United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
& 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.
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.
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.
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.
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).
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.
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