United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
case is before the Court on Plaintiffs' Motion to Remand
this case to state court. (Doc. 13). The motion has been
fully briefed. The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c). (Doc. 29).
filed this action in the Circuit Court of the City of St.
Louis, Missouri. (Doc. 1-1). Plaintiffs are ninety-four
individual women, each of whom alleges that she suffered
injuries resulting from the use of Essure, a permanent birth
control system manufactured by Defendants. Plaintiffs assert
claims of negligence, negligence per se, strict liability for
failure to warn, strict liability based on a manufacturing
defect, common law fraud, constructive fraud, fraudulent
concealment, breach of express warranty, breach of implied
warranty, violations of consumer protection laws, Missouri
products liability, violation of the Missouri Merchandising
Practices Act, and gross negligence/punitive damages.
Plaintiffs include citizens of thirty-two different states,
including Missouri, Indiana, Pennsylvania, and New Jersey.
December 8, 2016, Defendants removed the case 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 Class Action Fairness Act (“CAFA”)
jurisdiction under 28 U.S.C. § 1332(d). Defendant Bayer
Corporation is a citizen of Indiana and Pennsylvania.
Defendant Bayer HealthCare LLC is a citizen of Delaware, New
Jersey, Pennsylvania, Germany, and the Netherlands. Defendant
Bayer Essure, Inc., and Defendant Bayer Healthcare
Pharmaceuticals are citizens of Delaware and New Jersey. With
respect to diversity jurisdiction, Defendants argued that
although there is a lack of complete diversity on the face of
the Petition, the Court should dismiss the claims of the
non-Missouri plaintiffs for lack of personal jurisdiction, at
which point complete diversity would exist. Defendants also
argued that diversity jurisdiction exists because
Plaintiffs' claims have been fraudulently misjoined.
December 15, 2016, Plaintiffs filed the instant motion to
remand this case, arguing that the Court should address
subject matter jurisdiction before personal jurisdiction and
that the Court should remand the case for lack of subject
matter jurisdiction because there is no complete diversity,
no federal question jurisdiction, and no jurisdiction under
CAFA. Defendants oppose the 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). See also 28 U.S.C. § 1441(a).
After removal, a plaintiff may move to remand the case to
state court, and the case should be remanded if it appears
that the district court lacks subject matter jurisdiction. 28
U.S.C. § 1447(c). The party invoking federal
jurisdiction and seeking removal bears the burden of
establishing federal jurisdiction, and all doubts about
federal jurisdiction are resolved in favor of remand.
Central Iowa Power Co-op, v Midwest Indep. Transmission
Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).
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 parties' first dispute concerns whether the
Court should first consider the issue of subject matter
jurisdiction or the issue of personal jurisdiction.
Plaintiffs argue that the Court should first consider whether
it has subject matter jurisdiction over the case, and that it
should find no subject matter jurisdiction and remand the
case. Defendants argue that the Court should first consider
whether it has personal jurisdiction over particular
Plaintiffs' claims, dismiss any claims over which it does
not have personal jurisdiction, and only then evaluate
whether it has subject matter jurisdiction.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999),
the Supreme Court recognized that “in most instances
subject-matter jurisdiction will involve no arduous inquiry,
” and it stated that “[i]n 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. However, the
Supreme Court also held that where the question of personal
jurisdiction is straightforward and presents no complex
question of state law, and the alleged defect in subject
matter jurisdiction raises a difficult and novel question,
courts have the discretion to consider personal jurisdiction
first. Id. at 588. See also Crawford, 267
F.3d at 764 (“[C]ertain threshold issues, 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
consideration of both parties' arguments, the Court finds
that the subject matter jurisdiction question here is
straightforward and involves no arduous inquiry, and
therefore the Court will exercise its discretion to consider
its subject matter jurisdiction first. This approach is
consistent with the approach taken by judges in this district
in similar cases-several of which were nearly identical to
the instant case and involved the same defendants. See,
e.g., Jones v. Bayer Corp., No. 4:16-CV-1192-JCH, 2016
WL 7230433, at *2 n.3 (E.D. Mo. Dec. 14, 2016); Tenny v.
Bayer Healthcare, LLC, No. 4:16-CV-1189-RLW, 2016 WL
7235705, at *2 (E.D. Mo. Dec. 13, 2016); Dorman v. Bayer
Corp., No. 4:16-CV-601-HEA, 2016 WL 7033765, at *1 (E.D.
Mo. Dec. 2, 2016). See also Wilcox v. Boehringer
Ingelheim Pharms. Inc., No. 4:16-CV-753-HEA, ECF No. 27
(E.D. Mo. Dec. 7, 2016); Clark v. Pfizer, Inc., No.
4:15-CV-546-HEA, 2015 WL 4648019, at *2 (E.D. Mo. Aug. 5,
Court will consider each of the three bases for federal
subject matter jurisdiction asserted in Defendants'
Notice of Removal.