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Johnson v. Bayer Corp.

United States District Court, E.D. Missouri, Eastern Division

February 21, 2018

RACHAEL JOHNSON, et al., Plaintiffs,
v.
BAYER CORPORATION, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This products liability lawsuit was originally filed in the City of St. Louis, Missouri on July 31, 2017 by 69 plaintiffs from 27 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. On November 27, 2017, Bayer removed the case to this Court. On December 4, 2017, Bayer filed a motion to dismiss (Doc. No. 7) and motion to sever (Doc. No. 10). Shortly thereafter, Plaintiffs filed a motion to remand (Doc. No. 14), motion for leave to conduct jurisdictional discovery (Doc. No. 16), and motion to stay proceedings pending a determination of the Court's subject matter jurisdiction. (Doc. No. 21). 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 remand.

         I. Background

         Plaintiffs 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 69 plaintiffs, only four allege they are citizens of Missouri or had their implant procedure in Missouri.

         The Bayer defendants - which are not Missouri citizens - removed the case to this Court in part[1] on the basis of diversity jurisdiction. The presence of at least some of the 65 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.

         In 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 jurisdictional discovery.

         Plaintiffs 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 addressed.

         I. Discussion

         “Customarily, 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.”).

         Generally, 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).

         The 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.[2]

         A. Motion to dismiss

          In its 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.

         “To 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, ...


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