United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER OF REMAND
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' motion to
re-remand the action to state court (Doc. No. 21). For the
reasons set forth below, the motion shall be granted.
first filed this action in the Circuit Court of the City of
St. Louis, Missouri, on October 21, 2016, seeking damages for
injuries sustained as a result of the implantation and use of
Essure. The 94 Plaintiffs reside in multiple states,
including Missouri, Indiana, Pennsylvania, and New Jersey.
Defendant Bayer Corporation is a citizen of Indiana and
Pennsylvani; Defendant Bayer Healthcare LLC is a
citizen of Delaware, New Jersey, Pennsylvania, Germany and
the Netherlands; Defendants Bayer Essure Inc. and Bayer
Healthcare Pharmaceuticals, Inc. are citizens of Delaware and
New Jersey. Bayer AG is a citizen of Germany.
December 8, 2016, Defendants first removed this action to
this Court on the basis of diversity jurisdiction under 28
U.S.C. § 1332(a), federal question jurisdiction under 28
U.S.C. § 1331, and the Class Action Fairness Act (CAFA).
See Whitlock v. Bayer Corp., No. 4:16-cv-01913-SPM,
(ECF No. 1, Dec. 8, 2017). The Court found that subject
matter jurisdiction was lacking and remanded the case on June
12, 2017. Whitlock v. Bayer Corp., No.
4:16-cv-01913-SPM, 2017 WL 564489, at *3 (E.D. Mo. Feb. 13,
2017). On July 18, 2017, Defendants removed this case for a
second time, asserting that all of the non-Missouri
Plaintiffs should be dismissed from the case, and that the
Court's diversity jurisdiction then would apply to the
remaining Missouri Plaintiffs' claims.
basis for their second removal primarily rests with the
United States Supreme Court's ruling in Bristol-Myers
Squibb Co. v. Superior Court of California, San Francisco
Cty., 137 S.Ct. 1773 (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.
legal ground for their second attempt to remove this case is
the changed circumstances exception to the time limitation
for removal set forth in 28 U.S.C. § 1446(b). Under that
statute, 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 proceedings 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 Squibb
qualifies as orders and/or other papers 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
the orders and other paper exception 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.
4:17-CV-1986-RWS (ECF No. 50, Nov. 17, 2017); Tabor v.
Bayer Corp., No. 4:17-CV-1997-RWS (ECF No. 49, Nov. 17,
2017); Robb v. Bayer Corp., No. 4:17-CV-01995-RLW
(ECF No. 52, Nov. 27, 2017); Hall v. Bayer Corp.,
No. 4:17-CV-01999-JCH, ECF No. 58, Nov. 27, 2017).
result, Defendants' removal of this matter for a second
time was procedurally improper because Bristol-Myers
Squibb does not constitute “other paper.”
Therefore, the Court will grant Plaintiffs' Motion to
Remand this action to state court.
IT IS HEREBY ORDERED that Plaintiffs'
Motion to Re-remand  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
IS FURTHER ORDERED that all other pending motions in
this case are DENIED without prejudice as