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 on April 19, 2017. (ECF No. 9.) The Motion has
been fully briefed and is ready for disposition.
February 28, 2017, Plaintiffs filed their Petition in the
Circuit Court of the City of St. Louis, Missouri. (Petition,
ECF No. 1.1.) In total, there are 70 Plaintiffs joined to
this action.Plaintiffs allege that they, or their next
friend, suffered damages as a result of their use of the drug
Risperdal, which was designed, developed, tested, labeled,
packaged, distributed, marketed, and sold throughout the
United States by Defendants. Id. Plaintiffs further
allege that Defendants' engaged in unlawful conduct
involving the “concealment of the true character,
quality and nature of their product, …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., ¶¶ 170-171. Based upon
these allegations, Plaintiffs assert 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, asserting
diversity jurisdiction under 28 U.S.C. §
1332(a). (Notice of Removal, ECF No. 1.) Defendants
contend that there exists complete diversity among “all
properly joined and served parties, ” and that
“the amount in controversy exceeds $75, 000.00,
exclusive of interest and costs.” Id. at 2-3.
Defendants acknowledge, however, that two Plaintiffs and
several Defendants are citizens of New Jersey, and that four
Plaintiffs and several Defendants are citizens of
Pennsylvania, thereby defeating complete diversity as
required by section 1332(a). Id. at 11. Defendants
nevertheless insist that the citizenship of all non-Missouri
Plaintiffs should be disregarded, arguing that the
out-of-state Plaintiffs cannot establish personal
jurisdiction over any Defendant in any court in Missouri, and
that their claims were fraudulently joined. Id. at
17-20. Defendants emphasize that their removal does not rely
on the doctrine of fraudulent misjoinder. Id. at 2.
contemporaneously filed a Motion to Dismiss, or in the
Alternative, Motion for a More Definite Statement. (ECF No.
4.) As mentioned above, Plaintiffs now move for remand.
Plaintiffs cite to similar cases from this District in which
the Court declined to resolve personal jurisdiction issues
prior to addressing the straight-forward issue of subject
matter jurisdiction, and remanded the matter due to the
facial lack of complete diversity.
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 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. See Dorman, 2016 WL 7033765,
Triplett v. Janssen Pharmaceuticals, Inc., No.
4:14CV2049 AGF (E.D. Mo. July 7, 2015 (ECF No. 30)), another
Court in this District held that Defendants failed to
establish fraudulent joinder based on the purported lack of
personal jurisdiction. The Court in Triplett cited
two other recent cases from this District that held the same,
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
several 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 (E.D. Mo. July 13, 2015 (ECF No. 33))
consideration, this Court will follow the approach taken in
Triplett, and remand this matter for lack of subject
matter jurisdiction. See Ward, No. 4:15CV408 AGF;
see also T.R. v. Janssen Pharmaceuticals, Inc., No.
4:16CV1860 CEJ, 2017 WL 492827, at *3 (E.D. Mo. Feb. 7, 2017)
(“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
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand
(ECF No. 9) is GRANTED, and that this matter is REMANDED to
the Circuit Court of the City of St. Louis, State of
Missouri. A ...