United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendants Janssen
Pharmaceuticals, Inc., Johnson & Johnson Company, Janssen
Research and Development, LLC, and Patriot Pharmaceuticals,
L.L.C.'s motion to dismiss the claims of the out-of-state
plaintiffs for lack of personal jurisdiction, or in the
alternative, motion for more definite statement. Also before
the Court are plaintiffs' motion to remand and motion to
stay these proceedings. The motions are fully briefed and
ripe for disposition.
March 3, 2017, 87 plaintiffs filed this action in the Circuit
Court of the City of St. Louis State of Missouri, alleging
ten state law causes of action against defendants arising out
of their manufacture and sale of the drug Risperdal/Invega
(“Risperdal”). Plaintiffs, who are comprised of
minor children, parents and/or guardians of minor children,
and adult plaintiffs, allege that they have suffered serious
injury and damages that were caused by Risperdal. They bring
state law claims for negligence (Count I); fraud (Count II);
strict product liability-failure to warn (Count III); strict
product liability (Count IV); negligent misrepresentation
(Count V); breach of express warranty (Count VI); breach of
implied warranty (Count VII); violation of Missouri
Merchandising Practices Act (Count VIII); conspiracy (Count
IX); and medical expenses incurred by parent (Count X).
removed the action to this Court on the basis of diversity
jurisdiction. In their notice of removal, defendants aver
“this removal does not in any way rely on the
so-called ‘fraudulent misjoinder' doctrine as
explained in Kirkland v. Wyeth (In re Prempro
Products Liability Litigation), 591 F.3d 613 (8th Cir.
2010).” Doc. 1 at 2 (emphasis in original). According
to defendants, “the United States District Court for
the Eastern District of Missouri, Eastern Division, has
original subject matter jurisdiction of this civil action
pursuant to 28 U.S.C. § 1332(a) because there is
complete diversity among all properly joined and served
parties, and the amount in controversy exceeds $75, 000.00,
exclusive of interest and costs.” Id. at 2-3.
undisputed that defendants are all citizens of New Jersey or
Pennsylvania for the purposes of determining diversity. 28
U.S.C. § 1332(c)(1). Plaintiffs are alleged to be citizens
of the District of Columbia and the following 27 states:
Missouri, New Jersey, Pennsylvania, Alabama, Arkansas,
California, Florida, Georgia, Illinois, Indiana, Kentucky,
Louisiana, Massachusetts, Maryland, Maine, Minnesota,
Mississippi, North Carolina, North Dakota, New York, Ohio,
Rhode Island, South Carolina, Tennessee, Texas, Virginia, and
Wisconsin. As there are plaintiffs from New Jersey and
Pennsylvania, complete diversity does not exist on the face
of the complaint.
the lack of complete diversity on the face of the complaint,
defendants assert that federal diversity jurisdiction exists
because this Court does not have general jurisdiction over
the defendants to hear plaintiffs' claims, and none of
the out-of-state plaintiffs can establish specific personal
jurisdiction over the defendants in Missouri. Defendants have
filed a motion to dismiss the claims of all the out-of-state
plaintiffs for lack of personal jurisdiction, and urge to the
Court to address that motion first. According to defendants,
granting the motion to dismiss is straightforward and will
create complete diversity between defendants and the
remaining Missouri plaintiffs. In the alternative, defendants
argue that the citizenship of all non-Missouri plaintiffs
should be disregarded because their claims were
“fraudulently joined” in that these plaintiffs
cannot establish personal jurisdiction over any defendant in
any court in Missouri. Doc. 1 at 7-8, 18-20.
move to remand the case to state court. Plaintiffs assert
that there is a lack of complete diversity of the parties and
no federal question is raised. Plaintiff note that judges in
this District, including the undersigned, have remanded
numerous similar multi-plaintiff actions involving the same
product and same defendants. Plaintiffs urge the Court to
follow these decisions and address the straightforward issue
of subject matter jurisdiction before addressing personal
jurisdiction, which is more complicated and fact dependent.
Order of Addressing Threshold Issues
federal court may not proceed in a case unless it has subject
matter jurisdiction. See Crawford v. F. Hoffman-La Roche
Ltd., 267 F.3d 760, 764 (8th Cir. 2001). Certain
threshold issues, however, such as personal jurisdiction, may
be addressed without a finding of subject matter
jurisdiction, “provided that the threshold issue is
simple when compared with the issue of subject matter
jurisdiction.” Id. (citing Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 588 (1999)). It is
within the Court's discretion to determine whether to
decide the issues of personal jurisdiction or subject matter
jurisdiction first. Id. The Supreme Court in
Ruhrgas acknowledged, however, that “in most
instances subject-matter jurisdiction will involve no arduous
inquiry” and “[i]n such cases, both expedition
and sensitivity to state courts' coequal stature should
impel the federal court to dispose of that issue
first.” Id. at 587-88.
past, when presented with cases such as this, the undersigned
has addressed the issue of subject matter jurisdiction first.
See, e.g., Swann v. Johnson &
Johnson, No. 4:14-CV-1546 CAS, 2014 WL 6850776, at *1
(E.D. Mo. Dec. 3, 2014). But since last taking up the issue,
there have been two recent decisions from the United States
Supreme Court and the Missouri Supreme Court addressing
personal jurisdiction: Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., S. F. Cnty., 137 S.Ct. 1773 (2017); and
State ex rel. Norfolk S. Ry. Co. v. Dolan, 512
S.W.3d 41 (Mo. 2017) (en banc). Defendants argue that these
two cases simplify the personal jurisdiction inquiry where
there are multiple out-of-state plaintiffs and national
defendants. Defendants contend that cases such as
Swann, 2014 WL 6850776, at *1, are no longer good
law, and they urge the Court to follow another case from this
district where personal jurisdiction was addressed first.
Siegfried v. Boehringer Ingelheim Pharm.,
Inc., No. 4:16-CV-1942 CDP, 2017 WL 2778107, at *1-6
(E.D. Mo. June 27, 2017).
Court does not agree that Bristol-Myers, 137 S.Ct.
1773, and State ex rel. Norfolk S. Ry., 512 S.W.3d
41, have changed the law established in Ruhrgas, 526
U.S. 574. It is still within the Court's discretion to
decide which threshold issue to address first, taking into
account which issue is simpler and can be decided more
expeditiously. Ruhrgas, 526 U.S. at 587-88. The
Court notes that even after Bristol-Myers, and
State ex rel. Norfolk S. Ry., there has been no
consensus in this District as to which issue to address
first. See, e.g., Sheffield v. Janssen
Pharm., Inc., No. 4:17-CV-1254 RLW, 2017 WL 5953104, at
*1 (E.D. Mo. Nov. 29, 2017), reconsideration denied,
No. 4:1-CV-1254 RLW, 2018 WL 280786 (E.D. Mo. Jan. 3, 2018)
(addressing the issue of subject matter jurisdiction first,
and remanding to state court for lack of diversity
jurisdiction); Somerville v. Janssen Pharm., No.
4:17-CV-1307-RLW, 2017 WL 5903500, at *1 (E.D. Mo. Nov. 28,
2017), reconsideration denied, No. 4:17-CV-1307 RLW,
2018 WL 280787 (E.D. Mo. Jan. 3, 2018) (same).
recent decisions by the United States Supreme Court and the
Missouri Supreme Court may make the issue of personal
jurisdiction easier to decide when there is no evidence that
the out-of-state plaintiffs' claims arise out of
defendants' contacts within this state,
Siegfried, 2017 WL 2778107, at *1-6, see also
Covington v. Janssen Pharms. Inc.¸ No.
4:17-CV-1588 SNLJ, 2017 WL 3433611, at *5 (E.D. Mo. Aug. 10,
2017), but that is not necessarily the case here. In opposing
defendants' motion to dismiss for lack of personal
jurisdiction, plaintiffs maintain that they have evidence
that the defendants generated and disseminated information
about Risperdal and its use in children and adolescents both
in and out of Missouri. Plaintiffs also state that they have
evidence the defendants partnered with Washington University
School of Medicine in St. Louis to conduct Risperdal studies,
and subsequently used the findings of those sponsored studies
to aid the defendants in nationwide marketing efforts.
Plaintiffs also assert they have evidence that
“[d]efendants recruited Missouri neurologists,
psychiatrists, and pediatricians to participate in targeted
market research in Missouri, and used this market research
specifically to identify the key messages that would
effectively communicate to doctors the supposed benefits of
using Risperdal in pediatric and adolescent patients with
autism and severe behavioral issues.” Doc. 20 at 4.