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Langston v. Bayer Corp. Bayer Healthcare LLC

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

May 9, 2017

SITAFIA LANGSTON, et al., Plaintiffs,
v.
BAYER CORPORATION, BAYER HEALTHCARE LLC, BAYER ESSURE, INC. f/k/a CONCEPTUS, INC., and BAYER HEALTHCARE PHARMACEUTICALS, INC., Defendants.

          MEMORANDUM AND ORDER OF REMAND

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This is one of several cases filed in the Circuit Court of the City of St. Louis, Missouri, against Defendants Bayer Corporation, Bayer Healthcare LLC, Bayer Essure, Inc., and Bayer Healthcare Pharmaceuticals, Inc. (collectively “Bayer”) seeking damages for injuries resulting from the use of the contraceptive device Essure, and removed to this district. Courts in this district have universally remanded these cases to the state court.[1] This matter is before the Court on Plaintiffs' Motion to Remand (Doc. No. 12). Bayer has filed a Motion to Dismiss (Doc. No. 4), Motion to Sever (Doc. No. 7), Motion to Stay All Proceedings on Defendants' Motions Pending Ruling on Motion to Remand (Doc. No. 14), and Motion for Oral Argument (Doc. No. 19). The motions are fully briefed and ready for disposition.

         I. Background

         Plaintiffs filed their action on January 16, 2017, seeking damages for injuries sustained as a result of the implantation and use of Essure, a contraceptive device manufactured by Bayer. Plaintiffs bring state law claims for negligence, strict products liability, breach of express and implied warranties, and fraud. As support for their state law claims, Plaintiffs allege, in relevant part, that Bayer violated provisions of the Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 301 et seq., and related provisions of the Code of Federal Regulations (“CFR”). The 94 Plaintiffs reside in multiple states, including Missouri, Indiana, Pennsylvania, and New Jersey. Defendant Bayer Corporation is a citizen of Indiana, where it is incorporated, and Pennsylvania, where it has its principal place of business[2]; Defendant Bayer Healthcare LLC is a limited liability company formed under the laws of Delaware whose members are citizens of Delaware, New Jersey, Pennsylvania, the Netherlands, and Germany; Defendants Bayer Essure Inc. and Bayer Healthcare Pharmaceuticals, Inc. are citizens of Delaware and New Jersey.

         On March 13, 2017, Bayer removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, and federal question jurisdiction, 28 U.S.C. §§ 1331, 1441. Despite the lack of complete diversity on the face of the complaint, Bayer contends there is complete diversity if the Court ignores the citizenship of the non-diverse Plaintiffs who, Bayer asserts, were fraudulently joined or fraudulently misjoined. Bayer further argues the Court should dismiss the claims of the non-Missouri Plaintiffs for lack of personal jurisdiction or, alternatively, under the doctrine of forum non conveniens.

         Plaintiffs move to remand the case to state court, arguing that the Court should address subject matter jurisdiction before personal jurisdiction and remand for lack of subject matter jurisdiction because complete diversity does not exist and because their claims are not fraudulently joined. Furthermore, Plaintiffs contend that no federal question arises from their complaint.

         II. Legal standard

         An action is removable to federal court if the claims originally could have been filed in federal court. 28 U.S.C. § 1441; In re Prempro Products Liability Litigation, 591 F.3d 613, 619 (8th Cir. 2010). The defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). A case must be remanded if, at any time, it appears that the district court lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3). Any doubts about the propriety of removal are resolved in favor of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007).

         III. Discussion

         Bayer contends the Court can and should consider the threshold issue of personal jurisdiction before determining whether the Court has subject matter jurisdiction over this case. In similar Essure device cases, judges in this district have consistently resolved the subject-matter jurisdiction issues first, upon concluding that personal jurisdiction issues require a more fact-intensive inquiry than the straightforward issue of subject-matter jurisdiction. See, e.g., Dotson, 2017 WL 35706, at *3 (collecting cases); see also, Whitlock, 2017 WL 564489, at *2; Hall, 2017 WL 86011, at *2. Upon consideration, the Court will do so here, where the inquiry regarding subject matter jurisdiction is straightforward. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999).

         Bayer also urges the Court to consider forum non conveniens issues prior to subject-matter jurisdiction issues, because dismissing the non-Missouri Plaintiffs' claims on forum non conveniens grounds would leave only completely diverse parties before the Court. Bayer argues that each non-Missouri Plaintiff has an adequate alternative forum in her home state. Because the subject-matter jurisdiction issues are not arduous or difficult, the Court declines to resolve issues of forum non conveniens prior to subject-matter jurisdiction issues. Dotson, 2017 WL 35706, at *3 (citing Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 436 (2007) (“When a district court ‘can readily determine that it lacks jurisdiction over the cause or the defendant, … the proper course would be to [resolve the action] on that ground.'”).

         The Court will consider each of the bases for federal subject matter jurisdiction asserted in Bayer's Notice of Removal.

         A. Diversity jurisdiction

         Removal in this case was premised on diversity jurisdiction, which requires an amount in controversy greater than $75, 000 and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). “Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship.” OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). There is no dispute that the amount in controversy is over $75, 000. Likewise, the parties agree that Plaintiffs' complaint does not allege complete diversity ...


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