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Black v. Bayer Corp.

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

June 15, 2017

THERESA BLACK, Plaintiffs,
v.
BAYER CORP., BAYER HEALTHCARE LLC, BAYER ESSURE, INC. f/k/a Conceptus, Inc., BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER A.G., Defendants.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' Motion to Remand, filed on April 20, 2017. (ECF No. 15.) The Motion is fully briefed and ready for disposition.

         BACKGROUND

         On February 28, 2017, Plaintiffs filed their Petition for Damages in the Circuit Court of the City of St. Louis, Missouri. (Petition, ECF No. 1.1). In total, there are 95 Plaintiffs joined to this action.[1] Each Plaintiff claims that she was prescribed and implanted with the Essure system of permanent birth control, which is manufactured and distributed by Defendants, and that as a result she “suffered and will continue to suffer from severe injuries and damages, including but not limited to irregular heavy menstrual cycle bleeding, organ perforation, and severe chronic pain which required surgical intervention to remove the Essure coils or will require surgical intervention to remove the Essure coils in the future.” (Petition, ¶¶ 445, 446, 461, 467-1002.) Plaintiffs allege that their claims arise from “[Defendants'] failure to warn of the risks, dangers, and adverse events associated with Essure as manufactured, promoted, sold and supplied by [Defendants], and as a result of the negligence, callousness, and other wrongdoing and misconduct of [Defendants] as described herein…” (Id., ¶ 462.) Based upon these allegations, Plaintiffs assert the following causes of action: negligence, negligence per se, negligence-misrepresentation, strict liability-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, Missouri Products liability, violation of the Missouri Merchandising Practices Act, and gross negligence/punitive damages. (Id., ¶¶ 1015-1237.)

         Defendants removed the action to this Court on April 14, 2017, asserting diversity jurisdiction under 28 U.S.C. § 1332(a), federal question jurisdiction under 28 U.S.C. § 1331, and diversity jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”). (Notice of Removal, ECF No. 1.) Despite the lack of complete diversity on the face of the Complaint, Defendants contend that there is complete diversity if the Court ignores the citizenship of the non-diverse Plaintiffs who, according to Defendants, were fraudulently misjoined. Defendants also argue that 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. See Id . Defendants have also filed a Motion to Dismiss and a Motion to Sever. (ECF Nos. 4, 7.)

         As mentioned above, Plaintiffs now move for remand, arguing that the Court should address subject matter jurisdiction before personal jurisdiction. Plaintiffs further argue that there is no diversity jurisdiction because their joinder in one action is proper, that no federal question arises from their Complaint, and that CAFA does not confer diversity jurisdiction because there are less than 100 plaintiffs and there has been no motion to consolidate multiple complaints. (ECF Nos. 15, 16.) Plaintiffs have also filed a Motion to Stay, requesting that the Court stay the proceedings on all other issues or motions except for Plaintiff's Motion to Remand. (ECF No. 17.)

         DISCUSSION

         A civil action brought in state court may be removed to the proper district court if the district court has original jurisdiction over the action. See 28 U.S.C. § 1441; In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010). Removal statutes are strictly construed, however, and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. See Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007). The party invoking federal jurisdiction and seeking removal bears the burden of establishing federal jurisdiction by a preponderance of the evidence. See Central Iowa Power Co-op v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009). A case must be remanded if, at any time, it appears that the district court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3).

         Defendants urge this Court to consider the issue of personal jurisdiction before addressing subject matter jurisdiction. The Supreme Court has held that courts have discretion to consider the issue of personal jurisdiction before considering whether they have subject matter jurisdiction, “where personal jurisdiction is straightforward and presents no complex question of state law, and the alleged defect in subject matter jurisdiction raises a difficult question.” Dorman v. Bayer Corp, 2016 WL 7033765, at *1 (E.D. Mo. Dec. 2, 2016 (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999)). “However, ‘in most instances subject-matter jurisdiction will involve no arduous inquiry…[and] both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first.'” Id. (quoting Ruhrgas, 526 U.S. at 587-88)).

         In similar Essure device cases, judges in this district have consistently resolved the subject matter jurisdiction issue first, upon concluding that the personal jurisdiction issue required a more fact-intensive inquiry than the straightforward issue of subject matter jurisdiction. See Jordan v. Bayer Corp., No. 4:17-CV-1330-JAR, 2017 WL 1909059, at *2-3 (E.D. Mo. May 10, 2017) (collecting cases). Upon consideration, this Court will do the same here, as the inquiry regarding subject matter jurisdiction is straightforward. See Dorman, 2016 WL 7033765, at *1. For similar reasons, to the extent Defendants urge the Court to consider the forum non conveniens issue prior to the subject matter jurisdiction issue, the Court declines to do so. See Jordan, 2017 WL 1909059, at *2; Dotson v. Bayer Corp., No. 4:16-cv-01593PLC, 2017 WL 35706, at *3 (E.D. Mo. Jan. 4, 2017).

         In view of the foregoing, the Court will consider each of the bases for federal subject matter jurisdiction asserted by Defendants.

         A. Diversity Jurisdiction

         Federal district courts have original jurisdiction in all civil actions between citizens of different states if the amount in controversy exceeds $75, 000. See 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). Here, 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 the Parties. Nevertheless, Defendants argue that this Court has diversity jurisdiction because the non-Missouri Plaintiffs' claims were fraudulently misjoined.

         “Courts have long recognized fraudulent joinder as an exception to the complete diversity rule.” In re Prempro, 591 F.3d at 620 (citation omitted). “Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal.” Id. (citation omitted). Fraudulent misjoinder is a more recent exception to the complete diversity rule. See Id. “Fraudulent misjoinder occurs when a plaintiff sues a diverse defendant in state court and joins a viable claim involving the nondiverse party, or a resident defendant, even though the ...


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