Townsend et al v. Hoffmann-La Roche Inc. et al

Filing 17

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion to remand is GRANTED. [Doc. #8] IT IS FURTHER ORDERED that Defendants motion to stay is DENIED. [Doc. #10] IT IS FURTHER ORDERED that the Clerk of Court shall take all necessary administrative steps to remand this case to the Circuit Court for the City of St. Louis, Missouri, from which it was removed.. Signed by Honorable Audrey G. Fleissig on 9/1/11. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KELLEN TOWNSEND, et al.,
Plaintiffs,
vs.
HOFFMANN-LA ROCHE, INC, et al.,
Defendants

)
)
)
)
)
)
)
)
)

Case No. 4:11CV01420 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion to remand and request for
expedited consideration, and Defendant’s motion to stay pending transfer of the case by
the Judicial Panel on Multidistrict Litigation to the Accutane Multi-District Litigation.
This products liability suit was brought by 12 named Plaintiffs in the Circuit Court
for the City of St. Louis, Missouri. Plaintiffs allege that they sustained gastrointestinal
injuries as a result of using Accutane, a drug mass-produced and mass-marketed by
Defendants. Defendants are not citizens of Missouri, and there is diversity of citizenship
between them and 11 of the 12 Plaintiffs. The other Plaintiff is a citizen of New Jersey,
which is also the residence of two of the four Defendants.
Defendants removed the case to this Court asserting that the New Jersey Plaintiff
was fraudulently joined for the sole purpose of destroying diversity and defeating federal
jurisdiction. In support of their motion to remand due to lack of complete diversity,
Plaintiffs argue that their claims are properly joined under In re Prempro Products

Liability Litigation, 591 F.3d 613 (8th Cir. 2010). In In re Prempro, multiple plaintiffs
joined in a single suit, asserting claims against multiple pharmaceutical manufacturers for
injuries the plaintiffs alleged resulted from the manufacturers’ negligent design, testing,
and warning of certain drugs. Some of the plaintiffs were citizens of the same state of at
least one of the manufacturers. The defendants removed the case to federal court,
asserting “fraudulent misjoinder” of those plaintiffs.
Fraudulent misjoinder occurs when a plaintiff sues a diverse defendant in
state court and joins a viable claim involving a nondiverse party, or a
resident defendant, even though the plaintiff has no reasonable procedural
basis to join them in one action because the claims bear no relation to each
other. In such cases, some courts have concluded that diversity is not
defeated where the claim that destroys diversity has “no real connection
with the controversy” involving the claims that would qualify for diversity
jurisdiction.
In re Prempro, 591 F.3d at 620 (quoting another source.)1
Though noting that some courts had rejected the theory of fraudulent misjoinder,
the Eighth Circuit declined to rule on that basis, but found that the claims of all plaintiffs,
including the non-diverse plaintiffs were “logically related” within the meaning of Rule
20(a)(1) of the Federal Rules of Civil Procedure, and that even if the doctrine of
fraudulent misjoinder were adopted, the alleged misjoinder was “not so egregious as to
constitute fraudulent misjoinder.” Id. at 622. The Court noted that given the nature of

1

In In re Prempro, the Court distinguished fraudulent misjoinder from
fraudulent joinder, which “occurs when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent removal.” In re Prempro, 591 F.3d at
620.
2

the plaintiffs’ claims, the litigation was likely to contain common questions of law and
fact. Id. at 623.
Defendants acknowledge that based on In re Prempro, several judges in this
district, including the undersigned, have held, in factual scenarios similar to that
presented here, that the plaintiffs were entitled to have their case remanded to state court
due to the lack of complete diversity. See, e.g., Coleman v. Bayer Corp., No.
4:10CV1639 SNLJ; (E.D. Mo. Dec. 10, 2010); Dickerson v. GlaxoSmithKline, LLC., No.
4:CV00972 AGF (E.D. Mo. July 12, 2010); Douglas v. GlaxoSmithKline, LLC, No.
4:10CV971 CDP (E.D. Mo. July 1, 2010).
Defendants ask the Court to break with this line of cases, adopt the doctrine of
fraudulent misjoinder, and hold that the New Jersey Plaintiff was “egregiously
misjoined.” Given the broad definition of proper joinder adopted by the Eighth Circuit in
In re Prempro, this Court feels compelled to find no fraudulent misjoinder here. The
claims of all Plaintiffs are against the same Defendants, related to the same drug, and
there is no dispute that the litigation is likely to contain common questions of law and
fact. Thus the Court concludes that the issue before it is governed by the essential
holding of In re Prempro, namely, that the doctrine of fraudulent misjoinder does not
apply to the joinder of a nondiverse plaintiff who is a real party in interest, where the
litigation is likely to contain common questions of law and fact. The Eighth Circuit
explained in Iowa Public Service Co. v. Medicine Bow Coal Co., 556 F.2d 400 (8th Cir.
1997), as follows:
-3-

[I]f the nondiverse plaintiff is a real party in interest, the fact that his
joinder was motivated by a desire to defeat federal jurisdiction is not
material. . . . If under our dual court system a potential plaintiff has a
choice between a state forum and a federal forum, it is his privilege to
exercise that choice subject to legal limitations, and if he can avoid the
federal forum by the device of properly joining a . . . a nondiverse
co-plaintiff, he is free to do so.
556 F.2d at 404, 406.
Here there is no dispute that the nondiverse Plaintiff is a real party in interest
seeking to recover against Defendants for her own alleged injuries.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion to remand is GRANTED.
[Doc. #8]
IT IS FURTHER ORDERED that Defendants’ motion to stay is DENIED.
[Doc. #10]
IT IS FURTHER ORDERED that the Clerk of Court shall take all necessary
administrative steps to remand this case to the Circuit Court for the City of St. Louis,
Missouri, from which it was removed.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of September, 2011.

-4-