,
2015); Matthews v. Fresenius Med. Care N. Am., Inc.,
No. 4:14-CV-979 (JAR), 2014 WL 3579941, at *1 (E.D. Mo. July
21, 2014). “This is especially true where, as here, [a]
pending motion is one for remand and goes to the Court's
subject matter jurisdiction.” Spears, 2013 WL
2643302, at *1 (internal quotation marks
argues that a stay is appropriate in this case because it
would (1) promote judicial economy, (2) avoid prejudice to
defendant, and (3) impose no prejudice on plaintiffs. The
Court disagrees. “This Court is in the best position to
determine subject matter jurisdiction, and waiting for a
decision by the JPML before ruling on the motion to remand
‘would not promote the efficient administration of
justice.'” Spears, 2013 WL 2643302, at *1
(quoting Stone v. Baxter Int'l, Inc., No.
4:08-CV-3207, 2009 WL 236116, at *2 (D. Neb. Jan. 30, 2009)).
Accordingly, defendant's motion to stay will be
Motion to Remand
defendant may remove a state law claim to federal court only
if the action originally could have been filed there.”
In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d
1006, 1010 (8th Cir. 2005)). Moreover, the removing defendant
bears the burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy
Coll., 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 any time, it appears that the district court lacks
subject-matter jurisdiction. 28 U.S.C. § 1447(c);
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). “The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United States,
' and is ‘inflexible and without
exception.'” Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94-95 (1998) (quoting
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.
379, 382 (1884)). Defendant argues that, in this case, the
Court should dismiss the claims of the non-Missouri
plaintiffs for lack of personal jurisdiction before
addressing subject matter jurisdiction. [Doc. #14 at 5].
Ruhrgas AG v. Marathon Oil Co., the Court has
discretion to determine whether to consider its
subject-matter jurisdiction or personal jurisdiction first.
526 U.S. 574, 578 (1999) (holding that “[c]ustomarily,
a federal court first resolves doubts about its jurisdiction,
but there are circumstances in which a district court
appropriately accords priority to a personal jurisdiction
inquiry, ” or otherwise stated, “there is no
unyielding jurisdictional hierarchy”). “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.'”
Id. at 586 (quoting Allen v. Ferguson, 791
F.2d 611, 616 (7th Cir. 1986)). Notably, however, “in
most instances subject-matter jurisdiction will involve no
arduous inquiry.” Id. at 587.
in this district addressing similar personal-jurisdiction
arguments have found it appropriate to address the issue of
subject matter jurisdiction first. See, e.g., Hall v.
Bayer Corp., No. 4-16-CV-1523 (CEJ), 2017 WL 86011 (E.D.
Mo. Jan. 10, 2017); Mcpeters v. Bayer Corp., No.
4:16-CV-1680 (SPM), 2017 WL 57250 (E.D. Mo. Jan. 5, 2017);
Dotson v. Bayer Corp., 4-16-CV-1593 (PLC), 2017 WL
35706 (E.D. Mo. Jan. 4, 2017); Spann v. Boehringer
Ingelheim Pharm., Inc., No. 4:16-CV-902 (RLW), 2016 WL
7243535 (E.D. Mo. Dec. 14, 2016); 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 (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.