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

Filing 30

ORDER, denying 11 Motion to Remand to State Court; granting in part 14 MOTION to Dismiss for Lack of Personal Jurisdiction; denying 16 Motion to Dismiss for Insufficient Service of Process; and denying 18 MOTION to Stay. Based on the foregoin g, plaintiffs' Motion to Remand (Doc. 11) is DENIED. Janssen defendants' Motion to Dismiss (Doc. 14) is GRANTED IN PART; non-Illinois plaintiffs Schultz, Nolta, and Barnes's claims are DISMISSED WITHOUT PREJUDICE for lack of personal j urisdiction, and the Court RETAINS jurisdiction over defendants regarding Illinois plaintiff Bandy's claims. Bayer defendants' Motion to Dismiss for Insufficient Service (Doc. 16) is DENIED, and Joinder to Janssen defendants' Motion to Dismiss is GRANTED. Further, defendants' Motion to Stay Proceedings (Doc. 18) is DENIED. Signed by Judge David R. Herndon on 9/22/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCIS BANDY,
BARRY SCHULTZ,
ADENNIA NOLTA, and
LAWRENCE BARNES
Plaintiffs,
v.

No. 17-cv-00753-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’ Second Motion to Remand, or in the
alternative, Shorten the Briefing Schedule (Doc. 11); defendants’ Motion to
Dismiss for Lack of Personal Jurisdiction (Doc. 14), and Motion to Dismiss for
Insufficient Service of Process (Doc. 16). Based on the following, the Motion to
Remand (Doc. 11) is DENIED; Motion to Dismiss for Lack of Personal
Jurisdiction (Doc. 14) is GRANTED IN PART; and, Motion to Dismiss for
Insufficient Service (Doc. 16) is DENIED.

Page 1 of 17

Further, defendants’ Motion for

Joinder (Doc. 16) is GRANTED; and defendants’ Motion to Stay Proceedings
(Doc. 18) is DENIED .
I. BACKGROUND
A. Notice of Removal/Complaint
On July 19, 2017, defendants filed a Second Notice of Removal (Doc. 1)
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, removing the above-styled action
from the Circuit Court of Madison County, Illinois 1 (Id.). Specifically, defendants
argued they are not subject to personal jurisdiction in Illinois based on claims of
the non-Illinois plaintiffs, 2 who were embedded in the lawsuit explicitly to destroy
diversity jurisdiction (Id.). As a result, defendants insist dismissal of non-Illinois
plaintiffs’ claims for lack of personal jurisdiction—leaving Illinois plaintiff Francis
Bandy (“Bandy”) 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 3 (Id. at 2). Put differently, defendants argue BMS indisputably

1

Plaintiffs’ Complaint was filed on March 16, 2017, in the Madison County, Illinois Circuit Court
seeking damages for injuries sustained as a result of ingesting the pharmaceutical drug Xarelto
(rivaroxaban) (Doc. 1-1).
2

Plaintiff Barry Schultz and Lawrence Barnes are citizens of New Jersey and Plaintiff F.B., by her
next friend, Adennia Nolta, is a citizen of Louisiana
On April 28, 2017, defendants filed a First Notice of Removal regarding the instant claims. See
Notice of Removal, Bandy et al. v. Janssen Research & Dev., LLC et al, No. 17-cv-00440-DRH (S.D.
Ill. Apr. 28, 2017) (Doc. 1). On June 9, 2017, the Court granted plaintiffs’ motion to remand
(Doc. 25). 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
3

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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 Bandy (Id.). Defendants now argue
“re-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 4 (Id.).
Under this rationale dismissal of non-Illinois plaintiffs creates complete diversity
between Bandy and defendants (Id.). Further, defendants maintain the ruling in

BMS amounts to an “order” or “other paper” pursuant to § 1446(b)(3), which
activates a new 30-day time clock, thus negating any counterargument regarding
violation of the statute of limitations for removal (Id.).
B. Plaintiffs’ Motion to Remand
In reaction, plaintiffs’ filed the instant Second Motion to Remand, or in the
alternative, Shorten the Briefing Schedule (Doc. 11). Plaintiffs argue defendants’
Notice of Removal is untimely, considering no qualifying event occurred within 30days prior to filing which would initiate the 30-day removal window (Id.)
Moreover, plaintiffs contend grounds for removal fail due to lack of personal

State”) (internal quotation marks and brackets omitted). As a result of Supreme Court
clarification on the specific jurisdiction issue, defendants filed the Second Notice of Removal (Doc.
1) at issue.
Defendants also direct the Court to an analogous case, see Jordan v. Bayer Corp., 2017 WL
3006993 (E.D. Mo. July 14, 2017), where the district court concluded it was more efficient to
inquire into the straightforward question of personal jurisdiction before subject-matter
jurisdiction based on the holding in BMS; and subsequently dismissed claims of non-resident
plaintiffs for lack of personal jurisdiction.
4

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jurisdiction, and respectfully request the Court remand the case to the Third
Judicial Circuit, Madison County, IL (Id.).
On July 26, 2017, this Court entered an order directing defendants’
response to focus on “whether the Court, assuming it does not have subject
matter jurisdiction, has the authority to rule on the question of personal
jurisdiction” (Doc. 13). In response defendants explain, inter alia, under Ruhrgas

AG, there is no hierarchy regarding district court inquiry into jurisdiction; and,
circumstances exist—such as overriding concerns of judicial economy and
restraint—where priority should be given to personal jurisdiction over subjectmatter jurisdiction 5 (Doc. 20 ).
C. Defendants’ 12(b)(2) Motion to Dismiss
Subsequently, defendants Janssen Research & Development, LLC, Janssen
Pharmaceuticals,

Inc.,

and

Janssen

Ortho

LLC

(“Janssen

defendants”),

exclusively, filed a Motion to Dismiss claims of non-Illinois plaintiffs for lack of
personal jurisdiction 6 (Doc. 14).

The argument was identical to defendants’

above-mentioned response: plaintiff Bandy is a citizen of Illinois; remaining
plaintiffs Schultz, Nolta, and Barnes are not citizens of Illinois; and, were not
prescribed Xarelto in Illinois, did not use Xarelto in Illinois, were not injured in
5

Defendants also reiterated the argument on district court authority to address issues of personal
jurisdiction before determining subject-matter jurisdiction pursuant to BMS; and further provided
the following three reasons why the Court cannot establish personal jurisdiction over defendants
regarding non-Illinois plaintiff claims: (1) non-Illinois plaintiffs’ claims have no connection to
Illinois; (2) no defendants are incorporated or headquartered in Illinois; and (3) non-Illinois
plaintiffs have not alleged any defendant conduct in Illinois related to alleged injuries (Doc. 20 at
2).
6

Defendant’s Motion to Dismiss was filed pursuant to FED. R. CIV. P. 12(b)(2) (Doc. 14).

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Illinois, and moreover, asserted no claims arising out of defendants’ conduct in
Illinois 7 (Doc. 15).
D. Insufficient Service of Process/Joinder
Simultaneously, defendants Bayer HealthCare Pharmaceuticals Inc., Bayer
Corporation, and Bayer HealthCare LLC (“Bayer defendants”), exclusively, filed a
Motion to Dismiss for Insufficient Service of Process and Joinder to Motion to
Dismiss based on lack of Personal Jurisdiction (Doc. 16). 8

Bayer defendants

allege that on March 31, 2017, they were served with three copies of plaintiffs’
Amended Complaint without summonses9; further argue improper service; and as
a result, maintain the Court never obtained jurisdiction over Bayer defendants
regarding plaintiffs’ claims (Id.).

Additionally, Bayer defendants contend

plaintiffs’ lack of reasonable diligence in effecting service is grounds for dismissal
from suit (Id. at 4), request dismissal of all claims related to same, and join and
adopt the Janssen defendants’ Motion to Dismiss based on lack of Personal
Jurisdiction (Id. at 5).
In response, plaintiffs characterize defendants’ improper service argument
as meritless (Doc. 23 at 8-9).

Plaintiffs point out: (1) defendants’ agent was

properly served on March 29, 2017 (Doc. 23, 23-1); (2) defendants suffered no
7

In response, plaintiffs rehashed their argument stating, inter alia, “[t]his Court lacks subject
matter jurisdiction for the reasons Plaintiffs explained in their remand motions and supporting
memoranda … . This Court should therefore remand this action for the same reasons it did the
first time Defendants removed it” (Doc. 23 at 4).
8

Bayer defendants’ Motion to Dismiss for Insufficient Service and Joinder to Janssen defendant’s
Motion to Dismiss was filed pursuant to FED. R. CIV. P. 12(b)(2),(4), and (5).
9

Bayer defendants alleged the copies of the Amended Complaint were served on “Corporation
Service Company” in Illinois, and no summons was attached (Doc. 16).

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prejudice; and (3) the lack of diligence argument in failing to properly serve did
not mesh with the fact that parties have been engaged in lengthy federal court
motions practice (Doc. 23 at 9-10). Plaintiffs request denial of defendants’ Motion
to Dismiss for Insufficient Service, and further insist the Court remand the action
to state court (Id.).
II. ISSUES PRESNTED
The Court shall determine: (1) whether precedence should be given to
personal jurisdiction over subject-matter jurisdiction in ruling on plaintiffs’
Motion to Remand; (2) whether the Court possesses personal jurisdiction over
defendants; and if claims remain, (3) whether defendants’ Notice of Removal is
untimely under section 1446; and, (4) whether plaintiffs’ claims should be
dismissed for insufficient service of process regarding Bayer defendants.
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
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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 . . .
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.

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In this case, plaintiffs argue a subject-matter jurisdiction analysis would
neither be difficult nor 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
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).

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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 the 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

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.

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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). 10

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
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 plaintiff’s claims.

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).
10

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While defendants agree this Court possesses personal jurisdiction over
plaintiff Bandy—who alleged she was injured by Xarelto in Illinois—defendants
wholly dispute plaintiffs’ notion that this Court maintains personal jurisdiction
over all other non-Illinois plaintiff’s claims; which involved no harm in Illinois and
no harm to Illinois residents. It is undisputed that non-Illinois plaintiffs do not
claim injuries from ingesting Xarelto in Illinois, and all conduct giving rise to nonIllinois plaintiffs’ claims occurred in other states.
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

non-Illinois

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
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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, three out of four plaintiffs failed to allege ingestion of Xarelto in
Illinois, or suffered from injuries caused by Xarelto in Illinois.

Rather, non-

Illinois plaintiffs Schultz, Nolta, and Barnes 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 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 Bandy. 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) 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. 11 As a result, non-Illinois plaintiffs’ claims
do not arise out of defendants’ contacts with the state of Illinois, and moreover,

11

“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.”

Page 12 of 17

this Court lacks specific personal jurisdiction over those non-Illinois
plaintiffs’ claims.
Therefore, defendants’ Motion to Dismiss non-Illinois plaintiff claims
pursuant to FED. R. CIV. P. 12(b)(2) is GRANTED IN PART. Non-Illinois plaintiffs
Schultz, Nolta, and Barnes’s claims are DISMISSED WITHOUT PREJUDICE;
and the Court retains personal jurisdiction over claims made by Illinois plaintiff
Francis Bandy.
E. Defendants’ Removal is Timely
As a separate and alternative basis for remand, plaintiffs argue defendants’
Second Notice of Removal is untimely under section 1446(b)(3).

Section

1446(b)(3) states
Except as provided in subjection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within 30
days after receipt by the defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which is or has
become removable.
(emphasis added).

Plaintiffs filed their Complaint in Madison County Circuit

Court on March 16, 2017. Defendants filed a Second Notice of Removal on July
19, 2017 after the Supreme Court’s June 19, 2017 ruling in BMS. See BMS, at
1173. Plaintiffs erroneously contend defendant’s July 19th filing violates section
1446(b)(3)’s 30-day time limit for removal because the BMS order does not
qualify as “an amended pleading, motion, order or other paper.” See § 1446(b)(3).
In support, plaintiffs point to Wisconsin v. Amgen, Inc., 516 F.3d 530, 533-34
(7th Cir. 2008) in a feeble attempt to persuade the Court that pleadings and
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orders filed in other suits, not related to the removed case, do not qualify as
“order[s] or other paper[s]” as described in section 1446(b). See id. (explaining
district court remand was proper where complaint in federal court was filed
because it was related to different pending federal suit filed years later in different
federal court).
Conversely, defendants contend the BMS order qualifies as an “order or
other paper from which it may first be ascertained that the case is one which is or
has become removable.” See § 1446(b).

Correctly, defendants attest BMS

conclusively established the Due Process Clause prohibits non-Illinois plaintiffs
from filing claims against defendants in Illinois state courts. See BMS, at 1776.
The Court agrees with defendants and finds plaintiffs’ argument unfounded.
When a “different case resolve[s] a legal uncertainty concerning the existence of
original federal jurisdiction[,]” removal is allowed on that basis. See Amgen, Inc.,
at 534.
F. Insufficient Service Argument Fails
Where attempts at service occur before a case is removed, state law service
of process rules govern. 12 See Cardenas v. City of Chi., 646 F.3d 1001, 1005 (7th
Cir. 2011). Under Illinois law, the clerk issues summonses upon request of the
plaintiff; the form and substance of the summons and service of copies of
pleadings are dictated by the Illinois Supreme Court Rules. See 735 ILCS 5/2-201.
Rule 101 provides, inter alia, that summonses shall be directed to each
12

Service requirements provide notice to parties, encourage diligent pursuit of adjudication, and
initiate a court’s exercise of jurisdiction over defendants. See Henderson v. United States, 517 U.S.
654, 672 (1996) (explaining core function of service is to supply notice of pendency of legal action
to afford defendant fair opportunity to answer complaint and present defenses and objections).

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defendant 13; see ILCS S. Ct. Rule 101(a), while Rule 102 requires the summons—
together with copies of the complaint—to be placed for service with a person
authorized to serve process. See ILCS S. Ct. Rule 102(a).

Finally, Rule 104

declares that every summons served upon a party shall have a copy of the
complaint attached; and is also unequivocally clear in declaring that failure to

deliver or serve copies as required has no impact on the jurisdiction of the court
over any party. See ILCS S. Ct Rules 104(a), (d). 14
Bayer defendants allege that they were served with three copies of plaintiffs’
Complaint—without summonses attached. As a result, they argue that pursuant
to Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999), a
non-properly served defendant is out of the Court’s jurisdictional boundaries. 15
Plaintiffs’ account of events differs; as plaintiffs allege Bayer defendants’ registered
agent was undoubtedly served, and further has submitted a declaration in
support of proper service. 16

13

Effective August 16, 2017, Rule 101 was amended; changes only pertain to subsection (e)
Summons in Cases under the Illinois Marriage and Dissolution of Marriage Act, and therefore do
not affect the instant matter.
14

“Failure to deliver or serve copies as required by this rule does not in any way impair the
jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy
from the clerk and the court shall order the offending party to reimburse the aggrieved party for
the expense thereof.” ILCS S.Ct. Rule 104(d).
15

Defendants state, “[i]f a Defendant is not properly served with a summons and complaint, then
the court never obtains jurisdiction over a Defendant for Plaintiff’s claims.”
16

Plaintiff’s offer Declaration of John “JJ” Driscoll, V., who declared that on March 29, 2017 he
served a summons and complaint by leaving copies of the summons and complaint for each Bayer
defendant with the registered agent of Bayer defendants, Illinois Corporation Service Company,
801 Adlai Stevenson Drive, Springfield , IL 62703, in the following matters: Douthit, et al. v.
Janssen Research & Development, LLC, et al., No. 17-L-372; Bandy, et al. v. Janssen Research &
Development, LLC. et al., No. 17-L-373; Woodall, et al. v. Janssen Research & Development, LLC,

Page 15 of 17

Be that as it may, the fact remains “technical noncompliance with the
requirement of serving copies on all parties who have appeared and have not been
defaulted does not result in a loss of jurisdiction[.]” See In re Estate of Gustafson,
268 Ill. App. 3d 404, 408, 644 N.E.2d 813, 816 (1994). Under the facts of this
case, Bayer defendants’ procedural due process rights were not violated.

See,

e.g., Matter of Am. Mut. Ins. Co., 238 Ill. App. 3d 1, 11, 606 N.E.2d 32, 39 (1992)
(explaining based on Rule 104(d), determining factor is not absence of notice but
whether there was any harm or prejudice to nonmoving party). “At a minimum,
procedural due process requires notice, an opportunity to respond, and a
meaningful opportunity to be heard.” Gold Realty Grp. Corp. v. Kismet Cafe, Inc.,
358 Ill. App. 3d 675, 681, 832 N.E.2d 403, 407-08 (2005).
Here, Bayer defendants received notice of being sued—as evidenced by
Bayer defendants’ removal of this action to federal court; and were given an
opportunity to respond and be heard—as evidenced by Bayer defendants’ instant
Motion to Dismiss for Insufficient Service of Process and Joinder to Motion to
Dismiss based on Lack of Personal Jurisdiction.

Bayer defendants were not

prejudiced, even if they did not receive a copy of a summons attached to plaintiffs’
complaint prior to removal; and none of their procedural due process rights were
violated. 17 Therefore Bayer defendants’ Motion to Dismiss for Insufficient Service

et al., No. 17-L-126; Pirtle et al. v. Janssen Research & Development, LLC, et al., No. 17-L-127;
and Braun, et al. v. Janssen Research & Development, LLC, et al., No. 17-L-128.
17

The additional “reasonable diligence” argument is foreclosed due to lack of prejudice and no
violation of due process, as Bayer defendants consented to being aware of the instant action and
continued to litigate.

Page 16 of 17

of Process is DENIED; Bayer defendants’ Joinder to Janssen defendant’s 12(b)(2)
Motion to Dismiss is GRANTED.
IV. CONCLUSION
Based on the foregoing, plaintiffs’ Motion to Remand (Doc. 11) is DENIED.
Janssen defendants’ Motion to Dismiss (Doc. 14) is GRANTED IN PART; nonIllinois plaintiffs Schultz, Nolta, and Barnes’s claims are DISMISSED
WITHOUT PREJUDICE for lack of personal jurisdiction, and the Court
RETAINS jurisdiction over defendants regarding Illinois plaintiff Bandy’s claims.
Bayer defendants’ Motion to Dismiss for Insufficient Service (Doc. 16) is DENIED,
and Joinder to Janssen defendants’ Motion to Dismiss is GRANTED. Further,
defendants’ Motion to Stay Proceedings (Doc. 18) is DENIED.
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.09.22
16:44:04 -05'00'
United States District Judge

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