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' Second Motion
to Remand (ECF No. 13). The motion is fully briefed and ready
filed this action in the Circuit Court for the Twenty-Second
Judicial Circuit, City of St. Louis, State of Missouri, on
February 28, 2017. Plaintiffs allege injuries resulting from
Plaintiffs' use of Risperdal® in any of its forms,
including Risperdal CONSTA® and/or Invega®.
Plaintiffs are citizens of the States of Missouri, New
Jersey, Alabama, Kentucky, Texas, Ohio, Louisiana, New York,
Mississippi, Georgia, Pennsylvania, North Carolina,
Tennessee, Kansas, Arizona, Illinois, Indiana, Connecticut,
Delaware, Oklahoma, Colorado, and West Virginia. Defendants
Janssen Pharmaceuticals, Inc.; Johnson & Johnson; Janssen
Research & Development, LLC; and Patriot Pharmaceuticals,
LLC (collectively "Removing Defendants") are
citizens of New Jersey and Pennsylvania.
April 12, 2017, Defendants first removed this action to this
Court, based in part on diversity jurisdiction under 28
U.S.C. § 1332(a). See Ackerson, et al. v. Janssen
Pharms., Inc., et al, No. 4:17-cv-01303-JCH. The Court
found that subject matter jurisdiction was lacking and
remanded the case on May 3, 2017. See Acker son, No.
4:17-cv-01303-JCH, 2017 WL 1684763 (E.D. Mo. May 3, 2017). On
July 19, 2017, Defendants removed this case for a second time
asserting 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. 1)
impetus for the second 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 ground for their second attempt to remove this action
is the order or other paper exception to the time limitation
for removal set forth in 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. §
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 triggers 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
for a second time was procedurally improper, and the Court
will grant Plaintiffs' Second Motion to Remand this
action to state court.
IT IS HEREBY ORDERED that Plaintiffs'
Second Motion to Remand (ECF No. 13) is
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.
 The decisions in Jordan and
Siegfried were issued after the Supreme Court's
ruling in Bristol-Myers. Neither case involved the
issue of removal under 28 U.S.C. § 1446(b)(3) or (c)(1).
Furthermore, there is currently a ...