Davood et al v. Pfizer Inc.
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to remand this action [Doc. # 7 ] is granted. IT IS FURTHER ORDERED that the Clerk of the Court shall remand this action to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis) from which it was removed. Signed by District Judge Carol E. Jackson on 6/10/14. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
PARVIN DAVOOD, et al.,
Case No. 4:14-CV-970 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand this case to the
Twenty-Second Judicial Circuit Court of Missouri. The issues are fully briefed.
On February 27, 2014, thirteen plaintiffs filed this products liability action in the
Circuit Court for the Twenty-Second Judicial Circuit (City of St. Louis). Plaintiffs seek
monetary damages for allegedly developing diabetes as the result of their use of the
prescription drug Lipitor (also known as atorvastatin calcium), which is manufactured,
marketed, distributed, and sold by defendant Pfizer Inc. Plaintiffs assert claims based
on product liability/failure to warn, negligence, breach of implied warranty, fraud,
constructive fraud, and unjust enrichment.
On March 23, 2014, defendant removed the action, claiming jurisdiction based
on diversity of citizenship pursuant to 28 U.S.C. § 1332. Defendant is a citizen of
Delaware and New York. Plaintiffs are citizens of Missouri, Oklahoma, Pennsylvania,
Georgia, California, Florida, West Virginia, Illinois, and New York. In support of its
removal petition, defendant asserts that the Court should disregard the New York
citizenship of plaintiff Cheryl Nickerson, alleging that she was fraudulently misjoined.
Plaintiffs seek remand, arguing that complete diversity is absent.
“A defendant may remove a state law claim to federal court only if the action
originally could have been filed there.” In re Prempro Products Liability Litigation, 591
F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.
2005)). Diversity jurisdiction requires an amount in controversy greater than $75,000
and complete diversity of citizenship among the litigants.
28 U.S.C. § 1332(a).
“Complete diversity of citizenship exists where no defendant holds citizenship in the
same state where any plaintiff holds citizenship.” OnePoint Solutions, LLC v. Borchert,
486 F.3d 342, 346 (8th Cir. 2007). The defendant bears the burden of establishing
federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy
College, 420 F.3d 763, 768 (8th Cir. 2005). “All doubts about federal jurisdiction
should be resolved in favor of remand to state court.” In re Prempro Products Liability
Litigation, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
2007)). A case must be remanded if, at any time, it appears that the district court
lacks subject-matter jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
The Eighth Circuit has not yet determined whether removal based on diversity
of citizenship can be thwarted by fraudulent misjoinder. In Prempro, the court
discussed the doctrine of fraudulent misjoinder:
A more recent, somewhat different, and novel exception to the complete
diversity rule is the fraudulent misjoinder doctrine which one appellate
court and several district courts have adopted. 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. Ronald A. Parsons, Jr., Should the Eighth Circuit Recognize
Procedural Misjoinder?, 53 S.D. L.Rev. 52, 57 (2008).
Prempro, 591 F.3d at 620 (footnotes omitted).
In Prempro, the plaintiffs filed three lawsuits in which they asserted state law
tort and contract claims against defendant companies that manufactured and marketed
hormone replacement therapy (HRT) drugs. The cases were removed to the federal
district court based on the defendants’ assertion of diversity jurisdiction.
defendants maintained that the plaintiffs’ claims were fraudulently misjoined, because
they did not arise out of the same transaction or occurrence as required by
The Prempro court declined to either adopt or reject the fraudulent misjoinder
doctrine, because it found that, even if the doctrine were applicable, the “plaintiffs
alleged misjoinder in this case is not so egregious as to constitute fraudulent
misjoinder.” Id. at 622. In reaching this conclusion, the court considered that plaintiffs’
claims arose from a series of transactions involving the HRT manufacturers and the
HRT users, and that common questions of law and fact were likely to arise in the
litigation, particularly on the issue of causation, i.e., the existence of a link between the
HRT drugs and plaintiffs’ injuries. Id. at 623. The court concluded that, “[b]ased on
the plaintiffs’ complaints, we cannot say that their claims have ‘no real connection’ to
each other such that they are egregiously misjoined.” Id. (distinguishing Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1966), and declining to apply the
fraudulent misjoinder doctrine “absent evidence that plaintiffs’ misjoinder borders on
In the instant case, the defendant has not demonstrated that the joinder of a
New York citizen with the other plaintiffs in this action “borders on a ‘sham.’” Prempro,
591 F.3d at 624. As this Court has found in several recent cases, the joinder of
plaintiffs alleging injury from a single drug is not “egregious,” because common issues
of law and fact connect plaintiffs’ claims. See, e.g., Jennings v. Pfizer, Inc., No. 4:14CV-276 (HEA) (Lipitor) (E.D. Mo. May 8, 2014); Lovett v. Pfizer, Inc., No. 4:14-CV-458
(CEJ) (Lipitor) (E.D. Mo. Mar. 26, 2014); Jackson v. Pfizer Inc., No. 4:13-CV-1915
(RWS) (Oct. 15, 2013) (Lipitor); T.F. v. Pfizer, Inc., No. 4:12-CV-1221 (CDP), 2012
WL 3000229, at *1 (E.D. Mo. July 23, 2012) (Zoloft®); S.L. v. Pfizer, Inc., No. 4:12CV-420 (CEJ) (E.D. Mo. Apr. 4, 2012) (Zoloft®); Douglas v. GlaxoSmithKline, LLC, No.
4:10-CV-971 (CDP), 2010 WL 2680308, at *2 (E.D. Mo. July 1, 2010) (Avandia®);
Valle v. Ethicon, Inc., No. 4:13-CV-798 (RWS) (E.D. Mo. Apr. 29, 2013) (transvaginal
mesh products). Similarly, plaintiffs in this case have filed suit against defendant for
injuries caused by the same product arising out of the same development, distribution,
marketing, and sales practices for that product, and common issues of law and fact are
likely to arise in litigation.
Defendant argues that each plaintiff’s claim will depend upon unique factual
determinations, i.e., different medical histories, dosages, doctors, environmental
factors, and genetic risks; that numerous different states’ laws will apply to plaintiffs’
claims; and that plaintiffs’ joinder was specifically calculated to defeat federal
jurisdiction. Defendant also requests that the Court disregard the Eighth Circuit’s
decision in Prempro because “subsequent authorities” in other jurisdictions “raise
serious doubt as to whether the Eighth Circuit would adhere to [Prempro] if it
reconsidered the question today.” [Doc. #13, at p. 11]. The Court finds these
arguments unpersuasive and declines to disregard Eighth Circuit precedent.
Spears v. Fresenius Med. Care North America, Inc., 4:13-CV-855-CEJ (E.D. Mo. June
12, 2013) (this Court rejected the same arguments); Lovett v. Pfizer, Inc., No. 4:14CV-458 (CEJ) (E.D. Mo. Mar. 26, 2014).
Plaintiffs were not egregiously joined in this suit, and, as such, there is no
complete diversity of citizenship as required by 28 U.S.C. § 1332. Therefore, this
Court lacks subject matter jurisdiction.
IT IS HEREBY ORDERED that plaintiffs’ motion to remand this action [Doc.
#7] is granted.
IT IS FURTHER ORDERED that the Clerk of the Court shall remand this action
to the Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis) from which
it was removed.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 10th day of June, 2014.
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