United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
A. ROSS UNITED STATES DISTRICT JUDGE.
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. 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
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.
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; 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
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
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.
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).
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).
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
Court will consider each of the bases for federal subject
matter jurisdiction asserted in Bayer's Notice of