United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Janssen
Pharmaceuticals, Inc.; Johnson & Johnson; Janssen
Research & Development, LLC; and Patriot Pharmaceuticals,
LLC's Motion to Dismiss, or in the Alternative, Motion
for More Definite Statement (Doc. 4); Plaintiffs' Motion
to Remand (Doc. 9); and Plaintiffs' Motion to Stay (Doc.
11). For the following reasons, the Court will grant
Plaintiffs' Motion to Remand (Doc. 9), and deny all other
pending motions without prejudice (Docs. 4, 11).
February 27, 2017, Plaintiffs filed this action in the City
of St. Louis Circuit Court (Doc. 6). Their petition alleges
several state law claims against Defendants arising out of
the design, development, testing, labeling, packaging,
distribution, marketing, and sale of Risperdal (risperidone),
Invega (paliperidone), and generic risperidone (Id.
at 3, 23-37, 41-58). Plaintiffs allege that they or their
spouses, children, wards, and/or decedent family members
ingested Invega, Risperdal, or an authorized generic thereof,
and developed various serious and/or permanent adverse
effects as a result (Id. at 3-15, 37-40). Plaintiffs
are 72 unrelated individuals who are citizens of Alabama,
Arizona, California, Colorado, Florida, Georgia, Idaho,
Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Mississippi, Missouri, Nebraska, New Jersey,
New York, North Carolina, Ohio, Pennsylvania, Rhode Island,
Tennessee, Texas, Virginia, Washington, West Virginia, and
Wisconsin (Id. at 5-15; Doc. 1 at 11-12).
April 13, 2017, Defendants removed the action to this Court
on the basis of diversity jurisdiction (Doc. 1). The parties,
however, are not diverse. Two plaintiffs and Johnson &
Johnson are citizens of New Jersey; two plaintiffs and
Janssen Research & Development, LLC are citizens of
Pennsylvania. Patriot Pharmaceuticals, LLC is a citizen of
Pennsylvania and New Jersey. Janssen Pharmaceuticals is a
Pennsylvania corporation with its principal place of business
in New Jersey (Docs. 1 at 11-12; 6 at 5, 7, 15-17 64, 66).
the lack of complete diversity on the face of the complaint,
Defendants have moved to dismiss the claims of all
non-Missouri plaintiffs for lack of personal jurisdiction, or
alternatively, for failure to state a claim, arguing that the
Court should address these issues, before it reaches the
issue of subject matter jurisdiction (Docs. 4-5). In
Defendants' view, each Plaintiff must establish that the
Court has personal jurisdiction over his or her individual
claim, and that the Court lacks personal jurisdiction over
the non-Missouri Plaintiffs' individual claims (Doc. 5 at
2-3). Defendants do not dispute that the Court has personal
jurisdiction with regard to the Missouri Plaintiffs'
claims (Id. at 2). Defendants also argue that
Plaintiffs have failed to allege sufficient facts to state
viable claims against them (Id. at 13-15).
move to remand the case back to the state court, arguing that
removal based on diversity jurisdiction was improper because
the parties are not completely diverse and the Court thus
lacks subject matter jurisdiction (Docs. 9-10). Defendants
oppose remand, arguing that the non-Missouri plaintiffs have
been “fraudulently joined” to defeat diversity
jurisdiction, and that their citizenship should thus be
disregarded for purposes of determining whether the parties
are completely diverse (Docs. 1, 16). Specifically,
Defendants argue that the non-Missouri Plaintiffs' claims
are fraudulent because their claims have no basis in fact and
law, i.e., because no Missouri court can, consistently with
the Due Process Clause of the United States Constitution,
order recovery on a claim over which it lacks personal
jurisdiction (Docs. 1 at 18-21; 16). Defendants urge the
Court to address the issue of personal jurisdiction-the
resolution of which they believe would render the parties
completely diverse-before reaching the issue of subject
matter jurisdiction (Doc. 16). Plaintiffs have also moved to
stay the case pending the Court's ruling on their motion
to remand, which Defendants oppose (Docs. 11-12, 15, 18).
clearly within the Court's discretion whether to decide
issues of personal or subject matter jurisdiction first.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88
(1999) (recognizing that where, as here, the issue of subject
matter jurisdiction is straightforward, “expedition and
sensitivity to state courts' coequal stature should impel
the federal court to dispose of that issue first.”).
Here, the Court declines to rule on issues of personal
jurisdiction first, as the inquiry regarding subject matter
jurisdiction is not arduous, and the issues of personal
jurisdiction and failure to state a claim would require a
more fact-intensive inquiry. Timms v. Johnson &
Johnson, No. 4:16-CV-00733-JAR, 2016 WL 3667982, at *2
(E.D. Mo. July 11, 2016) (citing Curtis Henderson v.
Combe Inc., Case No. 4:16-CV-283-RWS, ECF No. 10 (E.D.
Mo. Mar. 24, 2016)).
defendant may remove a state law claim to federal court only
if the action originally could have been filed there.”
In re Prempro Products Liability Litigation, 591
F.3d 613, 619 (8th Cir. 2010) (citing Phipps v.
FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)); see
also 28 U.S.C. § 1441(a). The party invoking
jurisdiction bears the burden of establishing federal
jurisdiction by a preponderance of the evidence. Altimore
v. Mount Mercy College, 420 F.3d 763, 768 (8th Cir.
2005). “All doubts about federal jurisdiction should be
resolved in favor of remand to state court.”
Prempro, 591 F.3d at 620 (citing Wilkinson v.
Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)).
district courts generally have original jurisdiction in civil
actions between citizens of different states if the amount in
controversy exceeds $75, 000.00, exclusive of interest and
costs. Manning v. Wal-Mart Stores East, Inc., 304
F.Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing 28 U.S.C. §
1332(a)(1)). Diversity jurisdiction also requires complete
diversity of the parties, i.e., that no defendant hold
citizenship in the same state where any plaintiff holds
citizenship. OnePoint Solutions, LLC v. Borchert,
486 F.3d 342, 346 (8th Cir. 2007) (citing Owen Equip.
& Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)).
Defendants assert that this case falls within the
“fraudulent joinder” doctrine. “Courts have
long recognized fraudulent joinder as an exception to the
complete diversity rule.” Prempo, 591 F.3d at
620. “Fraudulent joinder occurs when a plaintiff files
a frivolous or illegitimate claim against a non-diverse
defendant solely to prevent removal.” Id.
(citing Filla v. Norfolk S. Ry. Co., 336 F.2d 806,
809 (8th Cir. 2003)). To establish fraudulent joinder, the
removing party must show that “the plaintiff's
claim against the diversity-destroying defendant has
‘no reasonable basis in fact and law.'”
Knudson v. Systs. Painters, Inc., 634 F.3d 968, 980
(8th Cir. 2011) (quoting Filla, 336 F.3d at 810).
“[I]f it is clear under governing state law
that the complaint does not state a cause of action against
the non-diverse defendant, the joinder is fraudulent and
federal jurisdiction of the case should be retained.”
Id. In contrast, “joinder is not fraudulent
where ‘there is arguable a reasonable basis for
predicting that the state law might impose liability based
upon the facts involved.'” Id. (quoting
Filla, 336 F.3d at 811).
misjoinder is a more recent exception to the complete
diversity rule. As explained by the Eighth Circuit,
“[f]raudulent misjoinder occurs when a plaintiff sues a
diverse defendant in state court and joins a viable claim
involving a nondiverse party, or a resident defendant, even
though the plaintiff has no reasonable procedural basis to
join them in one action because the claims bear no relation
to each other.” Prempo, 591 F.3d at 620. While
acknowledging the fraudulent misjoinder doctrine, the Eighth
Circuit has expressly declined to adopt or reject it.
Id. at 622.
attempt to frame their argument in terms of fraudulent
joinder. However, the Court concludes that, properly
characterized, Defendants argument is instead based on the
theory of fraudulent misjoinder. As Defendants themselves
note, “[f]raudulent misjoinder challenges the
propriety of joining viable claims into a single
action while fraudulent joinder challenges the
viability of the claims themselves” (Doc. 16
at 14). Here, Defendants do not dispute that the non-Missouri
Plaintiffs have plausible claims under substantive state law;
rather, they challenge the propriety of joining the
non-Missouri Plaintiffs into a single action over which the
Court has established personal jurisdiction over
Defendants.See Gracey v. Janssen Pharm.,
Inc., No. 4:15-CV-407 (CEJ), 2015 WL 2066242, at *3
(E.D. Mo. May 4, 2015) (discussing distinction between
fraudulent joinder and fraudulent misjoinder where, after
removing case to federal court, Defendants argued the ...