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., 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 remanded many
of these cases back to the state court. This matter is
before the Court on Plaintiffs' Motion to Remand (Doc.
16). Bayer has filed a Motion to Dismiss for Lack of
Jurisdiction (Doc. 4) and Motion to Sever (Doc. 7).
Plaintiffs have filed a Motion to Stay (Doc. 18), 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.
filed their action on March 1, 2017, seeking damages for
injuries sustained as a result of the implantation and use of
Essure, a contraceptive device manufactured by Bayer. In
their complaint, as amended pre-removal, 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 Consumer Protection Laws, Violation of Missouri
Products Liability laws, Violation of the Missouri
Merchandising Practices Act, and Gross Negligence/Punitive
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 57
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. and Bayer Healthcare Pharmaceuticals, Inc. are
citizens of Delaware and New Jersey.
April 26, 2017, Bayer removed the action to this Court on the
basis of diversity jurisdiction, see 28 U.S.C.
§ 1332; federal question jurisdiction, see 28
U.S.C. §§ 1331; and mass action jurisdiction
pursuant to the Class Action Fairness Act
(“CAFA”), see 28 U.S.C. § 1332(d)
(Doc. 1). 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.
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
ground.'”). The Court will consider each of the
bases for federal subject matter jurisdiction asserted in
Bayer's Notice of Removal.
based on diversity jurisdiction 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 between ...