Colson et al v. Bayer Corporation et al

Filing 12

ORDER, GRANTING 11 MOTION for Order to Dismiss for Lack of Jurisdiction Pursuant to CMO 70 - Plaintiff Nancy Howell Only filed by Bayer Healthcare Pharmaceuticals, Inc. Nancy Howell terminated.Signed by Judge David R. Herndon on 4/26/2015. (dsw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
IN RE: YASMIN AND YAZ
(DROSPIRENONE) MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY
LITIGATION

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3:09-md-02100-DRH-PMF
MDL No. 2100

This Document Relates to:
Margaret Colson, et al. vs. Bayer Corporation, et al. 3:12-cv-11434DRH-PMF 1
ORDER
HERNDON, District Judge:
Presently before the Court is defendants’ Rule 12(b)(1) and 21 motion to
dismiss for lack of subject matter jurisdiction filed in accord with Case
Management Order Number 70 (“CMO 70”) (MDL 210 Doc. 3634). The
defendants move the Court to sever and dismiss plaintiff Nancy Howell’s claims
for lack of subject matter jurisdiction. In accord with CMO 70, the plaintiff was
given 14 days to respond. The plaintiff has failed to respond in any way to the
defendants’ motion. The Court deems the failure to respond to be an admission of
the merits of the motion. SDIL-LR 7.1(c).
It is evident that diversity jurisdiction is lacking. In the instant case,
plaintiff Howell is a citizen of New Jersey. Defendant Bayer Healthcare
Pharmaceuticals Inc. is also a citizen of New Jersey. Accordingly, complete
diversity is lacking. See Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 388

1

This Order applies to plaintiff Nancy Howell only.

(1998) (Breyer, J.) (complete diversity exists “only if there is no plaintiff and no
defendant who are citizens of the same state”).
A district court has the authority, pursuant to Federal Rule of Civil
Procedure 21, “to allow a dispensable nondiverse party to be dropped at any time,
even after judgment has been rendered” for the purpose of maintaining diversity
of citizenship jurisdiction. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,
832, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (Marshall, J.). 2
Because plaintiff Howell’s claims destroy complete diversity, the defendants’
motion to sever and dismiss is GRANTED. The claims of plaintiff Howell are
severed pursuant to Rule 21 and dismissed for lack of subject matter jurisdiction.
IT IS SO ORDERED.
Signed this 26th day of April, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.04.26
07:12:26 -05'00'
United States District Court

2

The Court notes that in previous decisions it has declined to utilize Rule 21 to sever nondiverse
plaintiffs in removed actions. The concerns the Court has expressed with regard to this use of
Rule 21 in removed actions are not applicable in the instant case. See e.g., In re Pradaxa
(Dabigatran Etexilate) Products Liability Litigation, 2014 WL 257831, *2 n.2 (S.D. Ill. Jan. 23,
2014) (Herndon, C.J.)