United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Motion to
Remand, filed April 19, 2017. (ECF No. 11). The motion is
fully briefed and ready for disposition.
about February 28, 2017, Plaintiffs filed their Petition in
the Circuit Court of the City of St. Louis, Missouri.
Plaintiffs filed a First Amended Petition on March 27, 2017.
(First Amended Petition (hereinafter “Complaint”
or “Compl.”), ECF No. 7). In total, there are 80
Plaintiffs joined to the action. Plaintiffs claim that they,
or their next friend, suffered damages as a result of their
use of the drug Risperdal, which allegedly was designed,
developed, tested, labeled, packaged, distributed, marketed,
and sold throughout the United States by Defendants. (Compl.,
P. 3). These claims are alleged to be the result of
Defendants' illegal conduct, including their
“concealment of the true character, quality and nature
of their product, ….including misrepresenting known
dangers and/or defects in Risperdal and/or arising out of the
use of Risperdal and a continued and systematic failure to
disclose and/or cover-up such information from/to the
Plaintiffs, Plaintiffs' physicians, and the
public.” (Id., ¶¶ 180, 181). Based
on these allegations, Plaintiffs bring claims for negligence,
fraud, strict product liability (failure to warn), strict
product liability, negligent misrepresentation, breach of
express warranty, breach of implied warranty, violation of
the Missouri Merchandising Practices Acts, conspiracy, and
medical expenses incurred by parent. (Id.,
removed the action to this Court on April 12, 2017, on the
basis of diversity jurisdiction under 28 U.S.C. §
1332(a). (Notice of Removal, ECF No. 1).
Defendants maintain there exists complete diversity among
“all properly joined and served parties, and the amount
in controversy exceeds $75, 000.00, exclusive of interest and
costs.” (Id., P. 3). Defendants acknowledge
that four Plaintiffs and several Defendants are citizens of
Pennsylvania, and two Plaintiffs and several Defendants are
citizens of New Jersey, thereby defeating complete diversity
as required by 28 U.S.C. § 1332(a), but insist the
citizenship of all non-Missouri Plaintiffs should be
disregarded as their claims were fraudulently joined in that
these Plaintiffs cannot establish personal jurisdiction over
any Defendant in any court in Missouri. (Id., PP.
11- 12, 18-21). Defendants emphasize that their removal does
not rely on the doctrine of fraudulent misjoinder.
(Id., P. 2).
same day that they removed the case, Defendants moved to
dismiss the claims of the out-of-state Plaintiffs for lack of
personal jurisdiction, and/or to dismiss the Complaint for
failure to state a claim or order Plaintiffs to file a more
definite statement. (ECF No. 4). As noted above, Plaintiffs
filed the instant Motion to Remand on April 19, 2017, citing
to similar cases from this District in which the Court
declined to resolve personal jurisdiction issues prior to
addressing the straight-forward subject matter jurisdiction
analysis, and remanded the cases due to the facial lack of
their response to Plaintiffs' Motion to Remand,
Defendants urge this Court to consider the issue of personal
jurisdiction before addressing subject matter jurisdiction.
The Supreme Court has held that courts have discretion to
consider the issue of personal jurisdiction before
considering whether they have subject matter jurisdiction,
“where personal jurisdiction is straightforward and
presents no complex question of state law, and the alleged
defect in subject matter jurisdiction raises a difficult
question.” Dorman v. Bayer Corp., No.
4:16CV601 HEA, 2016 WL 7033765, at *1 (E.D. Mo. Dec. 2, 2016)
(citing Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 588 (1999)). “However, ‘in most instances
subject-matter jurisdiction will involve no arduous
inquiry…[and] both expedition and sensitivity to state
courts' coequal stature should impel the federal court to
dispose of that issue first.'” Id.
(quoting Ruhrgas, 526 U.S. at 587-88). See also
Swann v. Johnson & Johnson, No. 4:14CV1546 CAS, 2014
WL 6850776, at *2 (E.D. Mo. Dec. 3, 2014) (declining to
consider issues of personal jurisdiction and venue when the
issue of subject matter jurisdiction was straightforward and
had already been addressed by judges in this district). Upon
consideration, this Court in its discretion will determine
the issue of subject matter jurisdiction first, as the
question of personal jurisdiction requires a more
fact-intensive inquiry. Dorman, 2016 WL 7033765, at
Triplett v. Janssen Pharmaceuticals, Inc., No.
4:14CV2049 AGF, ECF No. 30 (E.D. Mo. July 7, 2015), another
Court in this District held that Defendants failed to
establish fraudulent joinder based on the purported lack of
personal jurisdiction. (See Id., P. 7). The Court
cited two other recent cases from this district that so held,
Gracey v. Janssen Pharms., Inc., No.
4:15CV407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4, 2015),
and Simmons v. Sketchers USA, Inc., No. 4:15CV340
CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9, 2015), as well
as numerous cases from other districts.
The Court concluded that because the defendants' theory
of fraudulent joinder failed to attack the merits of the
non-diverse plaintiffs' claims, the defendants failed to
establish that there is no reasonable basis in fact or law
supporting these claims. Therefore, the Court concluded that
the defendants failed to satisfy their burden to establish
fraudulent joinder, and the Court remanded the case for lack
of subject matter jurisdiction, leaving to the state court
the question of personal jurisdiction.
Ward v. Ortho-McNeil-Janssen Pharmaceuticals, Inc.,
No. 4:15CV408 AGF, ECF No. 33, P. 4 (E.D. Mo. July 13, 2015)
(citing Triplett, No. 4:14CV2049 AGF, ECF No. 30,
consideration, this Court will follow the approach taken in
Triplett, and remand this case for lack of subject
matter jurisdiction. See Ward, No. 4:15CV408 AGF,
ECF No. 33, P. 4. See also T.R. v. Janssen
Pharmaceuticals, Inc., No. 4:16CV1860 CEJ, 2017 WL
492827, at *3 (E.D. Mo. Feb. 7, 2017) (internal quotations
and citations omitted) (“Courts in this district have
repeatedly held that an alleged lack of personal jurisdiction
does not establish fraudulent joinder….This Court
agrees that the fraudulent joinder doctrine requires the
Court to consider the merits of plaintiffs' claims under
state law, and a personal jurisdiction challenge does not go
to the merits of the claim.”).
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand
(ECF No. 11) is GRANTED, and this matter is REMANDED to the
Circuit Court of the City of St. Louis, State of Missouri. A