Hamby et al v. Bayer Corp et al

Filing 44

ORDER GRANTING Plaintiffs' Motion to Remand (Doc. 15 ). Signed by Judge Staci M. Yandle on 8/4/2017. (tfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

NICHOLE HAMBY, et al.,

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Plaintiffs,
vs.
BAYER, CORP., et al.,
Defendants.

Case No. 17-CV-17-SMY-DGW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand (Doc. 16). Plaintiffs
seek to remand this case back to the Circuit Court of the Third Judicial Circuit, Madison County,
Illinois because this Court lacks subject matter jurisdiction. Defendants oppose the motion (Doc.
24). For the following reasons, Plaintiffs’ motion is GRANTED.
Background
Plaintiffs are 86 individuals who are citizens of 22 different states (Doc. 1-1, p. 4-7).1
Defendant Bayer Corporation is a citizen of Indiana and Pennsylvania, Defendant Bayer
Healthcare LLC is a citizen of Delaware and Pennsylvania, Defendant Bayer Essure Inc. is a
citizen of Delaware and New Jersey, and Defendant Bayer Healthcare Pharmaceuticals, Inc. is a
citizen of Delaware and New Jersey (Doc. 1-1, p. 7-8).
Plaintiffs filed this action in the Circuit Court of the Third Judicial Circuit, Madison
County, Illinois, seeking damages against Defendants arising out of alleged injuries sustained as
a result of the implantation and use of Essure – a medical device designed to be a form of

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Specifically, Plaintiffs are citizens of Illinois, Virginia, Georgia, Indiana, Arizona, Pennsylvania, Nevada, Ohio,
Oregon, Texas, Colorado, North Carolina, New York, West Virginia, Alabama, Oklahoma, Kentucky, Florida,
Kansas, Delaware, Iowa, and New Jersey.

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permanent female birth control. Defendants removed the action to this Court asserting diversity
citizenship jurisdiction pursuant to 28 U.S.C. § 1332 and federal question jurisdiction pursuant to
28 U.S.C. § 1331.
Discussion
A civil action may be removed to federal court if the district court has original
jurisdiction. 28 U.S.C. § 1441. Courts have original jurisdiction of civil actions if there is
complete diversity between the parties and the amount in controversy exceeds $75,000, exclusive
of interest and costs. Complete diversity means that “none of the parties on either side of the
litigation may be a citizen of the state of which a party on the other side is a citizen.” Howell v.
Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted). The removal
statute is construed narrowly and any doubts regarding jurisdiction are resolved in favor of
remand. Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). If the district court lacks
subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. §
1447(c). The burden of establishing federal jurisdiction falls on the party seeking removal. Id.
It should be noted that this Court previously sua sponte remanded a nearly identical
multi-plaintiff litigation involving the same arguments, the same defendants and the same
product at issue in this case. See Rios v. Bayer Corp., No. 16-CV-1010-SMY-RJD, 2016 WL
5929246 (S.D. Ill. Oct. 12, 2016), appeal docketed, No. 16-3896 (7th Cir. Nov. 14, 2016). Here,
Defendants are citizens of Indiana, Pennsylvania, Delaware and New Jersey. Plaintiff Holly
Masclans is a citizen of New Jersey, Plaintiffs Dawn Heit and Stephany Carrigg are citizens of
Indiana, Plaintiffs Elizabeth Byler, Vanessa Ramos and Christa Cole are all citizens of
Pennsylvania and Plaintiff Tonya Williams is a citizen of Delaware. As such, complete diversity
does not exist on the face of the Complaint.
Defendants do not deny that complete diversity is lacking. Rather, they argue that this

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Court nonetheless has diversity jurisdiction because the out-of-state Plaintiffs’ claims should be
dismissed for lack of personal jurisdiction or under the doctrine of forum non conveniens.
Defendants further assert that the out-of-state Plaintiffs’ claims were either fraudulently joined or
procedurally misjoined, and thus the non-diverse Plaintiffs’ citizenship should be ignored for
purposes of determining jurisdiction. Defendants have filed a motion to dismiss (Doc. 5) and a
motion to sever the non-diverse parties (Doc. 8) on these bases. However, because subject
matter jurisdiction is clearly lacking on the face of the Complaint, this Court once again declines
Defendants’ invitation to address the issue of personal jurisdiction.

See Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 587–88, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (stating that if
subject-matter jurisdiction involves “no arduous inquiry,” then “both expedition and sensitivity
to state courts' coequal stature should impel the federal court to dispose of that issue first”);
Anglin v. Bristol-Myers Squibb Co., 2012 WL 1268143, at *4 (S.D. Ill. 2012); Lambert v. WalMart Stores, Inc., 2015 WL 264817, at *3 (S.D. Ill. 2015).
As they did in Rios, Defendants also seek to invoke federal question jurisdiction pursuant
to 28 U.S.C. § 1331, asserting that Plaintiffs’ claims depend on the resolution of a substantial,
disputed federal question and that the exercise of jurisdiction will not disrupt the balance
between federal and state jurisdiction adopted by Congress. Pursuant to 28 U.S.C. § 1331,
federal district courts may assert jurisdiction over cases arising under the Constitution, laws, or
treaties of the United States. Federal question jurisdiction is present where the face of the
Complaint alleges a violation of federal law. Caterpillar Inc. v. Williams, 482 U .S. 386, 392
(1987). To establish federal question jurisdiction in this case, Defendants must show either: (1)
that a federal statute grants the court jurisdiction; or (2) that there is common law jurisdiction to
a “uniquely federal interest,” which would be frustrated by the “application of state law.”
Northrop Corp. v. AIL Systems, Inc., 959 F.2d 1424, 1426–27 (7th Cir. 1992).

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In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 106 S.Ct. 3229, 92
L.Ed.2d 650 (1986), the plaintiff alleged that ingestion of a drug manufactured by the defendant
resulted in birth defects, claiming in part that the drug was “misbranded” in violation of the
Food, Drug, and Cosmetic Act (FDCA). Id. at 805. The Supreme Court noted that “the mere
presence of a federal issue in a state cause of action does not automatically confer federalquestion jurisdiction.” Id. at 813. The Court went on to hold that even though federal law would
have to be applied in resolving the case, the issues did not sufficiently implicate important
federal interests since the FDCA provides no federal cause of action. Id. at 814. Likewise, while
Plaintiffs in the instant action allege that Defendants’ conduct violates the FDCA and, as such,
the disposition of the case will likely require the consideration of federal regulations, those facts
alone are insufficient to create federal question jurisdiction. See Lancaster v. Astellas Pharma,
Inc., No. 08–cv–0133–MJR, 2008 WL 4378441, at *4 (S.D. Ill. 2008) (noting “the mere fact that
a state court may have to reference federal regulations in determining the outcome of a claim is
not sufficient by itself to create a substantial federal question); Wagner v. Wisconsin Auto Title
Loans, Inc., 584 F.Supp.2d 1123, 1125 (E.D. Wis. 2008) (incorporation of federal regulation
though state statute insufficient to create disputed issue of federal law where alleged conduct, if
true, would indisputably violate federal statute); Fuller v. BNSF Ry. Co., 472 F.Supp.2d 1088,
1094 (S.D. Ill. 2007) (rejecting federal question jurisdiction where plaintiff's complaint cited a “a
lone federal regulation as an element of a state-law tort claim”); Orbitz, LLC v. Worldspan, L.P.,
425 F.Supp.2d 929 (N.D. Ill. 2006) (declining to exercise federal question jurisdiction where
plaintiffs' claim under the Illinois Consumer Fraud and Deceptive Business Practices Act alleged
violation of federal regulations but resolution of claim turned on showing of deceptive conduct).
Because this Court lacks subject matter jurisdiction over this matter, it is obligated,
pursuant to 28 U.S.C. § 1447(c), to remand the case back to the Circuit Court of the Third

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Judicial Circuit, Madison County, Illinois. Accordingly, the Clerk of Court is DIRECTED to
REMAND this case and to terminate all pending motions as MOOT.
IT IS SO ORDERED.
DATED: August 4, 2017
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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