United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
products liability lawsuit was originally filed in the City
of St. Louis, Missouri on May 31, 2017 by 79 plaintiffs from
33 different states against Defendants Bayer Corporation,
Bayer HealthCare LLC, Bayer Essure, Inc., and Bayer
HealthCare Pharmaceuticals Inc. (collectively
“Bayer”) alleging Bayer's Essure product
caused them harm. (Doc. No. 4). On July 14, 2017, Bayer
removed the case to this Court. (Doc. No. 1). On July 21,
2017, Bayer filed a motion to dismiss (Doc. No. 10) and
motion to sever (Doc. No. 13). Shortly thereafter, Plaintiffs
filed a motion to remand (Doc. No. 17), motion for leave to
conduct jurisdictional discovery (Doc. No. 21), and motion to
stay proceedings pending a determination of the Court's
subject matter jurisdiction. (Doc. No. 19). Finally,
Plaintiffs filed a motion for a hearing on their motions.
(Doc. No. 35). Plaintiffs' motions are fully briefed;
Plaintiffs have not responded to Bayer's motions to
dismiss and to sever, however, asking instead that the Court
stay briefing until it rules on Plaintiffs' motion to
seek to recover damages for injuries they allegedly sustained
from using Essure, a permanent birth control device
manufactured and sold by Bayer. Plaintiffs assert claims of
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 79
plaintiffs, only three allege they are citizens of Missouri
or had their implant procedure in Missouri.
Bayer defendants - which are not Missouri citizens - removed
the case to this Court in part on the basis of diversity
jurisdiction. The presence of at least some of the 76
non-Missouri plaintiffs defeats this Court's diversity
jurisdiction. However, Bayer, relying on the recent United
States Supreme Court opinion Bristol-Myers Squibb Co. v.
Super Ct. of Cal., 137 S.Ct. 1773 (2017), argues this
Court lacks personal jurisdiction over the claims of the 65
non-Missouri plaintiffs and that those claims should be
dismissed or severed.
their motion to remand, Plaintiffs urge the Court to address
subject matter jurisdiction first because the question of
personal jurisdiction will be fact-intensive and require
“extensive” discovery. In the event the Court
decides to address personal jurisdiction before determining
subject matter jurisdiction, and finds Plaintiffs'
allegations that Bayer conducted marketing and clinical
trials in St. Louis, Missouri, inadequate to make a prima
facie case of personal jurisdiction, Plaintiffs seek
have not responded to Bayer's motions to dismiss and to
sever because they seek a stay of these proceedings pending a
determination of the Court's subject matter jurisdiction.
Plaintiffs also request an extension of time to respond to
Bayer's motions until after such jurisdiction is
a federal court first resolves doubts about its jurisdiction
over the subject matter” of a case before addressing
personal jurisdiction issues. Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 578 (1999). However, there are
circumstances in which a court may first address personal
jurisdiction, such as when personal jurisdiction is
straightforward while subject matter jurisdiction is
“difficult, novel, or complex.” Id. at
588; see also Crawford v. F. Horrman-La Roche, Ltd.,
267 F.3d 760, 764 (8th Cir. 2001) (“[C]ertain threshold
questions, such as personal jurisdiction, may be taken up
without a finding of subject-matter jurisdiction, provided
that the threshold issue is simple when compared to the issue
of subject-matter jurisdiction.”).
the approach taken by judges in this district in similar
cases was that subject matter jurisdiction was the less
arduous inquiry. See, e.g. Jones v. Bayer Corp., No.
4:16CV1192 JCH, 2016 WL 7230433, at *2 n.3 (E.D. Mo. Dec. 14,
2016); Tenny v. Bayer Healthcare, LLC, No.
4:16CV1189 RLW, 2016 WL 7235705, at *2 (E.D. Mo. Dec. 13,
2016). However, since Bristol-Myers Squibb and
State ex rel. Norfolk S. Ry. Co. v. Dolan, 512
S.W.3d 41 (Mo. 2017) (en banc), judges in this district have
held that the issue of personal jurisdiction “is now
the more straightforward inquiry.” See Dyson v.
Bayer Corp., No. 4:17CV2584 SNLJ, 2018 WL 534375, at *4
(E.D. Mo. Jan. 24, 2018); Jinright v. Johnson & Johnson,
Inc., No. 4:17CV01849 ERW, 2017 WL 3731317, at *4 (E.D.
Mo. Aug. 30, 2017); Covington v. Janssen Pharm.,
Inc., No. 4:17CV1588 SNLJ, 2017 WL 3433611, at *2- 3
(E.D. Mo. Aug. 10, 2017); Turner v. Boehringer Ingelheim
Pharm., Inc., No. 4:17-CV-01525-AGF, 2017 WL 3310696, at
*2 (E.D. Mo. Aug. 3, 2017); Jordan v. Bayer Corp.,
No. 4:17CV865 CEJ, 2017 WL 3006993, at *2 (E.D. Mo. July 14,
2017); Siegfried v. Boehringer Ingelheim Pharm.,
Inc., No. 4:16 CV 1942 CDP, 2017 WL 2778107, at *1, *5
(E.D. Mo. June 27, 2017).
Court finds that addressing Bayer's challenge to personal
jurisdiction over the claims of the non-Missouri plaintiffs
presents the more straightforward inquiry under recent court
decisions. “Remanding this case for lack of complete
diversity only to have the case removed again later once the
non-Missouri plaintiffs are dismissed, would be a waste of
judicial resources. Ruling personal jurisdiction first is in
the interests of judicial economy and expeditiousness.”
Jinright, 2017 WL 3731317, at *2. Accordingly, the
Court will address Bayer's motion to dismiss before
Plaintiffs' motion to remand.
Motion to dismiss
motion to dismiss, Bayer argues that the claims of the
non-Missouri plaintiffs should be dismissed for lack of
personal jurisdiction and under the doctrine of forum non
conveniens. Further, Bayer argues that Plaintiffs'
claims should be dismissed as preempted and inadequately
pled. The Court will first address the arguments directed to
the non-Missouri plaintiffs' claims.
survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must plead ‘sufficient facts
to support a reasonable inference that the defendant can be
subjected to jurisdiction within the state.'”
Creative Calling Sols., Inc. v. LF Beauty Ltd., 799
F.3d 975, 979 (8th Cir. 2015) (quoting K-V Pharm. Co. v.
J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir.
2011)). The Court views the evidence in a light most
favorable to the plaintiffs and resolves factual conflicts in
the plaintiffs' favor; however, ...