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Schmitz v. Johnson & Johnson

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

August 10, 2017

RAYMOND SCHMITZ, et al., Plaintiffs,
v.
JOHNSON & JOHNSON, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court is Plaintiffs' Motion to Remand. (ECF No. 13) The issues raised in this Motion have been fully briefed, and all current parties have consented to the jurisdiction of the undersigned United States Magistrate Judge under 28 U.S.C. § 636. (ECF No. 40) For the reasons explained below, the Court will grant Plaintiffs' motion and remand the case to the Twenty-Second Circuit Court of the State of Missouri for further proceedings. All other motions pending in this matter will be denied as moot.

         I. Background

         This is one in a series of consumer injury cases filed against Defendants in connection with ovarian cancers alleged to have been caused by use of talc-based products. This particular case was filed September 4, 2015 in the Twenty-Second Circuit Court in St. Louis, Missouri. (ECF No. 18) At the time of removal, the plaintiff group consisted of 74 individuals from 32 states, including Missouri and New Jersey. (ECF No. 14) Nine plaintiffs subsequently filed voluntary dismissals of their claims. (ECF Nos. 19-27)

         Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (collectively “Johnson & Johnson Defendants”) filed for removal on June 29, 2017, with the consent of their fellow defendants. (ECF Nos. 1, 1-3) They assert that there is federal subject-matter jurisdiction on the basis of 28 U.S.C. § 1332 diversity jurisdiction. Defendants assert that there is complete diversity between the parties, despite the presence of plaintiffs from the state of New Jersey, home of the Johnson & Johnson Defendants. In an attempt to address this issue, a motion to dismiss these and the other non-Missouri plaintiffs was filed in conjunction with removal. (ECF No. 4) Defendants argue that the non-Missouri plaintiffs have been misjoined because they have no connections to the State of Missouri and that the Court thus lacks personal jurisdiction over them.

         Defendants assert that the Court should decide the issue of personal jurisdiction before the issue of subject-matter jurisdiction in light of the recent Supreme Court decision in Bristol-Meyers Squibb Co. v. Superior Ct. of California, 137 S.Ct. 1773 (June 19, 2017). Based on Bristol-Meyers, the Defendants would have the Court dismiss the non-Missouri plaintiffs for lack of personal jurisdiction, which would in turn result in a group of remaining plaintiffs completely diverse from the Defendants.

         Plaintiffs have moved for remand, asserting that removal was time-barred by the provisions of 28 U.S.C. § 1446(c).

         II. Legal Standard

         “A 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). See also 28 U.S.C. § 1441(a). After removal, a party may move to remand the case to state court, and the case should be remanded if it appears that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The party invoking federal jurisdiction and seeking removal bears the burden of establishing federal jurisdiction, and all doubts about federal jurisdiction are resolved in favor of remand. Central Iowa Power Co-op, v Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).

         III. Discussion

         Generally speaking, a defendant in a state court case seeking to move the matter to federal court must file for removal within 30 days after it receives a copy of the initial pleading or after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever is shorter. 28 U.S.C. § 1446(b)(1).

         The statute makes an exception for cases which are not removable based on an initial pleading but later developments reveal potential federal jurisdiction. Specifically, a defendant may still file for removal in such a case within 30 days “after receipt by the defendant . . . 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.” 28 U.S.C. § 1446(b)(3).

         There is, in turn, a limitation to this exception. When subject-matter jurisdiction in a potential delayed-removal situation is premised on diversity of the parties, it may not be removed if it is more than one year after commencement of the case “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). In Missouri, a civil action is commenced by filing a petition. Mo. R. Civ. P. 53.01.

         As noted above, the instant matter was filed on September 4, 2015. According to the Missouri State Court records, the Johnson & Johnson Defendants were served on October 8, 2015. A notice of removal ...


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