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. 19). The motion is fully briefed and ready
first filed this action in the Circuit Court for the
Twenty-Second Judicial Circuit, City of St. Louis, State of
Missouri, on July 2, 2015. Plaintiffs allege injuries
resulting from Plaintiffs' use of Risperdal® and/or
Invega®. Plaintiffs are citizens of the States of
Alabama, Arkansas, California, Connecticut, Florida, Georgia,
Hawaii, Indiana, Kansas, Louisiana, Massachusetts,
Mississippi, Missouri, Nebraska, Nevada, North Carolina,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas,
Virginia, and Washington. Defendants Janssen Pharmaceuticals,
Inc.; Janssen, L.P.; Johnson & Johnson; and Janssen
Research & Development, LLC (collectively "Removing
Defendants") are citizens of New Jersey and
years later, on July 19, 2017, Defendants removed this case
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446 on
the basis that that all of the non-Missouri plaintiffs should
be dismissed from the case and the Court's diversity
jurisdiction would apply to the remaining Missouri
plaintiffs' claims. (ECF No. 6)
impetus for the removal was the United States Supreme
Court's decision in Bristol-Myers Squibb Co. v.
Superior Court of California, San Francisco Cty., 137
S.Ct. 1773, 1777 (2017). In that case, the Supreme Court held
that state courts lack specific jurisdiction over nonresident
plaintiffs' claims that have no connection to the forum
where the lawsuit is filed, even if those plaintiffs join
their claims with in-state plaintiffs. Defendants also rely
on orders by the district court in Jordan v. Bayer
Corp., No. 4:17-CV-865 (CEJ), 2017 WL 3006993 (E.D. Mo.
July 14, 2017) and Siegfried v. Boehringer Ingelheim
Pharms., Inc., No. 4:16CV1942 CDP, 2017 WL 2778107 (E.D.
Mo. June 27, 2017). In these cases, the claims of
non-resident plaintiffs similar to the present case were
dismissed based on the Bristol-Myers
legal grounds for their attempt to remove this action are the
bad faith exception to the time limitation for removal set
forth 28 U.S.C. § 1446(c)(1) and the order or other
paper exception under 28 U.S.C. §1446(b)(3). Under
§ 1446, a case must be removed within 30 days
"after the receipt by the defendant, through service or
otherwise, of 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." See 28 U.S.C.
§1446(b)(1). When an initial pleading is not removable,
"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." 28 U.S.C. §
1446(b)(3). Further, § 1446(c) provides that a case may
not be removed under § 1446(b)(3) "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). "Put another way, the defendant may
remove an action up to 30 days after the defendant determines
that the action is now removable, but the 30 day window is
subject to the maximum amount of time to remove of 1
year." Ingham v. Johnson & Johnson, No.
4:17-CV-1857 SNLJ, 2017 WL 3034696, at *2 (E.D. Mo. July 18,
Defendants contend that removal is timely under §
1446(c)(1) because Plaintiffs acted in bad faith to prevent
Defendants from removing the action. Defendants assert that
Plaintiffs have included a minimum number of nondiverse
plaintiffs to evade federal jurisdiction. However, as found
by another court in this district, "Although
Bristol-Myers Squibb Co. may have altered the state
of affairs in regards 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 upon
diversity in 28 U.S.C. § 1446(c)(1)."
Ingham, 2017 WL 3034696, at *2. While Defendants
assert bad faith on the part of Plaintiffs, the Court finds
that Defendants have failed to present any supporting
evidence that would establish an exception to the one-year
rule, and Defendant's removal two years after the action
was commenced is untimely under § 1446(c)(1). Id.;
see also Johnson v. Janssen Pharms., Inc., No.
4:17-CV-2007-SNLJ, 2017 WL 4356900, at *2 (E.D. Mo. Oct. 2,
2017) (finding no evidence of bad faith where plaintiffs'
secured their forum by legal means thus warranting remand of
an action commenced in state court more than two years prior
also assert that the ruling in Bristol-Myers
qualifies as an order and/or other paper because it changed
the legal landscape by clarifying that specific jurisdiction
over the non-Missouri Plaintiffs does not exist and thus
triggered a new 30-day period for removal under Section
1446(b)(3). The orders and other paper exception, however, is
predominantly limited to orders and other paper issued in the
individual case that is being removed. Orders and rulings in
separate cases with different parties do not trigger the
recommencement of the 30-day limit. See Dahl v. R.J.
Reynolds Tobacco Co., 478 F.3d 965, 969 (8th Cir. 2007)
("If Congress had intended new developments in the law
to trigger the recommencement of the thirty day time limit,
it could have easily added language making it clear that
§ 1446(b) was not only addressing developments within a
case."); Erhart v. Bayer, Corp., No.
4:17-CV-1996-SNLJ, 2017 WL 4280635, at *4 (E.D. Mo. Sept. 27,
2017) ("This Court is required to remand this action to
state court under 28 U.S.C. § 1446 because the second
notice of removal (#1) was not filed within thirty days of
defendants receiving a copy of the original state court
filing, and no 'order or other paper' triggered a new
removal period."); Dotson v. Bayer Corp., No.
4:17cvl986 RWS (ECF No. 50, Nov. 17, 2017); Tabor v.
Bayer Corp., No. 17cvl997 RWS (ECF No. 49, Nov. 17,
2017). As a result, Defendants' removal of this matter
was procedurally improper, and the Court will grant
Plaintiffs' Motion to Remand this action to state court.
IT IS HEREBY ORDERED that Plaintiffs'
Motion to Remand (ECF No. 19) is GRANTED.
IS FURTHER ORDERED that this matter is remanded to
the Circuit Court for the Twenty-Second Judicial Circuit,
City of St. Louis, State of Missouri.
IS FINALLY ORDERED that all other motions are
DENIED as moot.