United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' Motion to
Remand (ECF No. 9). The motion is fully briefed and ready for
about February 27, 2017, Plaintiffs filed their Petition in
the Circuit Court of the City of St. Louis, Missouri. (Pet.,
ECF No. 6) Plaintiffs filed a First Amended Petition on March
27, 2017. (First Am. Pet. [hereinafter "Complaint"
or "Compl."], ECF No. 7) In total, there are 72
Plaintiffs joined to this action. Plaintiffs claim that they,
or their next friend, suffered damages as a result of their
use of the drug Risperdal® in any of its forms, including
Risperdal CON ST A® and/or Invega®, which allegedly
was designed, developed, tested, labeled, packaged,
distributed, marketed, and sold throughout the United States
by Defendants. (Compl. p. 1) These claims are alleged to be
the result of Defendants' illegal conduct, including
their "concealment of the true character, quality and
nature of their product" by "misrepresenting known
dangers and/or defects in Risperdal® and/or arising out
of the use of Risperdal and a continued and systematic
failure to disclose and/or cover-up such information from/to
Plaintiffs, Plaintiffs' physicians, and the public."
(Compl. ¶¶ 172, 173) Based upon these allegations,
Plaintiffs bring claims for negligence, fraud, strict product
liability (failure to warn), strict product liability,
negligent misrepresentation, breach of express warranty,
breach of implied warranty, violation of the Missouri
Merchandising Practices Act, conspiracy, and medical expenses
incurred by parent. (Compl. ¶¶ 180-245)
April 5, 2017, Defendants removed this action to this Court
on the basis of diversity jurisdiction under 28 U.S.C. §
1332(a). Although there appears to be a lack of complete
diversity based upon the face of the Complaint, Defendants
argue that they are not subject to personal jurisdiction with
respect to the non-Missouri Plaintiffs' claims.
Defendants further assert that "straightforward
question" of personal jurisdiction should be addressed
prior to the more difficult question of subject matter
jurisdiction. (ECF No. 1, ¶ 5) Defendants maintain that
ruling on personal jurisdiction before subject matter
jurisdiction should result in dismissal of all claims
asserted by the out-of-state Plaintiffs, which will create
complete diversity between Defendants and the remaining
Missouri Plaintiffs. (ECF No. 1, ¶ 8) On the same day
that they removed this case, Defendants moved to dismiss the
claims of the out-of-state Plaintiffs for lack of personal
jurisdiction, and/or to dismiss the Complaint for failure to
state a claim or order Plaintiffs to file a more definite
statement. (ECF No. 4) As noted above, Plaintiffs filed the
instant Motion to Remand on April 12, 2017, citing to similar
cases from this District in which the Court declined to
resolve personal jurisdiction issues prior to addressing the
straightforward subject matter jurisdiction analysis, and
remanded the cases due to the facial lack of complete
is axiomatic that a court may not proceed at all in a case
unless it has jurisdiction." Crawford v. F.
Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001)
(citing See Ex Parte McCardle, 7 Wall. 506,
514, 19 L.Ed. 264 (1868)). Under Supreme Court precedent set
forth in Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574 (1999), a Court has discretion to consider personal
jurisdiction first where personal jurisdiction is
straightforward and presents no complex question of state
law, and the alleged defect in subject matter jurisdiction
raises a difficult question. Id. at 588; see
also Crawford, 267 F.3d at 764 ("[C]ertain
threshold questions, such as personal jurisdiction, may be
taken up without a finding of subject-matter jurisdiction,
provided that the threshold issue is simple when compared to
the issue of subject-matter jurisdiction.").
the Supreme Court has held that
If personal jurisdiction raises "difficult questions of
[state] law, " and subject-matter jurisdiction is
resolved "as eas [ily]" as personal jurisdiction, a
district court will ordinarily conclude that "federalism
concerns tip the scales in favor of initially ruling on the
motion to remand.
" Ruhrgas AG, 526 U.S. at 586 (citing Allen
v. Ferguson, 791 F.2d 611, 616 (7th Cir. 1986)).
"[I]n most instances subject-matter jurisdiction will
involve no arduous inquiry." Ruhrgas AG, 526
U.S. at 587. "In such cases, both expedition and
sensitivity to state courts' coequal stature should impel
the federal court to dispose of that issue first."
Id. at 587-88. Courts in this district addressing
the same issue have found that personal jurisdiction requires
a more fact-intensive inquiry than the straightforward issue
of subject-matter jurisdiction. See, e.g., Joseph v.
Combe Inc., No. 4:16CV284 RLW, 2016 WL 3339387,
at *1 (E.D. Mo. June 13, 2016); Morgan v. Janssen
Pharms., Inc., No. 4:14-CV-1346 CAS, 2014 WL 6678959, at
*2 (E.D. Mo. Nov. 25, 2014) (finding the issue of subject
matter jurisdiction in an action arising from the drug
Risperidone was a straightforward legal issue that judges in
this district had already addressed and that issues of
personal jurisdiction required a more fact-intensive
inquiry); Butler v. Ortho-McNeil-Janssen Pharms.,
Inc., No. 4:14CV1485 RWS, 2014 WL 5025833, at *1 (E.D.
Mo. Oct. 8, 2014) (declining to rule on issues of personal
jurisdiction first because the subject matter jurisdiction
issue was not arduous). Thus, the Court in its discretion
will first determine the issue of subject matter
jurisdiction, as the question of personal jurisdiction
requires a more fact-intensive inquiry. See Dever v.
Hentzen Coatings, Inc., 380 F.3d 1070, 1072-73 (8th Cir.
2004) (noting a determination of personal jurisdiction
requires looking at affidavits and exhibits in addition to
the face of the pleadings).
Court holds that there is not complete diversity on the face
of the Complaint and no basis for fraudulent joinder. "A
defendant may remove a state law claim to federal court only
if the action originally could have been filed there."
In re Prempro Prod. Liab. Litig., 591 F.3d 613, 619
(8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d
1006, 1010 (8th Cir. 2005)). Under 28 U.S.C. §1332(a), a
district court has original jurisdiction over a civil action
where the amount in controversy exceeds the sum of $75, 000
and there is complete diversity of citizenship between the
litigants. "Complete diversity of citizenship exists
where no defendant holds citizenship in the same state where
any plaintiff holds citizenship." OnePoint
Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir.
however, "have long recognized fraudulent joinder as an
exception to the complete diversity rule." In re
Prempro Prod. Liab. Litig., 591 F.3d at 620.
"Fraudulent joinder occurs when a plaintiff files a
frivolous or illegitimate claim against a non-diverse
defendant solely to prevent removal." Id.
(citing Filla v. Norfolk S Ry. Co., 336 F.3d 806,
809 (8th Cir. 2003)). "When determining if a party has
been fraudulently joined, a court considers whether there is
any reasonable basis in fact or law to support a claim
against a nondiverse defendant." Id. (citing
Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th
Cir. 2007)). Here, Defendants argue that the non-Missouri
citizen Plaintiffs are fraudulently joined with the Missouri
Plaintiffs because the out-of-state Plaintiffs cannot
establish personal jurisdiction under Missouri law.
in this district have consistently held that an alleged lack
of personal jurisdiction does not establish fraudulent
joinder. Joseph, 2016 WL 3339387, at *2;
Triplett v. Janssen Pharms., Inc., No.
4:14-CV-02049-AGF, 2015 U.S. Dist. LEXIS 160580, at *13 (E.D.
Mo. July 7, 2015); Gracey v. Janssen Pharms., Inc.,
No. 4:15-CV-407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4,
2015); Simmons v. Skechers USA, Inc., No.
4:15-CV-340-CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9,
2015). "On numerous occasions, this Court has determined
that the joinder of plaintiffs alleging injury from a single
drug is not 'egregious, ' because common issues of
law and fact connect the plaintiffs' claims."
Robinson v. Pfizer Inc., No. 4:16-CV-439 (CEJ), 2016
WL 1721143, at *4 (E.D. Mo. Apr. 29, 2016)(collecting cases).
The Court follows the approach taken by the district courts
in the Eastern District of Missouri, holds that
Plaintiffs' claims are not fraudulently joined, and finds
that complete diversity is absent. See In re Prempro
Prod. Liab. Litig., 591 F.3d at 623. Therefore, the
Court remands this action for lack of subject matter
jurisdiction. See T.R. v. Janssen Pharm., Inc., No.
4:16-CV-1860 (CEJ), 2017 WL 492827, at *3 (E.D. Mo. Feb. 7,
2017) ("Courts in this district have repeatedly held
that an alleged lack of personal jurisdiction does not
establish fraudulent joinder... This Court agrees that the
'fraudulent joinder doctrine requires the Court to
consider the merits of plaintiffs' claims under state
law, and a personal jurisdiction challenge does not go to the
merits of the claim.'") (internal citations
IT IS HEREBY ORDERED that Plaintiffs'
Motion to ...