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Jordan v. Bayer Corp.

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

May 10, 2017

CIARA JORDAN, Plaintiffs,
BAYER CORPORATION, et al, Defendants.



         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., Bayer Healthcare Pharmaceuticals, Inc., and Bayer A.G. (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. 13). Bayer has filed a Motion to Dismiss for Lack of Jurisdiction (Doc. No. 4) and Motion to Sever (Doc. No. 7). Plaintiffs have filed a Motion to Stay (Doc. No. 15), requesting that the Court stay the proceedings on all other issues or motions except Plaintiffs' Motion to Remand. The Motion to Remand is fully briefed and ready for disposition.

         I. Background

         Plaintiffs filed their action on February 25, 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, Negligence Per Se, Negligent Misrepresentation, Failure to Warn, Manufacturing Defect, Common Law Fraud, Constructive Fraud, Fraudulent Concealment, Breach of Express Warranty, Breach of Implied Warranty, Violation of Missouri Products Liability laws, Violation of Missouri Merchandising Practices Act, and Gross Negligence/Punitive Damages.

         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 99 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.; Bayer Healthcare Pharmaceuticals, Inc. are citizens of Delaware and New Jersey; and Bayer AG is a German corporation, where it has its principal place of business in Germany.

         On April 14, 2017, Bayer removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, federal question jurisdiction, 28 U.S.C. §§ 1331, 1441, 1446, and mass action jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). 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. Plaintiffs further argue that CAFA does not confer the Court with diversity jurisdiction because in order to propose a joint trial under CAFA, 100 or more plaintiffs must be joined in a single complaint or move to consolidate multiple complaints. Plaintiffs contend that neither has occurred, thereby barring jurisdiction under CAFA. Furthermore, Plaintiffs argue 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. ...

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