Fenner et al v. Wyeth et al
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff's renewed motion to remand [# 143 ] is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri, from which it was removed. Signed by District Judge Catherine D. Perry on 12/11/2012. (Order sent to Clerk, 22nd Judicial District of Missouri this date via U.S. Mail.) (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
WYETH, et al.,
Case No. 4:05-CV-1101 CDP
MEMORANDUM AND ORDER
This action is before me on plaintiff Antonia Fenner’s renewed motion to
remand. I find remand is warranted because complete diversity did not exist at the
time of filing, and defendants have failed to meet their burden of showing plaintiffs
were fraudulently misjoined in order to defeat federal jurisdiction.
In 2005, twenty-five plaintiffs from multiple states sued various drugmakers
and retailers for injuries stemming from hormone replacement therapy (HRT)
drugs the defendants allegedly produced, marketed, or sold. Plaintiffs brought
their claims, all grounded in state law, as a single action in Missouri state court.
Though defendants acknowledged complete diversity was lacking on the face of
the complaint, they removed to this court, arguing plaintiffs had engaged in two
types of fraudulent joinder solely to defeat federal jurisdiction. Plaintiffs moved to
remand, but before this court could rule, the case was transferred to the Hon.
William R. Wilson Jr. of the Eastern District of Arkansas, by order of the Judicial
Panel on Multidistrict Litigation. Plaintiffs opposed transfer, but the JPML
rejected their arguments.
In compliance with a standing order of the MDL court, plaintiffs refiled their
remand motion, and defendants opposed. On March 1, 2006, after oral arguments,
the MDL court denied remand. It held that plaintiffs had been “misjoined” in
violation of the Missouri state joinder statute, which permits plaintiffs to join their
claims into a single action only if they (1) arise out of the same transaction or
occurrence or (2) present a common question of law or fact. Mo. Sup. Ct. R.
52.05. See also State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo. banc
1979) (“Our joinder rule, 52.05[,] was adopted from the federal rule governing
joinder, Fed. R. Civ. P. 20.”). The MDL court found that:
The only thing common among Plaintiffs is that they took an HRT drug
– but not even the same HRT drug. Plaintiffs are residents of different
states and were prescribed different HRT drugs from different doctors,
for different lengths of time, in different amounts, and suffered different
injuries. In light of this, Plaintiffs are not properly joined under Rule 20.
“To simply group the plaintiffs by judicial district or to simply group
them primarily for filing convenience, [does] not satisfy the terms
required in Rule 20 nor the purpose” of Rule 20. Additionally, I can see
no reason for the joinder of the non-diverse plaintiffs other than to
destroy diversity jurisdiction.
Order in MDL 1507, 4:05-CV-1886 [Doc. #89] (E.D. Ark. March 1, 2006), p. 2
(footnotes omitted) [hereinafter “2006 Order”].
In the same order, the court dismissed several defendants1 “because no plaintiff
has alleged a specific cause of action against them.” In addition, the court dropped
seven non-diverse plaintiffs from the case, giving them 30 days to file new civil
actions. In a footnote, the court wrote:
Although I believe that most, if not all, of the other plaintiffs in this case
are misjoined, I am only concerned with those plaintiffs who destroy
diversity jurisdiction. Whether the diverse plaintiffs are properly joined
is an issue for the Missouri transferor court to address after this case is
remanded by the Judicial Panel on Multidistrict Litigation.
Finally, the MDL court ordered the remaining plaintiffs to amend their complaint
to include “allegations specifying which drugs each plaintiff took and, specifically,
which of the defendants she is alleging a cause of action against.” The remaining
plaintiffs did not appeal the ruling, but rather, amended their complaint to adhere to
Nearly four years after the 2006 Order, the Eighth Circuit decided In re
Prempro Products Liability Litigation, 591 F.3d 613 (8th Cir. 2010) (known as
Kirkland). In Kirkland, the Eighth Circuit considered three multi-plaintiff, multidefendant lawsuits that were each a part of the same HRT drug MDL as the instant
case. The three lawsuits shared a procedural posture: they were filed in Minnesota
state court, removed on grounds that non-diverse plaintiffs were fraudulently
One of those defendants was Medicine Shoppe International, whose joinder defendants
had considered fraudulent and which they had argued provided a separate basis for removal. See
infra note 7.
misjoined, and transferred by the JPML to the MDL court. After it denied
remand,2 the Kirkland plaintiffs appealed to the Eighth Circuit.
In Kirkland, the Eighth Circuit declined to decide whether it would
recognize “fraudulent misjoinder” of plaintiffs as an exception to the completediversity requirement, but held that – even if it did – the defendants had not proved
it in that case. The defendants had not presented any evidence the plaintiffs had
joined their claims to avoid diversity jurisdiction and “had not met their burden of
establishing that plaintiffs’ claims are egregiously misjoined.” Id. at 623. The
court suggested the litigation was “likely to contain common questions of law and
fact,” including the causal link between HRT drugs and breast cancer. It
cautioned, though, that it made “no judgment on whether the plaintiffs’ claims are
properly joined” and suggested defendants address that issue to the state court. Id.
(emphasis in original). Ultimately, the Kirkland court reversed the MDL court’s
orders and remanded the cases to state court. Id. at 624.
In light of the Kirkland decision, plaintiff Fenner3 moved for expedited
reconsideration of the 2006 Order. Four days after Fenner filed her motion, the
The MDL court denied in part the motions to remand, concluding that all the claims,
except those of Minnesota plaintiffs, had been misjoined to defeat diversity jurisdiction. See
Order in MDL 1507 [Doc. #29], 2008 WL 5412901, 4:08-CV-4196 (E.D. Ark. Dec. 29, 2008);
Order in MDL 1507 [Doc. #31], 2009 WL 331313, 4:09-CV-104 (E.D. Ark. Feb. 10, 2009).
Citing Rule 21, the MDL court had dropped all remaining plaintiffs besides Fenner in
an order dated March 4, 2010. See Fed. R. Civ. P. 21 (misjoinder). In that order, he wrote that
“[a]fter reviewing this case, I believe that the Complaint violates my numerous orders on multiplaintiff complaints.” The complaint was amended March 1, 2011 in compliance with the order.
MDL court denied reconsideration.4 It acknowledged that the “legal issues
regarding remand in both this case and Kirkland are similar.” But it held that
Kirkland did not apply because plaintiffs had “already resolved the jurisdictional
issues by amending their complaint.” The court pointed out that, unlike the
Kirkland plaintiffs, the Fenner plaintiffs had not attempted to appeal the order
Plaintiffs could have sought certification of an interlocutory appeal,
under 28 U.S.C. § 1292(b). Rather than choosing to appeal as they did
in Kirkland, Plaintiffs here amended their complaint and removed all
non-diverse Plaintiffs. The Eighth Circuit has held that “if remand is
denied and there is no interlocutory appeal, a judgment may be upheld
if federal jurisdiction exists at the time of judgment.”
Based on the Amended Complaint, complete diversity exists; so,
Plaintiffs’ assertion that this Court lacks jurisdiction is without merit.
Order in MDL 1507 [Doc. #143], 4:05-CV-1886 BRW (E.D. Ark. March 30, 2010)
[hereinafter “2010 Order”].
In May 2012, this case was transferred back to this court by the JPML.
Renewed Motion to Remand
After transfer to this court, plaintiff Fenner filed a renewed motion to
remand to state court. She argues that the Kirkland ruling makes clear that the
federal courts never had jurisdiction over this case, which she considers “factually
In her motion “Plaintiff’s Request for Expedited Motion to Reconsider,” Fenner
alternatively requests that “the Court certify these Orders for an interlocutory appeal pursuant to
Rule 54(b).” The MDL court’s order denying reconsideration, which I will refer to as the “2010
Order,” does not address Fenner’s request for alternative relief.
identical” to the Kirkland cases. (Pl.’s Renewed Mtn. to Remand, p. 7.) If that is
true, she contends, all of the federal courts’ rulings are “nullities.” (Id., p. 4.)
Fenner concedes that there is no jurisdictional defect now, but argues that diversity
“at the time of filing” should be this court’s sole consideration.
Defendants oppose plaintiff’s motion, arguing first Kirkland’s holding was
limited to the record in that case and does not prevent the MDL court from denying
remand in this case on fraudulent misjoinder grounds. They also argue that,
regardless of their substance, the MDL court’s rulings are the “law of the case” and
must be followed. Insofar as I must reconsider whether federal jurisdiction exists,
defendants contend I should look to the current operative complaint, which poses
no bar to diversity jurisdiction, rather than applying the “time-of-filing rule.”
Defendants argue that this case falls under two exceptions to that rule: (1) plaintiffs
who fraudulently join parties to defeat diversity jurisdiction are not entitled to rely
upon the time-of-filing rule and (2) the time-of-filing rule does not apply when the
jurisdictional defect has since been cured.
I find that the law-of-the-case doctrine does not apply to the MDL court’s
rulings, and I must reconsider whether the federal courts ever had subject matter
jurisdiction. I also find that the exceptions to the time-of-filing rule do not apply.
Complete diversity was lacking at the time of removal, so remand to state court is
The Law-of-the-Case Doctrine Does Not Apply to Interlocutory Orders
The law-of-the-case doctrine is “a means to prevent the relitigation of a
settled issue in a case.” Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827, 830
(8th Cir. 2008). It “requires courts to adhere to decisions made in earlier
proceedings in order to ensure uniformity of decisions, protect the expectations of
the parties, and promote judicial economy.” Id. But the doctrine encompasses
only final rulings and “does not apply to interlocutory orders.” Id. (citing First
Union Nat’l Bank v. Pictet Overseas Trust Corp., Ltd., 477 F.3d 616, 620 (8th Cir.
The 2006 and 2010 Orders are interlocutory, so the law-of-the-case doctrine
does not apply. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996) (alone, order
denying remand motion “is obviously not final”) (ellipses omitted). Interlocutory
orders “can always be reconsidered and modified by a district court prior to entry
of a final judgment.” Pictet, 477 F.3d at 620. See also Bullock v. Baptist Mem.
Hosp., 817 F.2d 58, 59 (8th Cir. 1987) (order dismissing complaint against some
but not all defendants not final order); Lovett v. Gen. Motors Corp., 975 F.2d 518,
522 (8th Cir. 1992) (same for denial of motion to dismiss, which is not subject to
law-of-the-case doctrine); United States v. Hively, 437 F.3d 752, 766 (8th Cir.
2006) (severance order was interlocutory and did not become law of the case);
Knudson v. Systems Painters, Inc., 634 F.3d 968, 977 (8th Cir. 2011) (state court
order dismissing non-diverse defendant was interlocutory).
Though the law-of-the-case doctrine does not apply directly, I recognize that
considerations of comity and judicial economy weigh against disturbing the MDL
court’s rulings. See, e.g., Winter v. Novartis Pharm. Corp., No. 4:06-CV-4049
ERW, 2011 WL 5008008, at *2 (E.D. Mo. Oct. 20, 2011) (citing Manual for
Complex Litigation, § 20.133 (4th ed. 2004)). Nonetheless, I cannot abdicate my
continuous responsibility to ensure subject matter jurisdiction exists. Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) (there is an “age-old rule
that a court may not in any case, even in the interest of justice, extend its
jurisdiction where none exists”).
Time-of-Filing Rule Must Be Applied
A party who has removed a case bears the burden of establishing federal
subject matter jurisdiction. In re Business Men’s Assur. Co. of America, 992 F.2d
181, 183 (8th Cir. 1993) (per curiam). Any doubts about federal jurisdiction must
be resolved in favor of remand. Id. Under 28 U.S.C. 1447(c), when a case is
removed improperly due to a lack of subject matter jurisdiction, remand may
occur at any stage of the proceedings. Wisc. Dep’t of Corr. v. Schacht, 524 U.S.
381, 392 (1988). No matter when a challenge to subject matter jurisdiction occurs,
“whether the challenge be brought shortly after filing, after the trial, or even for the
first time on appeal,” the court must examine whether the jurisdictional
requirements were met at the time of filing. Grupo Dataflux v. Atlas Global
Group, L.P., 541 U.S. 567, 571 (2004); OnePoint Solutions, LLC v. Borchert, 486
F.3d 342, 346 (8th Cir. 2007).
Under 28 U.S.C. § 1332(a), complete diversity “exists where no defendant
holds citizenship in the same state where any plaintiff holds citizenship.”
Kirkland, 591 F.3d at 620. The original complaint names both plaintiffs and
defendants from at least ten5 different states, so there was no complete diversity,
and hence, no federal jurisdiction at the time of filing. See Iowa Pub. Serv. Co. v.
Medicine Bow Coal Co., 556 F.2d 400, 404 (8th Cir. 1977) (only citizenship of
plaintiff who is not real party in interest may be ignored for purpose of determining
diversity jurisdiction); Ballard v. Wyeth, 4:04-CV-1111 CDP, 2004 WL 5436353
(E.D. Mo. Nov. 8, 2004), at *4–*6 (under Medicine Bow, plaintiffs who allege they
Those states are New Jersey, Arkansas, California, Georgia, Illinois, New York,
Pennsylvania, Alabama, Tennessee, Florida, and possibly Missouri. The citizenship of defendant
Medicine Shoppe International remains obscure. The parties agree it was incorporated in
Delaware, and in their original complaint, plaintiffs listed its principal place of business as
Dublin, Ohio. (Pl.’s Comp., ¶ 39.) They later attached as an exhibit Medicine Shoppe’s 2003
declaration to the Missouri Secretary of State attesting the same. (Pl.’s Mem. in Support of Mtn.
to Remand, p. 4 & Ex. 5.) The MDL court also treated it as an Ohio citizen. (2006 Order, p. 1
(“notably, none of the non-diverse defendants are from Missouri”)). But defendants based their
fraudulent joinder argument on their assertion that Medicine Shoppe was a Missouri citizen
(Defs.’ Opp. to Pl.’s Mtn. to Remand, p. 6 n.7) and plaintiff Fenner calls Medicine Shoppe a
Missouri citizen in the renewed motion to remand currently before me. (Pl.’s Renewed Mtn. to
Remand, p. 6.) In any event, I need not resolve its citizenship now.
were injured by HRT drugs manufactured or sold by defendants were real parties
Essentially, defendants argue that Fenner has somehow waived application
of the time-of-filing rule by (1) fraudulently misjoining parties and (2) complying
with the MDL court’s orders dropping non-diverse plaintiffs and defendants.
Neither argument has merit.
Fraudulent Misjoinder Exception Does Not Apply
First, the Eighth Circuit rejected defendants’ fraudulent misjoinder argument
on its merits in Kirkland, so I cannot resurrect it for jurisdictional purposes. It
would strain common sense to distinguish the 2006 Order at issue from the orders
the Eighth Circuit examined in Kirkland. The underlying claims of the plaintiffs in
both cases were part of the same MDL. Their procedural postures, and the
arguments advanced by the parties in support of and opposition to remand, were
practically identical. The original complaint in each case was equally vague as to
which plaintiffs were proceeding against which defendants.6 The MDL court
Compare Fenner v. Wyeth, Compl. (June 20, 2005) with Kirkland v. Wyeth, Compl.
(July 28, 2008) and Allen v. Wyeth, Compl. (July 28, 2008) (both examined in In re Prempro
Prod. Liab. Litig., 591 F.3d 613 (8th Cir. 2010) (known as Kirkland)). A typical allegation in
the original Fenner complaint gives a year-to-year date range during which a plaintiff took HRT
drugs that the plaintiff alleges were “manufactured, marketed and sold by one or more of the
Drug Defendants and/or Pharmacy Defendants,” then an allegation that the plaintiff was
diagnosed with cancer on a particular date, and that she underwent a particular kind of treatment,
such as a mastectomy. The Kirkland complaints contained similar allegations. Unlike the
Fenner complaint, the Kirkland complaints identified the drugs each plaintiff took, for most –
but not all – plaintiffs. But the Kirkland complaints also alleged that multiple defendants had
manufactured some of those drugs, so it did not necessarily clarify the identity of the
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denied remand in both cases using verbatim language. While Kirkland
intentionally left open the possibility that, in some future circumstance, a defendant
may be able to prove fraudulent misjoinder, this is not it. Defendants have
presented no more evidence of misjoinder that the Kirkland defendants. Given
Kirkland’s clear guidance that this circumstance does not rise to the level of
fraudulent misjoinder, there is likewise no basis for creating a fraudulentmisjoinder exception to the time-of-filing rule.
Defendants cite Hollenback v. Taser Int’l, Inc., 2011 WL 5102402, at *2
(E.D. Mo. Oct. 27, 2011) (citing Junk v. Terminix Int’l Co., 628 F.3d 439, 445 (8th
Cir. 2010)) as support for their contention that fraudulent joinder is a “wellrecognized exception” to the time-of-filing rule. Though this may be true, these
cases involved fraudulent joinder of a defendant, an exception the Eighth Circuit
has explicitly recognized. Junk, 628 F.3d at 445. They do not speak to fraudulent
misjoinder of plaintiffs, the exception that the Eighth Circuit considered in
Kirkland and that remains at issue here. The United States Supreme Court has
signaled that courts ought to avoid endorsing new exceptions to the time-of-filing
rule, Grupo Dataflux, 541 U.S. at 581–82, and I decline to do so here.
defendant(s) as to each claim. Further, the Fenner plaintiffs had amended their complaint to
identify the drugs each plaintiff took by the time the court ruled on the remand motion. (Am.
Compl., Jan. 30, 2006). See Scottsdale Ins. Co. v. Universal Crop Prot. Alliance, Inc., 620 F.3d
926, 931 (8th Cir. 2010) (events after filing and removal cannot retroactively create federal
jurisdiction, but they may “be relevant to prove the existence or nonexistence of diversity
jurisdiction at the time of filing”).
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The Kirkland court suggested that one common question among those
plaintiffs may be the causal link between HRT drugs and breast cancer, a question
also common among the Fenner plaintiffs. But the court reserved judgment on
whether plaintiffs were “properly joined.” Id. Likewise, I see no reason the
Missouri state court will be unable to resolve this issue. In fact, Judge Wilson
commented that he was “puzzled” that defendants had not raised the misjoinder
question in that forum in the first place. (2006 Order, p. 4.)
Cured-Jurisdictional-Defect Exception Does Not Apply
When a jurisdictional defect has been cured through dismissal of a non-
diverse party by the time of final judgment, the court need not apply the time-offiling rule. See Lewis, 519 U.S. at 64; Council Tower Ass’n v. Axis Specialty Ins.
Co., 630 F.3d 725, 730 (8th Cir. 2011).
Even if it were clear that this exception applies when there has been no final
judgment,7 it could not operate to bar remand here. The jurisdictional defect in this
case – the lack of complete diversity – was “cured” only by court orders dropping
the non-diverse parties against the will of the plaintiffs. The Eighth Circuit has
recognized a “voluntary-involuntary” distinction when determining whether
E.g., Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 785
(5th Cir. 2000) (remanding case improperly removed and holding that, in order for jurisdictional
defect to be “cured” under Caterpillar, “the plaintiff must voluntarily amend its complaint, and
there must be a final judgment on the merits”) (emphasis added). See also Caterpillar, 519 U.S.
at 77 (“The procedural requirements for removal remain enforceable by the federal trial court
judges to whom those requirements are directly addressed.”).
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diversity jurisdiction exists. See, e.g., In re Iowa Mfg. Co. of Cedar Rapids, Iowa,
747 F.2d 462, 463–64 (8th Cir. 1984) (recognizing exception and recounting its
long history); Knudson v. Systems Painters, Inc., 634 F.3d 968, 975 (8th Cir.
2011). The distinction constitutes “a bright line test for evaluating removability,”
and holds that an “involuntary dismissal cannot change a previously unremovable
case into a removable case.” In re Iowa Mfg., 747 F.2d at 463.
In Iowa Manufacturing, the court held that a state court order dismissing a
non-diverse defendant, thereby creating complete diversity, did not render the case
removable because the dismissal had been involuntary on the part of the plaintiff.
Cite. Applying Iowa Manufacturing, this court has held:
What is pivotal in such an inquiry is whether or not a voluntary act of the
plaintiff resulted in the dismissal of the non-diverse defendant. When
diversity is created by court order, not by voluntary dismissal of the
non-diverse defendant by the plaintiff, removal is improper.
Power v. Norfolk & W. Ry. Co., 778 F. Supp. 468, 470 (E.D. Mo. 1991). Like Iowa
Manufacturing and Power, the jurisdictional defect here – namely, lack of
complete diversity – was cured by the MDL court’s orders dismissing non-diverse
parties, not a voluntary act by Fenner or other plaintiffs. Though Iowa
Manufacturing concerned a state court order, the problems with court-created
diversity apply even more forcefully at the federal level. Unlike a state court order,
a post-removal federal court order cannot create jurisdiction “at the time of
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removal,” as required by the time-of-filing rule. James Neff Kramper Family Farm
P’ship v. IBP, Inc., 393 F.3d 828, 834 (8th Cir. 2005).
Contrary to defendants’ assertions, the length of time a case has been
litigated in federal court is not an exception to the time-of-filing rule and cannot,
standing alone, confer subject matter jurisdiction where none existed at the time of
filing. See Grupo Dataflux, 541 U.S. at 571, 575 (“Apart from breaking with our
longstanding precedent, holding that ‘finality, efficiency, and judicial economy’
can justify suspension of the time-of-filing rule would create an exception of
indeterminate scope,” and Supreme Court has “adhered to the time-of-filing rule
regardless of the costs it imposes”); Hart v. Terminex Int’l, 336 F.3d 541, 541 (7th
Cir. 2003) (though it was “regrettable” case had spent eight years in federal court,
there was no federal jurisdiction and case had to be remanded); Johnson v. Wyeth,
4:06-CV-286 ERW, 2012 WL 1829868, at *3 (E.D. Mo. May 18, 2012)
(remanding case to state court after it spent six years as part of MDL because there
had been no federal jurisdiction at the time of removal). “The fact that a case
becomes part of a multidistrict proceeding does not . . . broaden this court’s
jurisdiction to hear cases over which it lacks in the first instance subject-matter
jurisdiction.” In re Heparin Prod. Liab. Litig., 1:09-CV-6014, 2012 WL 3758439,
at *1 (N.D. Ohio June 25, 2012).
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IT IS HEREBY ORDERED that plaintiff’s renewed motion to remand
[#143] is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit
Court of the City of St. Louis, State of Missouri, from which it was removed.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 11th day of December, 2012.
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