United States District Court, E.D. Missouri, Eastern Division
ROBERT SWANN, individually and on behalf of the Estate of VALERIE SWANN, deceased, et al., Plaintiffs,
JOHNSON & JOHNSON, et al., Defendants.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
case comes before the Court on plaintiffs' emergency
motion to remand (#70) and motion to expedite ruling on
plaintiffs' emergency motion to remand (#75). The
removing defendants oppose plaintiffs' motion to remand;
alleging that this Court should address the issue of personal
jurisdiction, in light of the United States Supreme
Court's ruling in Bristol-Myers Squibb v. Superior
Court of California, 137 S.Ct. 1773 (2017), before
addressing subject matter jurisdiction. The matters are fully
briefed and ripe for disposition.
case was originally filed on July 31, 2014 in Missouri state
court. The 62 plaintiffs from 28 states - including Missouri,
New Jersey, and California - claimed they, or a family
member, were each injured as a result of their use of
defendants' talc products. The defendants, citizens of
New Jersey, Delaware, and California, removed the action to
federal court on September 10, 2014, based on diversity
jurisdiction. The problem, however, was that the parties were
not diverse on the face of the complaint. To address this
issue, defendants argued that many of the out-of-state
plaintiffs - including plaintiffs from New Jersey and
California - were procedurally misjoined - having no
connections to the state of Missouri. Further, defendants
maintained that the court should have addressed personal
jurisdiction before addressing subject matter jurisdiction -
which would have allowed the court to remove all of the
procedurally misjoined plaintiffs and therefore established
diversity jurisdiction in this Court. Apparently, this group
of plaintiffs, like many others, were purposefully, but
legally, created as a strategic means to avoid this
Court's subject matter jurisdiction both under diversity
jurisdiction and the Class Action Fairness Act
two and a half years ago, this Court, citing the
non-diversity of the parties and ruling against the
defendants' misjoinder arguments, remanded the action
back to the Circuit Court of the City of St. Louis. Swann
v. Johnson & Johnson, Case No. 4:14-CV-1546 CAS,
2014 WL 6850776 (E.D. Mo. Dec. 3, 2014). The Court ruled, as
many have in this district, that subject matter jurisdiction
was a straightforward legal issue as compared to the
fact-intensive inquiry of personal jurisdiction. The parties
then engaged in several contentious years of litigation in
on June 19, 2017, the United States Supreme Court in
Bristol-Myers Squibb Co. v. Superior Court of
California, 137 S.Ct. 1773 (June 19, 2017), essentially
“changed the game” as it relates to these types
of actions. The Court held that to have specific personal
jurisdiction, the suit “must aris[e] out of or relat[e]
to the defendant's contacts with the forum.”
Id. at 1780 (internal quotation omitted).
Specifically, there must be “an affiliation between the
forum and the underlying controversy, principally, [an]
activity or an occurrence that takes place in the forum State
and is therefore subject to the state's
regulation.” Id. Following the
Bristol-Myers Squibb Co. ruling, this Court has
addressed personal jurisdiction before subject matter
jurisdiction in at least one case because the personal
jurisdiction “issue in [that] case [was] much easier to
decide.” Siegfried v. Boehringer Ingelheim
Pharmaceuticals, Inc., Case No. 4:16-CV-1942 CDP, 2017
WL 2778107, at *2 (E.D. Mo. June 27, 2017).
29, 2017 - nearly three years after this case was initially
filed in state court - the defendants again removed the
action to this Court on substantially the same grounds as
they did before. The defendants, citing Bristol-Myers
Squibb Co., contend that many of the plaintiffs are
procedurally misjoined and should be dismissed from the
action, which would leave diverse parties, enabling this
Court's subject matter jurisdiction. Further, defendants
maintain that removal is proper because plaintiffs engaged in
bad faith by forum-shopping and securing a forum that
plaintiffs believe will be more favorable to them and more
hostile to the out-of-state defendants like those in this
action. Plaintiffs moved for remand, alleging, inter
alia, that “Plaintiffs have in no way, shape, or
form engaged in ‘bad faith' giving Defendants
license to remove pursuant to 28 U.S.C. § 1332(a),
nearly three years after this case was filed.”
jurisdiction under 28 U.S.C. § 1332(a) requires an
amount in controversy greater than $75, 000 and complete
diversity of citizenship among the litigants, meaning that no
plaintiff is a citizen of the same state as any defendant.
OnePoint Solutions, LLC v. Borchert, 486 F.3d 342,
346 (8th Cir. 2007). Removal based upon diversity of
jurisdiction “may not be removed . . . more than 1 year
after commencement of the action, unless the district court
finds that the plaintiff has acted in bad faith in order to
prevent a defendant from removing the action.” 28
U.S.C. § 1446(c)(1). This one year rule trumps 28 U.S.C.
§ 1446(b)(3), which states that if a case is not
removable as stated in the initial pleading, “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 first be ascertained that the case is one which is or has
become removable.” Put another way, the defendant may
remove an action up to 30 days after the defendant determines
that the action is now removable, but the 30 day window is
subject to the maximum amount of time to remove of 1 year.
action is commenced under 28 U.S.C. § 1446(c)(1)
according to state law. “In Missouri, a civil action is
commenced by filing a petition with the court” and
“can only be commenced once.” Jackson v. C.R.
Bard, Inc., 4:17-CV-974 CEJ, 2017 WL 2021087, at *3
(E.D. Mo. May 12, 2017) (internal quotations omitted). Thus,
an amended petition is not considered to be a new or
different lawsuit and the original filing date controls.
Id. This Court must strictly construe removal
statutes because they impede upon states' rights to
resolve controversies in their own courts. Nichols v.
Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002).
The Court must resolve “all doubts about federal
jurisdiction in favor of remand.” Transit Cas. Co.
v. Certain Underwriters at Lloyd's of London, 119
F.3d 619, 625 (8th Cir. 1997).
this Court is inclined to agree with defendants'
arguments that personal jurisdiction should be addressed
before subject matter jurisdiction in these types of cases,
based on Bristol-Myers Squibb Co., defendants'
removal fails based upon a plain reading of 28 U.S.C. §
1446(c)(1). “A case may not be removed . . . on the
basis of jurisdiction conferred by section 1332 more than one
year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in
order to prevent a defendant from removing the action.”
Here, plaintiffs surely secured advantageous forums by
manipulating the groups of plaintiffs in an attempt to
prevent federal jurisdiction. However, this manipulation was
legal within the confines of federal statutes and case law at
the time and was not done in bad faith. Although
Bristol-Myers Squibb Co. may have altered the state
of affairs in regards to these mass actions with many
out-of-state plaintiffs joining with in-state plaintiffs, it
did not create an exception to the strict one year removal
statute's application to actions removed based upon
diversity in 28 U.S.C. § 1446(c)(1). The defendants have
presented no evidence of bad faith that would establish the
exception to this rule.
Court is required to remand this action to state court under
28 U.S.C. § 1446(c)(1) because this action was commenced
nearly three years ago and the defendants have ...