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Spain v. Janssen Pharmaceuticals, Inc.

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

March 5, 2018

BRANDON SPAIN, et al., Plaintiffs,



         This 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.

         I. Background

         On 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).

         Defendants 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.

         It is undisputed that defendants are all citizens of New Jersey or Pennsylvania for the purposes of determining diversity. 28 U.S.C. § 1332(c)(1).[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.

         Despite 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.

         Plaintiffs 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.

         II. Discussion

         A. Order of Addressing Threshold Issues

         A 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.

         In the 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).

         The 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).

         The 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. Plaintiffs' ...

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