United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Janssen
Pharmaceuticals, Inc., Johnson & Johnson, and Janseen
Research & Development, LLC's Motion to Dismiss for
Lack of Personal Jurisdiction [ECF No. 11], Plaintiffs'
Motion to Remand [ECF No. 15], and Plaintiffs' Motion to
Stay Pending Remand [ECF No. 14].
5, 2016, Plaintiffs initiated this lawsuit by filing a
petition in the Circuit Court of the City of St. Louis,
alleging they or their next friend were injured by Risperdal
and/or Invega, drugs Plaintiffs allege were developed,
manufactured, and sold by Defendants. Plaintiffs' claims
include negligence, fraud, failure to warn, strict product
liability, breach of express and implied warranty, and unfair
and deceptive trade practices.
19, 2017, Defendants removed this matter to this Court,
asserting diversity jurisdiction even though one of the
Plaintiffs, Timothy Wiley, is from Pennsylvania, and thus
shares citizenship with Janssen Pharmaceuticals, Inc., a
Pennsylvania corporation. Defendants seek dismissal of the
claims of all non-Missouri plaintiffs for lack of personal
jurisdiction, citing the United States Supreme Court's
ruling in Bristol-Myers Squibb Company v. Superior Court
of California, San Fancisco County, 137 S.Ct. 1773
(2017). Defendants contend this Court's dismissal of the
non-Missouri plaintiffs will render complete diversity of
citizenship among the litigants, making removal proper
pursuant to 28 U.S.C. § 1332, 1441, and 1446. Plaintiffs
argue Defendants are barred by the one-year time limit under
28 U.S.C. § 1146(c)(1) and seek remand to state court.
Defendants do not contest this case was removed more than one
year after the commencement of the action, but rather assert
they are not subject to the one-year limitation because (1)
Plaintiffs acted in bad faith to prevent removal and (2) the
decision in Bristol-Myers constitutes an
“order” or “other paper” triggering a
new 30-day removal period pursuant to 28 U.S.C. §
courts must “resolve all doubts about federal
jurisdiction in favor of remand” and are to strictly
construe the removal statute, including its time limits for
removal. Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d
965, 968 (8th Cir. 2007). As the parties seeking removal,
Defendants bear the burden of establishing this Court's
jurisdiction. Bowler v. Alliedbarton Sec. Servs.
LLC, 123 F.Supp.3d 1152, 1155 (E.D. Mo. 2015). To remove
a civil action from a state court, a defendant must file a
notice of removal in the appropriate district court:
within 30 days after the receipt by the defendant, through
service or otherwise, a copy of the initial pleading setting
forth the claim for relief upon which such action or
proceeding is based, or within 30 days 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 period is shorter.
28 U.S.C. § 1446(a)-(b). Section 1446(b)(3) further
If the case stated by a plaintiff's initial complaint is
not removable, a notice of removal may be filed within thirty
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.
“[a] case may not be removed under [§ 1446(b)(3)]
on the basis of [diversity] jurisdiction 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). In Missouri, a civil action is
commenced by filing a petition with the court. See
Mo. R. Civ. P. 53.01; Jackson v. Bayer Healthcare Pharm.,
Inc., No. 4:17-cv-01413-JAR, 2017 WL 2691413, at *6
(E.D. Mo. June 22, 2017); Jackson v. C.R. Bard,
Inc., No. 4:17-CV-974-CEJ, 2017 WL 2021087, at *3 (E.D.
Mo. May 12, 2017).
is no indication Plaintiffs acted in bad faith to prevent
Defendants from removing this action within one year of its
commencement. Although this Court agrees, in cases like this,
the Court should address personal jurisdiction prior to
deciding subject matter jurisdiction pursuant to the Supreme
Court's decision in Bristol-Myers,
Defendants' removal was untimely based on a plain reading
of 28 U.S.C. § 1446(c)(1). Defendants argue Plaintiffs
acted in “bad faith” by filing a number of
lawsuits in Missouri state court on behalf of nonresident
plaintiffs, including one nondiverse plaintiff. While it
might be true Plaintiffs engaged in forum shopping and sought
to avoid federal jurisdiction, Plaintiffs were not acting in
bad faith by pursuing a strategy which proved successful.
Thus, Defendants removal was untimely pursuant to 28 U.S.C.
§ 1446(c)(1), and the matter will be remanded back to
the Circuit Court for the City of St. Louis.
IT IS HEREBY ORDERED Plaintiffs' Motion
to Stay Proceedings Pending a Ruling on Plaintiffs'
Motion to Remand [ECF No. 14] is GRANTED.
IS FURTHER ORDERED Plaintiffs' Motion to Remand
to State ...