United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE.
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.
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.
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,
denied plaintiffs' motion to remand. Jordan,
2017 WL 3006993, at *4.
on these three decisions, defendants again removed the case
to this Court on July 18, 2017 (#1).
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
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).
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.
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 ...