United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
include 75 individuals who claim defendants'
talc-containing products caused ovarian cancer. They filed
this lawsuit in the Circuit Court for the City of St. Louis,
Missouri. Defendants Johnson & Johnson and Johnson &
Johnson Consumer Inc., formerly known as Johnson &
Johnson Consumer Companies, Inc., (collectively,
“Johnson & Johnson” or “J&J”)
removed the case to this Court. Johnson & Johnson and
defendant Imerys Talc America, Inc., (“Imerys”)
moved to dismiss the 73 plaintiffs who are not Missouri
citizens (#4, #12). In addition, J&J moved to stay (#9)
this matter pending its likely transfer to the multidistrict
litigation (“MDL”) proceeding that has been
established in the United States District Court for the
District of New Jersey for the purpose of coordinating
pretrial matters in talc-related litigation such as this one.
Defendant Imerys has moved to join (#28) in J&J's
motion to stay. Imerys has also filed a second motion to
dismiss (#26) and has moved to transfer venue (#13).
Plaintiffs have moved to remand (#15), to expedite ruling on
that motion (#17), and to stay pending discovery on personal
jurisdiction questions (#18).
seek federal jurisdiction, relying on the argument that the
joinder of unrelated out-of-state plaintiffs who share
citizenship with the defendants was so egregious as to
constitute fraudulent joinder. As plaintiffs point out in
their motion to remand, this Court has frequently remanded
cases such as this one, rejecting defendants' fraudulent
misjoinder theory and holding that it does not have diversity
jurisdiction due to the presence of plaintiffs who share
citizenship with the defendants. See Loyd v. Johnson
& Johnson, et al., 4:14-cv-01904-RWS, Memo &
Order of Remand, CM/ECF Doc. #7 (E.D. Mo. Nov. 13, 2014)
(Sippel, J.) (remanding sua sponte for lack of subject matter
jurisdiction); see also McGee v. Fresenius Med. Care N.
Am., Inc., 4:14-CV-967 SNLJ, 2014 WL 2993755, at *3
(E.D. Mo. July 3, 2014); Spiller v. Fresenius USA,
Inc., No. 4:13- CV2538 (HEA), 2014 WL 294430 (E.D. Mo.
Jan. 27, 2014); Aday v. Fresenius Med. Care N. Am.,
Inc., No. 4:13-CV-2462 (CEJ), 2014 WL 169634 (E.D. Mo.
Jan. 15, 2014); Agnew v. Fresenius Medical Care North
America, Inc., No. 4:13-CV-2468 (TCM), 2014 WL 82195
(E.D. Mo. Jan. 9, 2014).
McGee, this Court noted that the Court's
practice had generally been to address jurisdictional issues
promptly in order to promote the efficient administration of
justice. 2014 WL 2993755, at *2. As such, the Court addressed
the matter of subject matter jurisdiction and denied the
defendants' motions to stay that sought to allow the
cases to be swept up into the appropriate MDL. Id.
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. See Swann v. Johnson & Johnson, No.
4:17cv1845 SNLJ, Dkt. #133 at 2 (E.D. Mo. July 18, 2017). The
Supreme Court held in Bristol-Myers 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 quotations
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).
contend that the personal jurisdiction questions surrounding
their claims against Johnson & Johnson are still
complicated. Specifically, plaintiffs maintain they have
evidence that Johnson & Johnson is subject to personal
jurisdiction in Missouri because J&J directed the
manufacturing, packaging, and mislabeling of its talc
products in Missouri. Those issues are already being
litigated in other talc lawsuits against J&J in Missouri
state court, including in Swann v. Johnson &
Johnson, which was in trial when the
Bristol-Myers case was handed down and for which a
mistrial was declared while the parties worked out personal
jurisdiction questions. The defendants then removed Swann to
federal court, but that case was remanded back to state court
because defendants' removal came after the one-year
removal deadline set forth in 28 U.S.C. § 1446(c).
Plaintiffs here, however, do not contend that defendants
removed this matter outside the statutory deadline, and
defendants urge this Court to stay the matter so that the MDL
court can address personal jurisdiction questions on a large
scale, avoiding the possibility of inconsistent results and
preserving judicial economy, and in keeping with numerous
similar cases. See, e.g., Rea v. Johnson &
Johnson, No. 4:16-CV-2165 (SNLJ) (E.D. Mo. Apr. 7,
2017); Anderson v. Johnson & Johnson, No.
4:17-cv-01232 (CDP) (E.D. Mo. Apr. 10, 2017); Rice v.
Johnson & Johnson, No. 4:17-cv-01224 (CDP) (E.D. Mo.
Apr. 10, 2017); McBee v. Johnson & Johnson, No.
4:17-CV-01496 (JAR) (E.D. Mo. June 9, 2017); McNichols v.
Johnson & Johnson, No. 4:17-CV-01473 (JAR) (E.D. Mo.
May 31, 2017); Gallow v. Johnson & Johnson, No.
4:16-CV-1123 (JAR) (E.D. Mo. Feb. 2, 2017); Lucas v.
Johnson & Johnson, No. 4:16-CV-1339 (JAR) (E.D. Mo.
Feb. 2, 2017); Frazier v. Johnson & Johnson, No.
4:16-CV-1388 (JAR) (E.D. Mo. Feb. 2, 2017); Eveland v.
Johnson & Johnson, No. 4:16-CV-1436 (JAR) (E.D. Mo.
Feb. 2, 2017); Starks v. Johnson & Johnson, No.
4:16-CV-1362 (AGF) (E.D. Mo. Feb. 2, 2017). Defendant Imerys
joins in J&J's motion to stay proceedings despite
Imerys's own pending motions to dismiss and to transfer.
The Court will grant the defendants' motion to stay and
deny plaintiffs' motion to remand.
IT IS HEREBY ORDERED that defendant Johnson &
Johnson's motion to file memorandum in excess of page
limitations (#3) is GRANTED.
FURTHER ORDERED that defendant Johnson & Johnson's
motion to stay (#9) is GRANTED.
FURTHER ORDERED that defendant Imerys's motion to join
Johnson & Johnson's motion to stay (#28) is GRANTED.
FURTHER ORDERED that plaintiffs' motion to remand (#15)
and to expedite motion to remand (#17) are DENIED.
FURTHER ORDERED that plaintiffs' motion to stay pending
discovery on ...