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Lewis v. Johnson & Johnson

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

March 10, 2017

LILLIE LEWIS, et al., Plaintiffs,
JOHNSON & JOHNSON, et al., Defendants.



         This case is before the Court on Plaintiffs' Motion to Remand this case to state court. (Doc. No. 19). The motion has been fully briefed. The Court takes up this motion first, as the question of whether this Court has jurisdiction is a threshold issue. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. No. 29). For the reasons stated herein, the case is hereby remanded to the Twenty-Second Circuit Court of the State of Missouri.

         I. Background

         Plaintiffs filed this action on October 12, 2016 in the Circuit Court of the City of St. Louis, Missouri. (Doc. No. 1-7). An Amended Petition was filed on November 14, 2016. Id. Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (collectively “J & J Defendants”) filed for removal of this case to federal court on November 30, 2016. (Doc. No. 1). Defendant Imerys Talc America, Inc. (“Imerys”) consented to the removal. (Doc. No. 13).

         Plaintiffs are twenty-six women (or in the case of the deceased, their personal representatives) who allegedly developed ovarian cancer after using talcum powder or a talc-based product for feminine hygiene purposes. Plaintiffs claim that they are variously citizens of Arizona, California, Florida, Illinois, Kansas, Massachusetts, Michigan, Missouri, Nevada, New Jersey, Oregon, Pennsylvania, Texas, Utah, Washington and Wisconsin. According to the Amended Petition, six of these women are citizens of Missouri or were when they were living.

         The J & J Defendants are New Jersey corporations with their principal places of business in New Jersey. Defendant Imerys is a Delaware Corporation with its principal place of business in California, though registered to do business in the State of Missouri. Imerys is alleged to be successor in interest to Luzenac America, Inc. Plaintiffs allege that all defendants are involved in the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of the products known as Johnson & Johnson Baby Powder and Shower-to-Shower.

         Plaintiffs assert claims of strict liability for failure to warn, strict liability based on defective design, negligence, negligent misrepresentation, fraud, civil conspiracy, “concert of action, ” breach of express warranty, breach of implied warranty, violation of the Missouri Merchandising Practices Act (§ 407.020 R.S.Mo. et seq.), and wrongful death. They also assert a claim for punitive damages.

         Defendants removed the case to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. With respect to diversity jurisdiction, Defendants argue that although there is a lack of complete diversity on the face of the Amended 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 argue that diversity jurisdiction exists because Plaintiffs' claims have been fraudulently misjoined in an attempt to keep the case out of federal court.

         On December 8, 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. Defendants oppose the motion to remand.

         II. Legal Standard

         “A 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 party 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).

         III. Discussion

         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 initial dispute between the parties 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.

         In Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), the Supreme Court noted that “in most instances subject-matter jurisdiction will involve no arduous inquiry, ” and that in 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. It is within a court's discretion, however, to consider the issue of personal jurisdiction first in cases where the question is straightforward ...

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