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Jackson v. C.R. Bard, Inc.

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

May 12, 2017

KALEIDAH JACKSON,, Plaintiffs,
v.
C.R. BARD, INC. and BARD PERIPHERAL VASCULAR, INC., Defendants.

          MEMORANDUM AND ORDER

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on plaintiffs' motion to remand the action to the state court from which it was removed for a second time. Defendants have filed a response in opposition, a motion to dismiss the claims of all non-Missouri plaintiffs for lack of personal jurisdiction, a motion to stay pending a transfer decision by the Judicial Panel on Multidistrict Litigation, and a motion to sever and remand the original plaintiffs' claims. All issues are fully briefed.

         I. Background

         On February 11, 2016, ten plaintiffs initiated this action in a Missouri state court to recover damages for injuries they allegedly sustained as a result of being implantated with Inferior Vena Cava (IVC) filters. According to the complaint, the medical devices were designed, manufactured, tested, labelled, marketed, warranted, and sold by defendants C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.

         The complaint identifies a single product line of six generations of IVC filters. Among other things, all of the filters allegedly “contain the same or substantially similar defects[, ] resulting in the same or substantially similar mechanism of injury to” the plaintiffs. Compl. ¶ 158. For example, “draw markings” on the “exterior surface of” all of the IVC filters purportedly “compromise[] the structural integrity” of the filters, a common manufacturing defect that renders each filter “too weak to withstand normal placement within the human body.” Id. ¶¶ 85-86, 124-25, 136- 37, 139, 141, 148, 150, 153, 156. Plaintiffs assert state law-based strict liability claims of defective manufacture, defective design, and inadequate warning, corresponding negligence claims, breach of warranty, negligent misrepresentation, and fraud.

         Defendants initially removed the action on April 5, 2016, invoking jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332(a). Jackson v. C.R. Bard, Inc., No. 4:16-CV-465 (CEJ) (E.D. Mo. Apr. 5, 2016). The defendants argued that the claims of the out-of-state plaintiffs should not be considered for the purpose of diversity jurisdiction because neither they nor their claims had any connection to Missouri. Id. Therefore, according to defendants, the non-Missouri plaintiffs could not establish personal jurisdiction over the defendants in Missouri. Id. They also argued that the non-Missouri plaintiffs were improperly joined, fraudulently joined, and fraudulently misjoined. Id. The Court disagreed and remanded the case to the Twenty-Second Judicial Circuit Court of Missouri on May 2, 2016. Jackson v. C.R. Bard, Inc., No. 4:16-CV-465 (CEJ) (E.D. Mo. May 2, 2016).

         On February 17, 2017, plaintiffs amended their complaint, adding nineteen additional plaintiffs (the amended plaintiffs). On March 16, 2017, defendants again removed the case to this Court on the basis of diversity of citizenship. Defendants argue that because the amended plaintiffs are all diverse from defendants, the Court should sever and remand the ten original plaintiffs (who are non-diverse). Doing so, defendants argue, would allow the Court to properly hear the claims of the amended plaintiffs in this Court. Id. Plaintiffs argue that remand is required because (1) the case was filed more than one year ago and therefore removal was not timely and (2) the grounds the defendants assert in support of removal have already been rejected by the Court.

         II. Legal Standards

         “A defendant may remove a state law claim to federal court only if the action originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). The removing 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). “All doubts about federal jurisdiction should be resolved in favor of remand to state court.” In re Prempro, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case must be remanded if, at anytime, it appears that the district court lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3).

         28 U.S.C. § 1446 provides the relevant procedural requirements for removal. Specifically, that provision states:

(b)…(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

         Subsection (b)(3) provides a caveat to the above-quoted provision:

(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may ...

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