United States District Court, E.D. Missouri, Eastern Division
NEDRA DYSON, et al. Plaintiffs,
BAYER CORPORATION, et al., Defendants,
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
of 95 plaintiffs filed this products liability lawsuit
against defendants Bayer Corporation, Bayer HealthCare LLC,
Bayer Essure Inc., and Bayer HealthCare Pharmaceuticals Inc.
(collectively, “Bayer”) alleging that Bayer's
Essure product caused them harm. Plaintiffs filed their
lawsuit in the City of St. Louis, Missouri on August 31,
2017. Defendants removed the matter to this Court on October
16, 2017. Defendants filed a motion to dismiss and a motion
to sever on October 23. Shortly thereafter, plaintiffs filed
a motion to remand and a motion to stay ruling and briefing
on the defendants' motions until after subject matter
jurisdiction is addressed. The motion for remand (#18) and
motion to stay (#22) have been thoroughly briefed, but
plaintiff has not filed responses to the motion to dismiss.
Plaintiff has also filed a motion for leave to conduct
jurisdictional discovery (#24), which is fully briefed.
claim they were injured by a permanent birth control device
that is manufactured and distributed by the Bayer defendants.
The device --- Essure --- was approved by the Food and Drug
Administration (“FDA”) in 2002. The plaintiffs
bring fourteen counts including negligence, strict liability,
manufacturing defect, fraud, breach of warranties, violation
of consumer protection laws, Missouri products liability,
violation of the Missouri Merchandising Practices Act, and
punitive damages. Of the 95 plaintiffs, only three allege
they are citizens of Missouri or had their implant procedure
completed in Missouri. Defendants --- which are not Missouri
citizens --- removed the case in part on the basis of diversity
jurisdiction. The presence of at least some of the 92
non-Missouri plaintiffs defeats this Court's diversity
jurisdiction. But defendants, relying on the recent United
States Supreme Court opinion Bristol-Myers Squibb Co. v.
Super. Ct. of Cal., 137 S.Ct. 1773 (2017) (hereinafter,
“BMS”), argue that this Court lacks
personal jurisdiction over the claims of the 92 non-Missouri
plaintiffs, and that those claims should thus be dismissed.
Because there would be complete diversity between the three
remaining Missouri plaintiffs and defendants, and because the
amount in controversy exceeds $75, 000, defendants contend
this Court has jurisdiction over the remaining claims.
argue that this Court should not look to personal
jurisdiction. Instead, plaintiffs say this Court should
recognize it does not have subject matter jurisdiction over
this matter and remand the case to St. Louis County. Subject
matter jurisdiction, plaintiffs argue, provides a more
straightforward analysis. Personal jurisdiction, on the other
hand, poses questions that plaintiffs say entitle them to
discovery. Plaintiffs contend that the Bayer defendants
conducted marketing and clinical trials in St. Louis,
Missouri, and that the marketing and clinical trials provide
the facts necessary to make a prima facie case of
have not responded to the motion to dismiss or motion to
sever because they seek a stay of the consideration of
personal jurisdiction in favor of resolving the subject
matter jurisdiction questions at hand.
to all pending motions are matters regarding this Court's
jurisdiction. Thus, jurisdiction and related motions will be
discussed first below.
to resolve cases on the merits requires both authority over
the category of claim in suit (subject-matter jurisdiction)
and authority over the parties (personal jurisdiction), so
that the court's decision will bind them.”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577
(1999). Here, plaintiffs contend that this Court lacks
subject matter jurisdiction over their claims and thus this
Court should remand the matter to state court. Defendants
argue that the Court has subject matter jurisdiction but not
personal jurisdiction over certain claims and that the
non-Missouri plaintiffs' claims should be dismissed ---
then, defendants say, this Court will have diversity
jurisdiction over the remaining claims.
question of which to consider first --- personal jurisdiction
or subject matter jurisdiction --- can have important
consequences. This Court has discretion to consider personal
jurisdiction before subject matter jurisdiction where it has
“a straightforward personal jurisdiction issue
presenting no complex question of state law, and the alleged
defect in subject-matter jurisdiction raises a difficult and
novel question.” Id. at 588.
urge the Court to consider personal jurisdiction first,
relying heavily upon BMS and Jordan v. Bayer
Corp., No. 4:17cv865(CEJ), 2017 WL 3006993 (E.D. Mo.
July 14, 2017). In Jordan, this Court addressed a
case nearly identical to this one in which plaintiffs brought
claims against Bayer defendants related to use of the Essure
device. The Court, relying upon Ruhrgas, addressed
defendants' personal jurisdiction arguments first and
concluded that BMS was dispositive, holding that
“there is no personal jurisdiction as to [the
non-Missouri-related plaintiffs' claims because there is no
‘connection between the forum and the specific claims
at issue.'” Jordan, 2017 WL 3006993, at *4
(quoting BMS, 137 S.Ct. at 1781). Because the 86
non-Missouri-related plaintiffs alleged no “affiliation
between the forum and the underlying controversy, ”
BMS, 137 S.Ct. at 1780, those claims were dismissed.
The Court denied without prejudice the defendants' motion
to dismiss for failure to state a claim or federal preemption
and allowed the eight remaining plaintiffs to file an amended
the Court's decision in Jordan occurred shortly
after BMS was decided.The plaintiffs here have added
allegations they say make a prima facie case of
personal jurisdiction. Plaintiffs concede that Essure was not
implanted in Missouri for the nonresidents, but they contend
Bayer engaged in extensive contacts with Missouri during
Essure's development: plaintiffs say Bayer created a
marketing strategy, created labeling, and obtained FDA
approval of Essure in Missouri. Specifically, Missouri was
one of eight principal sites in the United States chosen to
conduct pre-market clinical trials. The original manufacturer
of Essure used Missouri hospitals and contracted with
Missouri physicians to serve as clinical investigators. The
results of the ensuing studies were used to support the FDA
approval process. Plaintiffs allege that defendants made
untrue representations and omitted material information to
the FDA, plaintiffs, and plaintiffs' physicians by
sponsoring biased medical trials. (Petition ¶ 1044.) St.
Louis, Missouri was also the first city in the United States
to commercially offer the Essure procedure. Furthermore,
plaintiffs believe that Missouri was one of the first cities
targeted for an aggressive marketing campaign.
respond that those additional allegations do not suffice to
either make a case for personal jurisdiction or for
jurisdictional discovery. Moreover, defendants argue that the
personal jurisdiction question remains more straightforward
than the question of subject matter jurisdiction. This Court
agrees that, despite these new allegations made by
plaintiffs, personal jurisdiction remains the more
straightforward inquiry. See BMS, 137 S.Ct. at 1781;
Jordan, 2017 WL 3006993, at *2; see also State
ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41(Mo.
banc 2017). To address subject matter jurisdiction
at this juncture would involve deciding whether non-Missouri
plaintiffs had been fraudulently joined or misjoined, which
is a notoriously complex issue. See In re Prempro Prods.
Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010) (noting
that doctrine of fraudulent misjoinder is “novel”
and declining to rule on whether to accept or reject it);
Filla v. Norfolk S. Ry., 336 F.3d 806, 809 (8th Cir.
2003) (noting that doctrine of fraudulent joinder is
“difficult” to apply). As shown below, ...