United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants' motion to
dismiss pursuant to Federal Rules of Civil Procedure 8, 9(b),
12(b)(2), and 12(b)(6), and defendants' motion to sever.
Also before the Court are plaintiffs' motions to remand
and stay this action. The issues are fully briefed.
January 19, 2017, the plaintiffs initiated this action in the
Circuit Court for the City of St. Louis, Missouri to recover
damages for injuries they allegedly sustained as a result of
using Essure, a medical device manufactured and sold by the
defendants. In the complaint, plaintiffs assert claims of (1)
negligence, (2), negligence per se, (3) negligent
misrepresentation, (4) strict liability for failure to warn
and manufacturing defects, (5) fraud, (6) constructive fraud,
(7) fraudulent concealment, (8) breach of express and implied
warranties, (9) violations of assorted state consumer
protection laws, (10) Missouri products liability under Mo.
Rev. Stat. § 537.760, (11) violation of the Missouri
Merchandising Practices Act under Mo. Rev. Stat. §
407.020, and (12) gross negligence.
94 plaintiffs, seven are citizens of Missouri. One plaintiff
is an Illinois citizen who allegedly had the device implanted
in Missouri. The remaining plaintiffs are citizens of 25
March 9, 2017, defendants Bayer Corporation, Bayer Essure,
Inc., Bayer HealthCare LLC, and Bayer HealthCare
Pharmaceuticals, Inc., jointly removed the action to this
Court on the basis of diversity jurisdiction, 28 U.S.C.
§ 1332, and federal question jurisdiction, 28 U.S.C.
§ 1332. Bayer Corporation is a citizen of New
Jersey and Indiana; Bayer Healthcare LLC is a citizen of
Delaware, Pennsylvania, New Jersey, Germany, and the
Netherlands; Bayer Essure, Inc. and Bayer Healthcare
Pharmaceuticals, Inc., are citizens of Delaware and New
Jersey; and Bayer A.G. is a German corporation. Some of the
plaintiffs are citizens of Delaware, Indiana, and
Pennsylvania. Despite the lack of complete diversity on the
face of the complaint, defendants argue that they properly
removed this case. Specifically, they contend that removal
was proper because the diversity-destroying plaintiffs were
misjoined, jurisdiction lies under the Class Action Fairness
Act, and plaintiffs plead violations of federal law, thus
invoking federal question jurisdiction. Plaintiffs counter
that all of the claims are properly joined, and the Court
lacks subject-matter jurisdiction over this action in the
absence of complete diversity of the parties. They also
contest defendants' assertion that federal question
jurisdiction exists here. Plaintiffs urge the Court to
refrain from ruling on the defendants' motions and
instead rule on their remand motion first.
their motion to dismiss, the defendants assert (1) lack of
personal jurisdiction over the out-of-state plaintiffs'
claims, (2) forum non-conveniens with respect to the
out-of-state plaintiffs' claims, (3) express and implied
preemption, (4) failure to state a claim on which relief can
be granted, and (5) failure to plead fraud claims with
particularity. Defendants argue that the Court should address
the “straightforward” personal jurisdiction
issues first. [Doc. #4].
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);
is axiomatic that a court may not proceed at all in a case
unless it has jurisdiction.” Crawford v. F.
Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir.
2001). “The requirement that jurisdiction be
established as a threshold matter ‘spring[s] from the
nature and limits of the judicial power of the United States,
' and is ‘inflexible and without
exception.'” Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94-95 (1998) (quoting
Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S.
379, 382 (1884)). Defendants argue that, in this case, the
Court should dismiss the claims of the non-Missouri
plaintiffs for lack of personal jurisdiction before
addressing subject matter jurisdiction.
Ruhrgas AG v. Marathon Oil Co., the Court has
discretion to determine whether to consider its
subject-matter jurisdiction or personal jurisdiction first.
526 U.S. 574, 578 (1999) (holding that “[c]ustomarily,
a federal court first resolves doubts about its jurisdiction
over the subject matter, but there are circumstances in which
a district court appropriately accords priority to a personal
jurisdiction inquiry, ” or otherwise stated,
“there is no unyielding jurisdictional
hierarchy”). “If personal jurisdiction raises
‘difficult questions of [state] law, ' and
subject-matter jurisdiction is resolved ‘as
eas[ily]' as personal jurisdiction, a district court will
ordinarily conclude that ‘federalism concerns tip the
scales in favor of initially ruling on the motion to
remand.'” Id. at 586 (quoting Allen v.
Ferguson, 791 F.2d 611, 616 (7th Cir. 1986)).
Conversely, a district court may also prioritize
“judicial economy and restraint.” Id.
And if personal jurisdiction “turns on federal
constitutional issues, ‘federal intrusion into state
courts' authority . . . is minimized.'”
Id. at 586-87 (quoting Asociacion Nacional de
Pescadores v. Dow Quimica, 988 F.2d 559, 566 (5th Cir.
argue that the claims of the 86 non-Missouri plaintiffs
should be dismissed for lack of personal
jurisdiction. In this case the Court will prioritize the
personal jurisdiction inquiry, which involves significant
federal constitutional and judicial economy concerns.
Ruhrgas AG, 526 U.S. at 578. Moreover, recent
decisions have made personal jurisdiction the more
straightforward inquiry. Siegfried v. Boehringer
Ingelheim Pharm., Inc., No. 4:16-CV-1942 (CDP), 2017 WL
2778107, at *2-3 (E.D. Mo. June 27, 2017).