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Erhart v. Bayer Corp.

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

September 27, 2017

ANDREA ERHART, et al., Plaintiffs,
v.
BAYER, CORP., BAYER HEALTHCARE LLC., BAYER ESSURE, INC., F/K/A CONCEPTUS, INC., BAYER HEALTHCARE PHARMACEUTICALS, INC., BAYER A.G., Defendants.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on plaintiffs' motions to remand (#21), allow jurisdictional discovery (#19), stay proceedings (#23), and unseal documents (#42). Also before the Court are defendants' motions to dismiss (#12) and sever (#15). The parties disagree on whether defendants' removal was procedurally proper, and the matters are fully briefed. Because defendants' removal was not procedurally proper, plaintiffs' motion to remand will be granted for the reasons explained below.

         I. Background

         The ninety-four plaintiffs originally filed this action in state court on November 7, 2016. Each claims he or she was injured by a permanent birth control product that is manufactured and distributed by defendants Bayer, Corporation; Bayer HealthCare LLC; Bayer Essure, Inc.; Bayer Pharmaceuticals, Inc.; and Bayer A.G. Defendants removed the case to this Court based on (1) diversity jurisdiction, 28 U.S.C. § 1332(a); (2) federal question jurisdiction, 28 U.S.C. § 1331; and (3) removal jurisdiction pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(11)(B)(i). This Court found that plaintiffs had not fraudulently joined or fraudulently misjoined non-Missouri plaintiffs and remanded the case. Erhart v. Bayer, Corp., 2017 U.S. Dist. LEXIS 17678, at *4 (E.D. Mo. Feb. 8, 2017).

         Then, the Supreme Court of the United States decided Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017), which dealt with personal jurisdiction issues directly related to this case. Next, in State ex rel. Bayer Corp. v. Moriarty, the Supreme Court of Missouri issued a preliminary writ of prohibition, ordering a circuit court judge to show cause “why a writ of prohibition should not issue prohibiting [her] from doing anything other than vacat[ing]” an order denying Bayer's motion to dismiss. See Preliminary Writ of Prohibition, State ex rel. Bayer Corp. v. Moriarty, No. SC96189 (Mo. banc 2017) (#1-2 at 1194). That state court case involved many of the same defendants and personal jurisdiction issues as this case. Finally, in Jordan v. Bayer Corp., No. 4:17-CV-865-CEJ, 2017 WL 3006993 (E.D. Mo. July 14, 2017), this Court found that Bristol-Myers “is dispositive of the specific personal jurisdiction issue [of nonresident plaintiffs who showed no connection to the forum], ” dismissed the non-Missouri plaintiffs, [1] and denied plaintiffs' motion to remand. Jordan, 2017 WL 3006993, at *4.

         Relying on these three decisions, defendants again removed the case to this Court on July 18, 2017 (#1).

         Defendants argue that removal was proper under 28 U.S.C. § 1446(b)(3) because any one of the three decisions explained above qualifies as an “order or other paper from which it may first be ascertained that the case is one which is or has become removable.” See 28 U.S.C. § 1446(b)(3). Plaintiffs, however, argue that none of those decisions qualifies as an “order or other paper.” Thus, according to plaintiffs, removal was not procedurally proper.

         II. Legal Standard

         The federal removal statute requires a civil defendant to file a notice of removal within thirty days of receiving a copy of the initial state court pleading. Id. §§ 1446(a)- (b)(1). “A defendant is generally barred from asserting any ground for removal not attempted within that thirty day period.” Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007); see also 28 U.S.C. § 1446(b).

         But Congress did create one exception:

[I]f the case stated by the initial pleading 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.

28 U.S.C. § 1446(b)(3). The new thirty-day period begins when the defendant receives the document, so long as the defendant first ascertains removability from that document. So the exception has two requirements. First, the document must be an “amended pleading, motion, order or other paper.” Id. Second, the defendant must ascertain that the case is or was removable-for the first time-from that document. Id.

         III. Application

         The second notice of removal (#1) was not filed within thirty days of defendants receiving the original state court pleading. Thus, the issue before this Court turns on the interpretation of the removal exception statute. When interpreting the terms of ...


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