Roland et al v. Janssen Research & Development, LLC et al
Filing
20
ORDER granting 15 Motion to Remand. Signed by Judge David R. Herndon on 7/18/2017. (kmb2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOLLY ROLAND, et al.,
Plaintiffs,
v.
No. 3:17-cv-00582-DRH
JANSSEN RESEARCH & DEVELOPMENT,
LLC, f/k/a JOHNSON AND JOHNSON
PHARMACEUTICAL RESEARCH AND
DEVELOPMENT LLC; JANSSEN ORTHO
LLC; JANSSEN PHARMACEUTICALS, INC.,
f/k/a JANSSEN PHARMACEUTICA, INC., f/k/a
ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS,
INC.; BAYER HEALTHCARE PHAMACEUTICALS INC.;
BAYER PHARMA AG; BAYER CORPORATION;
BAYER HEALTHCARE LLC; BAYER HEALTHCARE AG;
BAYER AG,
Defendants.
ORDER
HERNDON, District Judge:
Before the Court is plaintiffs’ Motion to Remand (Doc. 15), pursuant to 28
U.S.C. § 1447(c).
Defendants oppose (Doc. 19).
Based on the following, the
Court GRANTS the Motion to Remand (Doc. 15) for lack of subject matter
jurisdiction, and REMANDS the matter to the St. Clair County, Illinois Circuit
Court.
I. BACKGROUND
On April 27, 2017, plaintiffs filed a one hundred eight (108) count
complaint against defendants in the Circuit Court, Twentieth Judicial Circuit, St.
Clair County, Illinois (Doc. 1-1). Plaintiffs sought relief for personal injuries and
economic damages suffered by use of Xarelto (rivaroxaban), which was designed,
researched, developed, manufactured, tested, labeled, advertised, marketed,
promoted, distributed, and sold by defendants and their representatives (Id.).
Moreover, plaintiffs allege defendants failed to adequately test Xarelto, and
further, failed to warn consumers or physicians of its life-threatening risks—
including the risk of uncontrollable bleeding (Id.).
On June 2, 2017, defendants removed the case to this Court based on
diversity jurisdiction pursuant to 28 U.S.C. §§ 1331, 1441 and 1446 (Doc. 1).
Defendants claim the case was filed by numerous improperly joined out-of-state
plaintiffs and one Illinois-resident plaintiff; and as a result, argue this Court has
subject matter jurisdiction over the case under 28 U.S.C. § 1332(a) (Id. at 2).
Specifically, defendants contend that—on its face—plaintiffs’ complaint does not
allege complete diversity between parties, 1 and it has not been established that
any named defendant is subject to personal jurisdiction in Illinois for claims
asserted (Id. at 5).
As a consequence, defendants maintain this Court lacks
personal jurisdiction regarding non-resident plaintiffs’ claims, and possesses the
discretion to dispose of claims on the ground of personal jurisdiction prior to
ruling on the issue of subject matter jurisdiction (Id.).
1
Defendants declare themselves citizens of Delaware, Germany, Indiana, Ireland, Netherlands,
New Jersey, Pennsylvania, and Bermuda; and contend that Nonresident plaintiffs are citizens of
New Jersey (John Luddy), Pennsylvania (Norman Carl and Germaine Carey, Individually and as
Representative for William Carey), Arkansas (Lydia Holland), Mississippi (James Valentine,
Individually and as Representative for Daniel Valentine), Tennessee (Ezra Thomas and Rickey
Bonner, Individually and as Representative for Debbie Bonner), Louisiana (John Morgan),
Kentucky (Randall Goff), Georgia (Billy Lee, Individually and as Representative for Wilma Jean
Lee), Virginia (Sharon Baker, Individually and as Representative for Eugene Baker), Indiana
(Nathaniel Terrell), and Ohio (Lawrence Evans) (Doc. 1 at 5).
In addition, defendants state the intention to seek the inclusion of this
action in MDL Proceeding No. 2592, 2 captioned In re: Xarelto (Rivaroxaban)
Products Liability Litigation, in the Eastern District of Louisiana.
For relief,
defendants request this Court defer to the overseeing MDL Court’s procedures
concerning nationwide Xarelto litigation; sever non-resident plaintiffs’ claims for
lack of personal jurisdiction, and exercise subject matter jurisdiction over claims
of the Illinois resident (Id. at 6-8).
On June 8, 2017, plaintiffs filed a Motion to Remand (Doc. 15) pursuant to
28 U.S.C. § 1447(c) arguing that this Court lacks subject matter jurisdiction; as
there is no diversity jurisdiction because: (1) plaintiff John Luddy and defendants
Janssen Pharmaceuticals, Inc., Bayer HealthCare Pharmaceuticals Inc., Bayer
Corporation, and Bayer HealthCare LLC are citizens of the State of New Jersey;
(2) plaintiffs Norman Carl, Germaine Carey and her decedent, William Carey, and
defendants Janssen Research & Development, LLC, Janssen Pharmaceuticals,
Inc., and Bayer HealthCare LLC are citizens of the State of Pennsylvania; and (3)
plaintiff Nathaniel Terrell and Defendant Bayer Corporation are citizens of the
State of Indiana (Doc. 16).
As a result, plaintiffs proclaim lack of complete
diversity of citizenship and further request the Court remand the matter back to
state court for further proceedings (Id. at 2).
In response, defendants argue this matter—in actuality—is 14 distinct
cases filed by citizens of Illinois, New Jersey, Pennsylvania, Arkansas, Mississippi,
2
On December 12, 2014, the Judicial Panel on Multidistrict Litigation issued an order
establishing MDL Proceeding No. 2592 for federal actions involving allegations of severe bleeding
or other injuries as a result of using Xarelto.
Tennessee, Louisiana, Kentucky, Georgia, Virginia, Indiana and Ohio; and is a
deliberate attempt to trounce removal rights, avoid jurisdiction of this Court, and
inappropriately prohibit transfer to MDL No. 2592 (Doc. 19).
Specifically,
defendants maintain complete diversity as to the Illinois plaintiff, as no
defendants are organized or incorporated under the laws of Illinois, and there is
no personal jurisdiction in Illinois over the claims of New Jersey, Pennsylvania,
Arkansas, Mississippi, Tennessee, Louisiana, Kentucky, Georgia, Virginia, Indiana
or Ohio non-resident plaintiffs who used Xarelto in their home states, and whose
claims do not arise out of defendants’ conduct in Illinois (Id.). As the motion to
remand is ripe, the Court will now address the merits of the motion.
II. ANALYSIS
A civil action may be removed to federal court if the district court has
original jurisdiction. See 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 “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 by Goerdt v. Tribune
Entm’t 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 remand. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 753, 758
(7th Cir. 2009); 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. See Doe, 985 F.2d at 911.
Here, there is no dispute that plaintiff John Luddy and defendants Janssen
Pharmaceuticals, Inc., Bayer HealthCare Pharmaceuticals Inc., Bayer Corporation,
and Bayer HealthCare LLC are citizens of the State of New Jersey; plaintiffs
Normal Carl, Germaine Carey and her decedent, William Carey, and defendants
Janssen Research & Development, LLC, Janssen Pharmaceuticals, Inc., and
Bayer HealthCare LLC are citizens of the State of Pennsylvania; and plaintiff
Nathaniel Terrell and Defendant Bayer Corporation are citizens of the State of
Indiana. 3
Consequently, complete diversity does not exist on the face of the
complaint. Rather, defendants contend that non-resident plaintiffs’ claims should
be dismissed for lack of personal jurisdiction in that non-resident plaintiffs were
improperly joined with other claims to defeat diversity jurisdiction.
This doctrine is called “procedural misjoinder,” also known as “fraudulent
misjoinder,” and was first recognized in Tapscott v. MS Dealer Serv. Corp., 77
F.3d 1353, 1360 (11th Cir. 1996). This doctrine has been rejected repeatedly by
this Court and several other District Judges in this Judicial District. See Sabo v.
Dennis Techs., LLC, 2007 WL 1958591 (S.D. Ill. July 2, 2007) (Herndon, J.); In
re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products
Liability Litigation, 779 F.Supp.2d 846, 853 (S.D. Ill. 2001) (Herndon, C.J.); Abel
v. SmithKline Beecham Corp., 2013 WL 5835404 (S.D. Ill. October 30, 2013)
(Herndon, C.J.) (compiling cases and reaffirming the Court’s previous decisions
3
Monetary threshold is also undisputed.
on fraudulent misjoinder); In re Pradaxa (Dabigatran Etexilate) Products Liability
Litigation, 2014 WL 257831 (S.D. Ill. January 23, 2014) (Herndon, C.J.); see e.g.
Rutherford v. Merck Co., 482 F.Supp.2d 842, 851 (S.D. Ill. 2006) (Murphy, J.);
Aranda v. Walgreen Co., 2011 WL 3793648 (S.D. Ill. Aug. 24, 2011) (Gilbert, J.);
Rios v. Bayer Corp., et al., 2016 WL 5929246 (S.D. Ill. October 12, 2016) (Yandle,
J.).
Fraudulent joinder, which the Seventh Circuit has recognized, “occurs
either when there is no possibility that a plaintiff can state a cause of action
against nondiverse defendants in state court, or where there has been outright
fraud in the pleading.” Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.
1993).
“In determining whether there is diversity of citizenship, parties
fraudulently joined are disregarded.”
Id.
In contrast, procedural misjoinder,
which the Seventh Circuit has not had the occasion to discuss, typically invokes a
defendant’s argument that a plaintiff’s complaint has egregiously misjoined
unrelated, non-fraudulent claims of nondiverse plaintiffs, in an attempt to avoid
federal court.
See Tapscott, at 1360.
Therefore, the doctrine of procedural
misjoinder requires a court to evaluate the applicable permissive joinder rules.
The Court has discussed extensively its reasoning in respectfully declining
to recognize the doctrine of procedural misjoinder. See Sabo, 2007 WL 1958591
at *6-8; In re Yasmin, 779 F.Supp.2d at 853-857; Abel, 2013 WL 5835404 at *2;
In re Pradaxa, 2014 WL 257831 at *2-3. Based on the foregoing, the Court does
not have diversity jurisdiction over plaintiff’s complaint. Further, the Court need
not determine the existence of personal jurisdiction. See Meyers v. Oneida Tribe
of Indians of Wis., 836 F.3d 818, 821 (7th Cir. 2016) (federal court has leeway to
choose among threshold grounds for denying audience to case on merits); see also
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999) (district court does
not contravene Article III limits in declining jurisdiction of state law claims on
discretionary grounds without determining whether said claims fall under subject
matter jurisdiction).
III. CONCLUSION
Accordingly, the Court GRANTS the motion to remand (Doc. 15) for lack of
subject matter jurisdiction.
Pursuant to 28 U.S.C. § 1447(c), this matter is
REMANDED to the St. Clair County, Illinois Circuit Court.
IT IS SO ORDERED.
Signed this 18th day July, 2017.
Digitally signed by
Judge David R.
Herndon
Date: 2017.07.18
11:52:58 -05'00'
UNITED STATES DISTRICT JUDGE
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