Madderra et al v. Merck, Sharp & Dohme, Corp.

Filing 24

MEMORANDUM AND ORDER re: 8 11 6 ORDERED that Plaintiffs' Motion to Remand and Request for Expedited Consideration (ECF. No. 11) is GRANTED in part, and this case is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. An appropriate Order of Remand will accompany this Order. FURTHER ORDERED that the outstanding motions in this matter (ECF. Nos. 6, 8)are DENIED as moot. Signed by Honorable Jean C. Hamilton on 2/23/12. cc: Circuit Court of the City of St. Louis(CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MELBA MADDERRA, et al.,
Plaintiff(s),
vs.
MERCK SHARPE & DOHME CORP.,
Defendant(s).

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Case No. 4:11CV1673

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand and Request for Expedited
Consideration, filed on September 28, 2011. (ECF No. 11). The matter is fully briefed and ready
for disposition.
BACKGROUND
Plaintiffs filed their Petition in the Circuit Court of the City of St. Louis, State of Missouri,
on August 17, 2011. (Petition (“Complaint”), ECF No. 1-1). In their Complaint, Plaintiffs assert
they were prescribed the drug Fosamax to treat or prevent osteoporosis. (Id., ¶¶ 2-5). Plaintiffs
allege that, as a result of taking Fosamax, they sustained “severe and permanent personal injuries,”
including weakened or brittle bones, stress fractures, and femoral fractures. (Id., ¶ 17). Plaintiffs
bring claims against Defendant, as the marketer, promoter, and seller of Fosamax, for defective
design, failure to warn, negligence, breach of express warranty, breach of implied warranty, negligent
misrepresentation, and fraudulent misrepresentation. (See id., pp. 16-32). Plaintiffs also seek
punitive damages. (See id., ¶¶ 160-175).
Defendant removed this action to this Court on September 26, 2011, despite the lack of
complete diversity on the face of the Complaint. (Notice of Removal, ECF No. 1). In Defendant’s

Notice of Removal, Defendant asserts that diversity jurisdiction exists pursuant to 28 U.S.C. §
1332(a) because the only non-diverse Plaintiff, Ruth Smoody, was fraudulently misjoined as a
Plaintiff. (ECF No. 1, ¶¶ 15-19). Plaintiffs responded by filing a Motion to Remand and Request for
Expedited Consideration on September 28, 2011. (ECF No. 11).
DISCUSSION
“Removal statutes are strictly construed, and any doubts about the propriety of removal are
resolved in favor of state court jurisdiction and remand.” Manning v. Wal-Mart Stores East, Inc.,
304 F.Supp.2d 1146, 1148 (E.D.Mo. 2004) (citing Transit Cas. Co. v. Certain Underwriters at
Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997)). The party invoking federal jurisdiction and
seeking removal has the burden of establishing jurisdiction by a preponderance of the evidence.
Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912
(8th Cir. 2009); see also Nicely v. Wyeth, Inc., 2011 WL 2462060 at *2 (E.D.Mo. Jun. 17, 2011).
A civil action brought in state court may be removed to the proper district court if the district
court has original jurisdiction of the action. 28 U.S.C. § 1441(a). “Federal district courts have
original jurisdiction in all civil actions between citizens of different states if the amount in controversy
exceeds $75,000.00, exclusive of interest and costs.”1 Manning, 304 F.Supp.2d at 1148 (citing 28
U.S.C. § 1332(a)(1)). Actions where jurisdiction is predicated solely on diversity are “removable
only if none of the parties in interest properly joined and served as defendants is a citizen of the State
in which such action is brought.” 28 U.S.C. § 1441(b). As stated above, Defendant asserts that
diversity exists because Moody, the only non-diverse party, was fraudulently misjoined. (ECF No.
1, ¶¶ 15-19).

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There is no dispute in this case that the amount in controversy exceeds $75,000.00.

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Courts have long recognized fraudulent joinder as an exception to the complete diversity rule.
In re Prempro Products Liability Litigation, 591 F.3d 613, 620 (8th Cir. 2010) (citing 14B CHARLES
ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COPPER, FEDERAL PRACTICE AND PROCEDURE §
3723, at 788-89 (4th ed. 2009)). Fraudulent joinder occurs when a plaintiff files a frivolous or
illegitimate claim against a non-diverse defendant solely to prevent removal. Id. A more recent
exception to the complete diversity rule is the fraudulent misjoinder doctrine. Id. 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. Id.
(quoting Ronald A. Parsons, Jr., Should the Eighth Circuit Recognize Procedural Misjoinder?, 53
S.D. L.REV. 52, 57 (2008)).
The Eleventh Circuit is the only federal appellate court to have adopted fraudulent misjoinder.
Id. at 620 n.4 (citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)). The
Eighth Circuit has acknowledged the fraudulent misjoinder doctrine but has declined to either adopt
or reject it. See id., at 622. In In re Prempro, the Eighth Circuit reversed the decision of the trial
court and remanded to state court claims against numerous drug manufacturers alleging that the
manufacturers’ hormone replacement therapy drugs caused breast cancer. Id. at 616-17. The Eighth
Circuit concluded that even if it adopted the fraudulent misjoinder doctrine, the “alleged misjoinder
in this case is not so egregious as to constitute fraudulent misjoinder.” Id.
According to the Eighth Circuit in In re Prempro, the plaintiffs’ claims all arose from a series
of transactions between the drug manufacturers and individuals that used the drugs, and the plaintiffs
all alleged the manufacturers conducted a national sales and marketing campaign to falsely promote
the safety and benefits of the drugs while understating the risks of the drugs. Id. at 623. The Eighth

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Circuit found the plaintiffs’ claims were logically related because each user allegedly developed breast
cancer as a result of the manufacturers’ negligence in designing, manufacturing, testing, advertising,
warning, marketing, and selling the drugs. Id. Thus, the litigation was “likely to contain common
questions of law and fact,” and the Eighth Circuit could not find that the plaintiffs’ claims had “‘no
real connection’ to each other such that they [were] egregiously misjoined.” Id. Finally, “absent
evidence that plaintiffs’ misjoinder borders on a ‘sham,’” the Eighth Circuit declined to apply the
fraudulent misjoinder doctrine. Id. at 624.
Here, the Court finds the Eighth Circuit’s reasoning in In re Prempro dispositive of Plaintiffs’
motion. As in that case, Plaintiffs all allege claims arising out of the same series of transactions
between Defendant (as manufacturer and seller of Fosamax) and Plaintiffs (as users of Fosamax).
Plaintiffs all allege they developed weakened or brittle bones, stress fractures, and femoral fractures
as a result of Defendant’s defective design, failure to warn, negligence, breach of express warranty,
breach of implied warranty, negligent misrepresentation, and fraudulent misrepresentation in the
making, marketing, and selling of Fosamax. As in In re Prempro, Plaintiffs’ claims in this action all
contain common questions of law and fact, and Defendant has not presented evidence that Plaintiffs
joined their claims to avoid diversity jurisdiciton. Therefore, the Court finds it unnecessary to apply
the fraudulent misjoinder doctrine, as Defendant has not shown that Plaintiffs were fraudulently
misjoined.
Since there is not complete diversity between the parties, the Court lacks subject matter
jurisdiction. Thus, this matter must be remanded to state court for lack of federal jurisdiction.
CONCLUSION
Accordingly,

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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand and Request for Expedited
Consideration (ECF. No. 11) is GRANTED in part, and this case is REMANDED to the Circuit
Court of the City of St. Louis, State of Missouri. An appropriate Order of Remand will accompany
this Order.
IT IS FURTHER ORDERED that the outstanding motions in this matter (ECF. Nos. 6, 8)
are DENIED as moot.

Dated this 23rd day of February, 2012.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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