BeRousse et al v. Janssen Research & Development, LLC et al

Filing 35

ORDER denying 12 Motion to Remand; granting 21 Motion to Dismiss Case for Lack of Jurisdiction and denying 24 Motion to Stay. The Court DISMISSES without prejudice for lack of personal jurisdiction the following non-Illinois plaintiffs, Mar vin Redford, Paul Ley, Robert Kelley, Tammy Jones, Leisa Oxford, Rosemarie Burke, Michael Tubbs, Linda Overstreet, Carol Hathaway, John Lovier, Beverly Lewis, Delores Williams, Robert Poole, Linda Jones, Billie Godwin, Alice Leacraft, Marianne Matucz inski, Gerald Cummings, Bonnie Stout, Gweldon Lewis, Charles Hinchman, John Jacoby, Ronnie Hearns, Carlos Anderson, Jeff Beaumont, Yakisha Brown-Bell, Shirely Green, Robert Lantz, Beverly Lively, Lorene Engle, Ricco Stough, and Lewis Bivens. The Court RETAINS jurisdiction over defendants regarding Illinois plaintiff BeRousses claims. Signed by Judge David R. Herndon on 9/26/2017. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ELIZABETH BEROUSEE,
et al.,
Plaintiffs,
v.

No. 3:17-cv-00716-DRH

JANSSEN RESEARCH & DEVELOPMENT, LLC,
f/k/a JOHNSON AND JOHNSON PARMACEUTICAL
RESEARCH AND DEVELOPMENT, LLC; JANSSEN
ORTHO LLC; JANSSEN PHARMACEUTICALS, INC.,
f/k/a JANSSEN PHARMACEUTICA, INC., f/k/a ORTHOMCNEIL-JANSSEN PHARMACEUTICALS, INC.;
BAYER HEALTHCARE PHARMACEUTICALS INC;
BAYER PHARMA AG; BAYER CORPORATION;
BAYER HEALTHCARE LLC; BAYER HEALTHCARE AG;
and BAYER AG,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Before the Court is plaintiffs’ motion to remand (Doc. 12) and defendants’
motion to dismiss for lack of personal jurisdiction (Doc. 21).

Based on the

following, the Court DENIES the motion to remand and GRANTS the motion to
dismiss for lack of personal jurisdiction. Further, the Court DENIES the motion
to stay (Doc. 24).
I. BACKGROUND
A. Notice of Removal/Complaint
On July 7, 2017, defendants removed the case to this Court based on 28
U.S.C. §§ 1332, 1441, and 1446, from the Circuit Court of St. Clair County,
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Illinois 1 (Id.).

Specifically, defendants argue they are not subject to personal

jurisdiction in Illinois based on the claims of the 32 non-Illinois plaintiffs from 18
different states who were embedded in the lawsuit explicitly to destroy diversity
jurisdiction (Id.).

As a result, defendants insist dismissal of the non-Illinois

plaintiffs’ claims for lack of personal jurisdiction—leaving Illinois plaintiff
Elizabeth as BeRousse as sole claimant in the action (Id.).
Defendants draw attention to the recent Supreme Court ruling in Bristol-

Meyers Squibb Co. v. Super. Ct. of Cal., S.F. Cty., 137 S.Ct. 1773 (2017) (“BMS”)
which established state courts lack specific jurisdiction to entertain non-resident
plaintiff claims 2 (Id. at 2). Put differently, defendants argue BMS indisputably
confirms lack of specific jurisdiction in respect to claims against defendants
asserted by non-Illinois plaintiffs, who were neither prescribed Xarelto, nor used
Xarelto in Illinois; and whose claims possess no connection to Illinois—
irrespective of whether joined with those of Douthit (Id.). Defendants argue that
removal is proper, and further urge the Court, under Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574 (1999), to exercise discretion and initially rule on the question
of personal jurisdiction before subject-matter jurisdiction. Under this rationale,

1

Plaintiffs’ Complaint was filed on May 31, 2017, in the St. Clair County, Illinois Circuit Court
seeking damages for injuries sustained as a result of ingesting the pharmaceutical drug Xarelto
(rivaroxaban) (Doc. 1-1).
On June 19, 2017, the Supreme Court’s holding in BMS established the Fourteenth
Amendment’s due process clause did not permit the exercise of specific personal jurisdiction in
state court over nonresident consumer’s claims. See BMS at 1781 (“In order for a court to exercise
specific jurisdiction over a claim, there must be an affiliation between the forum and the
underlying controversy, principally, an activity or an occurrence that takes place in the forum
State”) (internal quotation marks and brackets omitted).
2

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dismissal of the non-Illinois plaintiffs creates complete diversity between
BeRousse and defendants (Id.).
B. Plaintiffs’ Motion to Remand
Plaintiffs maintain that there is no question that the Court lacks diversity
jurisdiction as plaintiff Yakisha Brown-Bell is a citizen of the State of New Jersey
and defendants Janssen Research & Development, LLC, f/k/a Johnson and
Johnson

Pharmaceutical

Research

and

Development,

LLC,

Janssen

Pharmaceuticals, Inc., f/k/a Janssen Pharmaceutica, In., f/k/a Ortho-McNeil
Janssen Pharmaceuticals, Inc., Bayer Healthcare Pharmaceuticals, Inc. and Bayer
Healthcare, LLC are also citizens of New Jersey. Moreover, plaintiffs contend the
grounds for removal fail and respectfully request the Court remand the case to the
St. Clair County, Illinois Circuit Court.
C. Defendants’ 12(b)(2) Motion to Dismiss
Subsequently, defendants filed a motion to dismiss claims of the nonIllinois plaintiffs for lack of personal jurisdiction (Doc. 21). The argument was
identical to defendants’ above-mentioned response: plaintiff BeRousse is a citizen
of Illinois; the remaining plaintiffs are not citizens of Illinois; and, were not
prescribed Xarelto in Illinois, did not use Xarelto in Illinois, was not injured in
Illinois, and moreover, asserted no claims arising out of defendants’ conduct in
Illinois (Doc. 22).
II. ISSUES PRESNTED
The Court shall determine: (1) whether precedence should be given to
personal jurisdiction over subject-matter jurisdiction in ruling on plaintiffs’
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Motion to Remand; and (2) whether the Court possesses personal jurisdiction
over defendants; and if claims remain.
III. ANALYSIS
A. Discretion in Jurisdiction
“Customarily, a federal court first resolves doubts about its jurisdiction
over the subject matter, but there are circumstances in which a district court
appropriately accords priority to a personal jurisdiction inquiry.” Ruhrgas AG, at
578. Although inquiries into subject-matter jurisdiction must be undertaken sua

sponte, see FED. R. CIV. P. 12(h)(3) (if court determines at any time it lacks
subject-matter jurisdiction it must dismiss the action), it does not necessarily

mean subject-matter jurisdiction is perpetually more significant than personal
jurisdiction. See Advanced Tactical Ordnance Sys., LLC, v. Real Action Paintball,
Inc., 751 F.3d 796, 800 (7th Cir. 2014) (citing Ruhrgas AG at 584, and explaining
district court is entitled to entertain threshold personal jurisdiction inquiry at
outset of case); see also Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765, 779 (2000) (stating without personal jurisdiction court is powerless
to proceed to adjudication); Philos Tech., Inc., v. Philos & D, Inc., 645 F.3d 851,
855 (7th Cir. 2011) (“A court ‘without personal jurisdiction of the defendant’ is
wholly ‘without power to proceed to an adjudication’ binding on that defendant,
regardless of the specific reason such jurisdiction is lacking.”).
Consequently, district courts “do not overstep Article III limits when [ ]
declin[ing] jurisdiction of state-law claims on discretionary grounds without
determining whether those claims fall within their pendent jurisdiction . . .
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without deciding whether the parties present a case or controversy.” Ruhrgas AG,
at 585.

Where a straightforward personal jurisdiction issue presenting no

complex question of state law is pending before the Court—and the dispute over
subject-matter jurisdiction is problematic—“the [C]ourt does not abuse its

discretion by turning directly to personal jurisdiction.” See id., at 588 (emphasis
added).
B. Personal Jurisdiction is more “Straightforward”
“[I]n most instances subject-matter jurisdiction will involve no arduous
inquiry.” Id. at 587.

However, if the dispute presents “a difficult and novel”

subject-matter jurisdiction analysis, a court does not abuse its discretion in
addressing a “straightforward” personal jurisdiction inquiry, free from complex
questions of state law. See id. at 588.
In this case, plaintiffs argue an analysis of subject-matter jurisdiction would
neither be difficult or novel, considering parties are non-diverse and defendants’
personal jurisdiction argument is grounded on the concept of “fraudulent
misjoinder.” See, e.g., Davidson v. Bristol-Myers Squibb Co., No. 12-58-GPM,
2012 WL 1253165, at *3 (S.D. Ill. Apr. 13, 2012) (stating neither Seventh Circuit
or U.S. Supreme Court had occasion to pass on doctrine of fraudulent
misjoinder).

In contrast, plaintiffs contend a personal jurisdiction inquiry is

much more complex, requiring a pervasive legal and factual investigation into
defendants’ business contacts and activities relating to Illinois.
On the other hand, defendants argue several courts that utilized the BMS
holding have conclusively held personal jurisdiction—instead of subject-matter
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jurisdiction—is the “more straightforward inquiry.” See Jinright v. Johnson &

Johnson, No. 14:17-CV-01849 ERW, 2017 WL 3731317 (E.D. Mo. Aug. 30,
2017); Covington v. Janssen Pharm., Inc., No. 4:17-CV-1588 SNLJ, 2017 WL
3433611 (E.D. Mo. Aug. 10, 2017); Gallardo v. Johnson & Johnson, No. 4:17-CV1601 SNLJ, 2017 WL 3128911 (E.D. Mo. July 24, 2017) (explaining court chose
to address personal jurisdiction before subject matter jurisdiction because
personal jurisdiction was much easier to decide); Jordan v. Bayer Corp., No.
4:17-CV-865 CEJ, 2017 WL 3006993 (E.D. Mo. July 14, 2017); Siegfried v.

Boehringer Ingelheim Pharm., Inc., No. 4:16-CV-1942 CDP, 2017 WL 2778107
(E.D. Mo. June 27, 2017).
Based on the above recent legal decisions combined with lack of “unyielding
jurisdictional hierarchy,” interests of judicial economy, and weight of the
precautionary effect on ruling on an issue that could regress and bind the state
court, see Ruhrgas AG, at 587, t he Court finds that in this matter personal

jurisdiction is the more straightforward inquiry —and will analyze same before
addressing challenges to subject-matter jurisdiction.
C. Personal Jurisdiction Analysis
“A federal district court sitting in diversity must apply the personal
jurisdiction rules of the state in which it sits.” Kipp v. Ski Enter. Corp. of Wis.,

Inc., 783 F.3d 695, 697 (7th Cir. 2015). “Personal jurisdiction can be either
general or specific, depending on the extent of the defendant’s contacts with the
forum state.” See uBid, Inc., v. GoDaddy Group, Inc., 623 F.3d 421, 425 (7th Cir.
2010).

Under general personal jurisdiction, the Court “may exercise personal
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jurisdiction over defendants even in cases that do not arise out of and are not
related to the defendant’s forum contacts” when defendants possess “continuous
and systematic” contacts with Illinois—if said contacts exist. See Hyatt Intern.

Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002). As relevant, corporations are
subject to general personal jurisdiction in forums where they are incorporated,
and where their principle place of business is located. See Daimler AG v.

Bauman, 134 S. Ct. 746, 754 (2014). Therefore, Illinois does not have general
personal jurisdiction over defendants in this matter because no defendant is
incorporated in Illinois, nor has its principle place of business in Illinois.
In exercising specific personal jurisdiction, defendants’ contacts with
Illinois must be directly related to the challenged conduct. See N. Grain Mktg.,

LLC v. Greving, 743 F.3d 487, 492 (7th Cir. 2014) (citing Tamburo v. Dworkin,
601 F.3d 693, 702 (7th Cir. 2010). 3

Federal courts in Illinois may exercise

specific personal jurisdiction over defendants under Illinois’ Long-Arm statue
because Illinois permits personal jurisdiction authorized by either the Illinois
Constitution or the United States Constitution. See uBID, Inc., at 425 (explaining
state statutory and federal constitutional requirements merge); see also 735 ILCS
5/2-209.
Plaintiffs’ argue both Illinois state court and this Court—under diversity
jurisdiction—have specific personal jurisdiction over resident and non-resident

See Tamburo, at 702 (explaining specific personal jurisdiction is appropriate where defendant
purposefully directed activities at forum state or purposefully availed privilege of conducting
business in that state and alleged injury arises out of defendant’s forum-related activities).

3

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plaintiff claims. Cf. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d
773, 783 (7th Cir. 2003) (“plaintiff bears the burden of demonstrating the
existence of jurisdiction.”).

Plaintiffs allege defendants purposefully targeted

Illinois as the location for multiple clinical trials which formed the foundation for
defendants’ Xarelto Food and Drug Administration application.

Furthermore,

plaintiffs rationalize pharmaceutical clinical testing within Illinois has previously
been recognized by other courts as a basis for granting personal jurisdiction over
non-Illinois plaintiffs’ claims.
While defendants agree this Court possesses personal jurisdiction over
plaintiff BeRousse—who alleged she was injured by Xarelto in Illinois—defendants
wholly dispute plaintiffs’ notion that this Court maintains personal jurisdiction
over the non-Illinois plaintiffs’ claims; which involved no harm in Illinois and no
harm to Illinois residents. It is undisputed that the non-Illinois plaintiffs do not
claim injuries from ingesting Xarelto in Illinois, and all conduct giving rise to the
non-Illinois plaintiffs’ claims occurred elsewhere.
The instant matter is analogous to BMS where the United States Supreme
Court held that California state courts do not retain specific personal jurisdiction
over non-resident defendant pharmaceutical companies, for non-resident plaintiff
claims not arising out of or relating to defendant’s contacts with California. See

BMS, at 1780-1783.

Similar to BMS, this Court lacks general personal

jurisdiction over defendants, see Daimler AG, at 754; likewise, this Court lacks
specific personal jurisdiction over defendants regarding the non-Illinois

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plaintiffs’ claims. See BMS, at 1781 (stating in order for court to exercise specific
jurisdiction over claim there must be an affiliation between forum and underlying
controversy, “principally, [an] activity or occurrence that takes place in the forum
State.”).
D. 12(b)(2) Motion to Dismiss Regarding Non-Illinois Plaintiffs
When personal jurisdiction is challenged pursuant to FED. R. CIV. P.
12(b)(2), plaintiffs bear the burden of establishing personal jurisdiction over
defendants. See N. Grain Mktg., at 491 (citing Purdue Research Found., at 773).
If the issue of personal jurisdiction is raised by a motion to dismiss, and decided
on written material rather than an evidentiary hearing, plaintiffs need only make a
prima facie showing of jurisdictional facts. Id. The Court must take as true all
well-pleaded facts alleged and resolve any factual disputes in favor of the plaintiff.

See Tamburo, at 700.
Here, the non-Illinois plaintiffs failed to allege ingestion of Xarelto in
Illinois, or suffered from injuries caused by Xarelto in Illinois. Rather, the nonIllinois plaintiffs allege ingestion of Xarelto at some point, at some unknown
location; and further allege Xarelto is defectively designed, inadequately tested,
dangerous to human health, and lacked proper warnings. Under these facts—in
regard to the non-Illinois plaintiffs’ allegations—there is no connection between
Illinois and the underlying Xarelto controversy, which in itself is unconnected to
Illinois but for plaintiff BeRousse.

See id. (citing to Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 927 (2011); Int’l Shoe Co. v. State of
Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 318 (1945)
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and explaining defendants’ general connections with forum are not enough; a
corporation’s continuous activity of some sort within a state is not enough to
support demand that corporation be amenable to lawsuits unrelated to specified
activity); cf. Siegfried, at *4. 4 As a result, the non-Illinois plaintiffs’ claims do not
arise out of defendants’ contacts with the state of Illinois, and moreover, this
Court lacks specific personal jurisdiction over the non-Illinois plaintiffs’
claims.
IV. CONCLUSION
Based on the foregoing, the Court DENIES plaintiffs’ motion to remand
(Doc. 12) and GRANTS defendants’ motion to Dismiss for lack of personal
jurisdiction (Doc. 21).

The Court DISMISSES without prejudice for lack of

personal jurisdiction the following non-Illinois plaintiffs, Marvin Redford, Paul
Ley, Robert Kelley, Tammy Jones, Leisa Oxford, Rosemarie Burke, Michael
Tubbs, Linda Overstreet, Carol Hathaway, John Lovier, Beverly Lewis, Delores
Williams, Robert Poole, Linda Jones, Billie Godwin, Alice Leacraft, Marianne
Matuczinski,

Gerald

Cummings,

Bonnie

Stout,

Gweldon

Lewis,

Charles

Hinchman, John Jacoby, Ronnie Hearns, Carlos Anderson, Jeff Beaumont,
Yakisha Brown-Bell, Shirely Green, Robert Lantz, Beverly Lively, Lorene Engle,
Ricco Stough, and Lewis Bivens.

The Court RETAINS jurisdiction over

4

“Plaintiffs here assert that this court has specific jurisdiction over all defendants for all plaintiff’s
claims. They argue that defendants’ tortious conduct gave rise to this cause of action as a whole
and defendants’ contacts with Missouri constitute part of the same series of transactions for all
plaintiffs. These contacts with Missouri include marketing, promoting, and selling Pradaxa in the
state. It is undisputed that the same marketing and promotional activities took place throughout
the United States. The non-Missouri plaintiffs, however, were not prescribed Pradaxa here, nor
did they purchase the drug, suffer any injury, or receive treatment in Missouri.”

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defendants regarding Illinois plaintiff BeRousse’s claims.

Lastly, the Court

DENIES the motion to stay (Doc. 24).
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.09.26
14:46:44 -05'00'
UNITED STATES DISTRICT JUDGE

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