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Jackson v. Bayer Healthcare Pharmaceuticals, Inc.

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

June 22, 2017

MEISHA JACKSON, et al., Plaintiffs,
v.
BAYER HEALTHCARE PHARMACEUTICALS, INC., et al., Defendants.

          MEMORANDUM AND ORDER OF REMAND

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Bayer Healthcare Pharmaceuticals, Inc.'s (“Bayer”) Motion to Stay (Doc. 3); Motion to Dismiss Out-of-State Plaintiffs (Doc. 11); Motion for Oral Argument on Defendant's Motion to Stay (Doc. 30); and Plaintiffs' Motion to Remand (Doc. 14). For the following reasons, the Court will grant Plaintiffs' Motion to Remand, deny Bayer's Motion for Oral Argument, and deny all other pending motions without prejudice.

         Background

         On September 6, 2013, seventy-five Plaintiffs filed this action in the City of St. Louis Circuit Court, naming as defendants Bayer, Bayer Pharma AG, and Bayer Oy (“collectively, “Defendants”) (Doc. 6). In their original petition, Plaintiffs alleged several state law claims against Defendants arising out of the design, development, manufacture, testing, packaging, promotion, marketing, distribution, labeling, and sale of the Mirena intrauterine contraceptive device (“Mirena device”) (Doc. 6). Notably, Bayer is a corporation organized under the laws of Delaware with a principal place of business in New Jersey; and Lori Nappi, a citizen of New Jersey, and Tiffany Lloyd, a citizen of Delaware, were identified as plaintiffs in the original petition (Id. at ¶¶ 5, 22). As such, Nappi and Lloyd were so-called “removal spoilers” or “diversity destroyers” because their presence in the case destroyed the otherwise complete diversity between the parties. See 28 U.S.C. § 1332(a).

         On September 4, 2014, Bayer removed the action to this Court (“first removal”), arguing that Nappi and Lloyd had been fraudulently joined because their claims were time-barred and alternatively, that they had been fraudulently misjoined to thwart removal of the case to federal court (Doc. 1 in Jackson v. Bayer HealthCare Pharms., Inc., No. 4:14-cv-01520-RWS (E.D. Mo.) (“Jackson I”)). On September 11, 2014, this Court remanded this case back to the state court, concluding that Bayer's statute of limitations defense was not apparent from the face of the original petition, and rejecting Bayer's fraudulent misjoinder argument because the seventy-five Plaintiffs' claims were sufficiently related to support joinder (Doc. 14 in Johnson I).

         On April 21, 2017, with the state court's leave, Plaintiffs amended their petition to add twenty-three additional out-of-state Plaintiffs (Doc. 7). As relevant, none of the new Plaintiffs are citizens of New Jersey or Delaware. Plaintiffs now total ninety-eight unrelated individuals who are citizens of Missouri, New Jersey, Pennsylvania, Ohio, California, Georgia, Oregon, Mississippi, Wisconsin, Iowa, North Carolina, Illinois, Washington, Arkansas, Kentucky, Delaware, California, Maryland, Utah, Louisiana, South Carolina, Virginia, New Mexico, Nebraska, Oklahoma, Colorado, Florida, New York, Minnesota, Tennessee, Connecticut, New Hampshire, Michigan, Indiana, West Virginia, and Texas (Id. at ¶¶ 4-101). In their amended petition, Plaintiffs allege the same state law claims against Defendants arising out of the design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and sale of Mirena devices. Each Plaintiff alleges that she had a Mirena device implanted by her physician and developed serious and/or permanent adverse effects as a result (Id. at ¶¶ 1, 4-101).

         On May 1, 2017, Bayer again removed this case to this Court (“second removal”) (Doc. 1). In its second notice of removal, Bayer asserts (1) that the Court has diversity jurisdiction over this matter, see 28 U.S.C. §§ 1332(a) (diversity jurisdiction), 1446 (removal of civil actions); (2) that the Court has jurisdiction under the Class Action Fairness Act (“CAFA”), see 28 U.S.C. §§ 1332(d) (class action jurisdiction), 1453(a) (removal of class actions); and (3) that its second notice of removal is timely because it was filed within thirty days of April 21, 2017, when Plaintiffs amended their petition (Id.).

         The parties, however, are still not diverse. Bayer is still a corporation organized under the laws of Delaware with a principal place of business in New Jersey, Lloyd is still a plaintiff and a citizen of Delaware, and Nappi remains a plaintiff and a citizen of New Jersey (Docs. 7 at ¶¶ 5, 22, 102; 12 at 4). Despite the lack of complete diversity on the face of the petition, Bayer has moved to dismiss the claims of all the non-Missouri plaintiffs for lack of personal jurisdiction, arguing that the Court should address the issue of personal jurisdiction before it reaches the issue of subject matter jurisdiction (Docs. 11-12). In Bayer's view, each Plaintiff must establish that the Court has personal jurisdiction over her individual claim, and the Court lacks personal jurisdiction over any of the non-Missouri Plaintiffs' individual claims, including those of Nappi and Lloyd (Doc. 12 at 6-9). Bayer does not dispute that the Court has personal jurisdiction with regard to the Missouri Plaintiffs' claims (Id. at 6-9; Doc. 22 at 5-6). According to Bayer, once the Court dismisses the non-Missouri plaintiffs for lack of personal jurisdiction, it will have diversity jurisdiction over the remaining parties, who will then be completely diverse (Doc. 12 at 2; Doc. 22 at 8).

         Moreover, Bayer argues that Plaintiffs' claims are misjoined because each of their ninety-eight claims will require a plaintiff-specific inquiry given that each Plaintiff had her Mirena IUD placed by a different physician at a different time (Doc. 1 at 20; 22 at 11). Finally, Bayer contends that the Court has CAFA jurisdiction because Plaintiffs' counsel has filed nearly identical petitions on behalf of a total of more than 100 plaintiffs in this district (Docs. 1 at 21-28; 22 at 14-15).

         Plaintiffs move to remand the case back to the state court (Docs. 14-15). First, Plaintiffs argue that Bayer's removal is untimely under 28 U.S.C. § 1446(b) because it did not file its second notice of removal within thirty days after it was served with the original petition and because it was not filed within one year after the action was initially filed in the state court as required by 28 U.S.C. § 1446(c)(1) (a case may not be removed on the basis of diversity jurisdiction more than one year after commencement of the action) (Doc. 15 at 5-6 & n.3). Second, Plaintiffs argue that the Court should decide the issue of subject matter jurisdiction before reaching the issue of personal jurisdiction (Id. at 6-9). Third, they contend that Bayer has not invoked the Court's CAFA jurisdiction because there are fewer than 100 plaintiffs and they have not requested a joint trial with plaintiffs in other Mirena cases filed in this district (Id. at 10-14). Fourth, Plaintiffs argue that Bayer's reliance on fraudulent misjoinder to avoid remand is misplaced because Bayer cannot show that Plaintiffs had no reasonable procedural basis to join all ninety-eight Plaintiffs in one action (Id. at 17-19). Finally, they contend that Bayer is subject to personal jurisdiction in Missouri (Id. at 20).

         Bayer opposes remand, urging the Court to reach the issue of personal jurisdiction before it addresses the issue of subject matter jurisdiction. According to Bayer, the parties will be completely diverse-and the Court will have subject matter jurisdiction-once the Court dismisses or remands all the non-Missouri plaintiffs' claims, including those of Nappi and Lloyd, over which it believes the Court lacks personal jurisdiction. (Doc. 22 at 5-15).

         Bayer further argues that this second removal was timely because it filed its second notice of removal within thirty days of the date Plaintiffs amended their petition to join the twenty-three new plaintiffs (Id. at 15-16). According to Bayer, Plaintiffs' April 21, 2017 amended petition was the first “amended pleading, motion, order, or other paper” from which it could ascertain that the case had become removable, and the amendment thus triggered a new 30-day removal window pursuant to 28 U.S.C. § 1446(b)(3) (Doc. 1 at 5). Bayer notes that it could not have removed the twenty-three new Plaintiffs' claims within thirty days of being served the original petition, as they had not yet been made parties (Doc. 22 at 15-16 & n.7). Also, Bayer contends that § 1446(c)(1)'s one-year bar on removals based on diversity jurisdiction does not apply to this case because Plaintiffs have attempted to manipulate the forum and avoid removal of their claims to federal court (Id. at 15-16). In Bayer's view, by amending their petition, Plaintiffs effectively created an entirely new lawsuit which restarted the one-year removal window for purposes of § 1446(c)(1) (Id. at 16 n.8). Alternatively, Bayer argues that Plaintiffs acted in bad faith to prevent removal, as follows:

23 individuals intervened in a lawsuit filed by 75 improperly joined individuals. All 23 of these individuals are diverse from Defendants, and none of them shares any connection to the State of Missouri. None of the 23 individuals alleged they used [the Mirena device] in Missouri, or were injured in Missouri. It would be inequitable to deprive Bayer of its right to remove claims on diversity grounds. And it would be wrong to deny the right to removal simply because these 23 strangers [were] allowed to join an existing case.
The joining of these new unrelated parties is a clear pleading manipulation to avoid federal diversity and removal of their claims. Because Bayer could have removed these new Plaintiffs/intervenors to federal court had they filed their own lawsuit, the one-year bar to removal should be equitably tolled due to ...

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