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' motion to
remand (#25), defendants' motion for leave to file a
sealed document (#2), and defendants' motion to dismiss
(#21). Because defendants' removal was not procedurally
proper, plaintiffs' motion to remand will be granted for
the reasons explained below.
originally filed this action in state court on May 8, 2015.
Each claims he or she (or his or her next friend) was injured
by a prescription drug that was designed, developed,
manufactured, marketed, advertised, distributed, or sold by
2017, 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.
Relying on Bristol-Myers, defendants removed the
case to this Court (#1)-based on diversity jurisdiction-on
July 19, 2017, more than two years after the case was filed
in state court.
argue that removal was proper under 28 U.S.C. §
1446(c)(1) because plaintiffs acted in bad faith by joining
non-diverse plaintiffs to evade federal jurisdiction. They
also argue that Bristol-Myers 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).
jurisdiction under 28 U.S.C. § 1332(a) requires an
amount in controversy greater than $75, 000 and complete
diversity of citizenship, meaning that no plaintiff is a
citizen of the same state as any defendant. OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
2007). A diversity case “may not be removed . . . 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). This one-year
rule trumps 28 U.S.C. § 1446(b)(3), which states that,
if a case is not removable as initially pleaded, “a
notice of removal may be filed within 30 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.” So defendant may remove an
action up to thirty days after the defendant determines that
the action is now removable, but the thirty-day window is
limited by the one-year rule.
action is commenced under 28 U.S.C. § 1446(c)(1)
according to state law. “In Missouri, a civil action is
commenced by filing a petition with the court . . . .”
Jackson v. C.R. Bard, Inc., 4:17-CV-974-CEJ, 2017 WL
2021087, at *3 (E.D. Mo. May 12, 2017) (quoting Mo.
Sup. Ct. R. 53.01). This Court must strictly construe removal
statutes because they impede states' rights to resolve
controversies in their own courts. Nichols v. Harbor
Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002). The
Court must resolve “all doubts about federal
jurisdiction in favor of remand.” Transit Cas. Co.
v. Certain Underwriters at Lloyd's of London, 119
F.3d 619, 625 (8th Cir. 1997).
did not act in bad faith to prevent defendants from removing
this case. “Plaintiffs surely secured advantageous
forums by manipulating the groups of plaintiffs in an attempt
to prevent federal jurisdiction.” Livaudais v.
Johnson & Johnson, 4:17-CV-1851-SNLJ, 2017 WL
3034701, at *2 (E.D. Mo. July 18, 2017). But “this
manipulation was legal within the confines of federal
statutes and case law at the time and was not done in bad
faith.” Id. Defendants' argument that
“Plaintiffs should have known from the outset that
their forum manipulation rested entirely on theories of
personal jurisdiction squarely foreclosed by federal
law” is misplaced. In fact, these theories were
permitted under Missouri law before Bristol-Myers.
Defendants have presented no evidence of bad faith that would
satisfy the exception to the one-year rule. Thus, removal is
barred by the plain language of 28 U.S.C. § 1446(c)(1).
Bristol-Myers may have altered the state of affairs
relating to these mass actions with many out-of-state
plaintiffs joining with in-state plaintiffs, it did not
create an exception to the strict one-year removal
statute's application to actions removed based on
diversity in 28 U.S.C. § 1446(c)(1).
event, defendants' removal would still fail under 28
U.S.C. § 1446(b)(3) because this Court has held that
Bristol-Myers is not an “order or other
paper” that triggers a new removal period. Erhart
v. Bayer, Corp., No. 4:17-CV-1996-SNLJ, 2017 WL 4280635,
at *4 (E.D. Mo. Sept. 27, 2017).