United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiffs' motion for
reconsideration (ECF No. 45); Plaintiffs' motion for
leave to file an amended complaint (ECF No. 43); and
Plaintiffs' motion to allow jurisdictional discovery (ECF
No. 41). Defendants filed responses in opposition to all
three motions. For the reasons set forth below, the motions
for reconsideration and to allow jurisdictional discovery
will be denied, and the motion for leave to file an amended
petition will be granted.
case was filed in the Circuit Court for the City of St.
Louis, Missouri, on January 19, 2017, alleging injuries
sustained as a result of using Essure, a medical device
manufactured and sold by Bayer. Of the 94 named Plaintiffs, seven
were citizens of Missouri. One Plaintiff was an Illinois
citizen who allegedly had the device implanted in Missouri.
The remaining Plaintiffs were citizens of 25 different
states, including Indiana, Delaware, and Pennsylvania.
March 9, 2017, Bayer 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). Bayer
Corporation is a citizen of New Jersey and Indiana; Bayer
Healthcare LLC is a citizen of Delaware, Pennsylvania, New
Jersey, Germany, and the Netherlands; Bayer Essure, Inc. and
Bayer Healthcare Pharmaceuticals, Inc., are citizens of
Delaware and New Jersey; and Bayer A.G. is a German
corporation. Bayer contended that removal was proper because
the diversity-destroying Plaintiffs were fraudulently joined.
Bayer also filed a motion to dismiss the non-Missouri
Plaintiffs for lack of personal jurisdiction. ECF No. 4.
Thereafter, on March 16, 2017, Plaintiffs filed a motion to
remand on the basis that the Court lacked subject matter
the motions to dismiss and remand were pending, Bayer moved
the Court to take notice of the United States Supreme Court
case, Bristol-Myers Squibb Co. v. Superior Court of
California, San Francisco County, 137 S.Ct. 1773 (2017).
In that case, the Supreme Court held that state courts lack
specific personal 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.
13, 2017, Plaintiffs filed an amended complaint without
consent or leave of the Court. ECF No. 39. The amended
complaint added a number of factual allegations, including
Bayer's clinical trial activities in Missouri and its
marketing and sales activities in Missouri, to support
specific personal jurisdiction over the non-Missouri
next day, on July 14, 2017, the Court issued a Memorandum and
Order granting Bayer's motion to dismiss for lack of
personal jurisdiction and relying heavily on
Bristol-Myers Squibb. ECF No. 40. The Court dismissed
the claims of all non-Missouri Plaintiffs, except Plaintiff
Jennifer Dishbein, an Illinois resident whose device was
implanted in Missouri. The dismissal of the
diversity-destroying Plaintiffs negated any challenge to
complete diversity and, therefore, the Court denied
Plaintiffs' motion to remand. The July 14 Order did not
mention the first amended complaint.
17, 2017, Plaintiffs filed a motion for reconsideration of
the Court's July 14 Order under Federal Rule of Civil
Procedure 54(b), arguing that the amended complaint, which
was not considered in the Court's July 14 Order, cured
the defects of personal jurisdiction present in the
originally-filed complaint. Specifically, Plaintiffs maintain
that the amended complaint establishes that St. Louis,
Missouri, was “ground zero” for the launch of
Essure, which satisfies the requirement set forth in
Bristol-Myers Squibb that out-of-state Plaintiffs
have sufficient connections between the forum and the
specific claims at issue. Plaintiffs contend that the
Court's July 14 Order “would be rendered incorrect
because of a controlling or significant change in the law
since the issues were submitted to the Court, ” which
presents a circumstance under which the Court may reconsider
its interlocutory ruling.
argues in opposition that the amended complaint was filed
without leave, thereby rendering it procedurally improper and
unable to provide a basis for reconsideration. Moreover,
Bayer contends that even if the amended complaint were to be
considered, Plaintiffs still fail to allege sufficient ties
between the non-Missouri Plaintiffs and Missouri to provide
the Court with subject matter jurisdiction.
district court has “the inherent power to reconsider
and modify an interlocutory order any time prior to the entry
of judgment.” K.C. 1986 Ltd. P'ship v. Reade
Mfg., 472 F.3d 1009, 1017 (8th Cir. 2007) (internal
quotation marks and citation omitted). Although the Federal
Rules of Civil Procedure do not expressly provide for motions
to reconsider, Rule 54(b) encompasses the power to revise an
interlocutory order any time prior to the entry of final
judgment. See Thunder Basin Coal Co., L.L.C. v. Zurich
Am. Ins. Co., No. 4:12-CV-231 (CDP), 2013 WL 6410012, at
*1 (E.D. Mo. Dec. 9, 2013). “[A] motion to reconsider
may be granted if the earlier decision (1) misunderstood a
party, (2) made a decision outside of the adversarial issues,
or (3) would be rendered incorrect because of a controlling
or significant change in law since the issues were submitted
to the Court.” MacCormack v. Adel Wiggins
Grp., No. 4:16-CV-414-CEJ, 2017 WL 1426009, at *2 (E.D.
Mo. Apr. 21, 2017) (internal citations and quotations
the amended complaint filed on July 13, 2017, is not properly
before the Court. It was not filed by consent or with leave
of the Court as required by Federal Rule of Civil Procedure
15(a). Moreover, the amended complaint is not a proper basis
upon which Plaintiffs may seek reconsideration of the
Court's July 14 Order. There is no misunderstanding of a
party or a controlling or significant change in the law since
the issues were submitted before the Court.
Plaintiffs have since filed a motion for leave to file the
first amended complaint in an attempt to cure the defects in
personal jurisdiction as to the non-Missouri Plaintiffs.
Pursuant to Federal Rule of Civil Procedure 15, leave to
amend should be freely given. Although Defendants urge that
allowing the amended complaint would be futile, the Court
believes Plaintiffs should be given the opportunity to amend
their complaint and set forth their bases for filing suit in
Missouri. Defendants will not be ...