Hendrich et al v. Medtronic Inc et al

Filing 24

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion to remand is GRANTED. (Doc. No. 11.) 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 Audrey G. Fleissig on 11/5/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIMMY HENDRICH, et al.,
Plaintiffs,
vs.
MEDTRONIC, INC., et al.,
Defendants.

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Case No. 4:14CV01635 AGF

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiffs’ motion to remand for lack of
subject matter jurisdiction. (Doc. No. 11.) For the reasons set forth below, Plaintiffs’
motion shall be granted.
BACKGROUND
On May 29, 2014, Plaintiffs filed this tort action in the Twenty-Second Judicial
Circuit Court of Missouri, located in the City of St. Louis, seeking to recover damages for
injuries allegedly caused by the InFUSETM Bone Graft and LT-CAGETM Lumbar Tapered
Fusion Device (“Infuse”) manufactured and distributed by the Defendants. Plaintiffs
assert state law claims of negligence, strict liability, fraud, breach of warranty, and
violation of state consumer protection and merchandising practices statutes. Of the 93
Plaintiffs in this action, 14 are residents of Missouri.
On June 30, 2014, Defendants moved in state court to dismiss the amended
petition. Plaintiffs opposed that motion on August 22, 2014. On September 19, 2014,

Defendants removed the action to this Court, pursuant to 28 U.S.C. § 1453. Defendants
assert that removal was timely because they filed within 30 days of statements Plaintiffs
made in their Opposition and Surreply briefs on August 22 and September 18, 2014
which Defendants assert provide the basis for removal. Defendants assert that this Court
has jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
1332(d), in that this case is a “mass action” as defined in 28 U.S.C. § 1332(d)(11)(B).
Two similar lawsuits involving the Infuse device were also removed to this Court by
Defendants, Smith, et al. v. Medtronic, Inc., No. 4:13-CV-02220-CEJ, and Anders, et al.
v. Medtronic, Inc., No. 4:14-CV-01637-ERW. Smith and Anders also originated in the
Twenty-Second Judicial Circuit Court, and both cases also involve slightly less than 100
plaintiffs. Prior to their removal, all three cases were consolidated for pretrial
proceedings.
Defendants argue that Plaintiffs have a proposed joint trial for the three cases,
thereby rendering the cases a single “mass action” under CAFA, notwithstanding that
each case alone would not satisfy CAFA requirements. The plaintiffs in all three cases
filed timely motions to remand. On October 17, 2014, Judge E. Richard Webber granted
plaintiffs’ motion to remand Anders to the Twenty-Second Judicial Circuit Court of
Missouri from which it had been removed, upon finding that plaintiffs had not requested
a joint trial of the three cases. See Anders v. Medtronic, Inc., No. 4:14CV01637 ERW,
2014 WL 5320391 (E.D. Mo. Oct. 17, 2014). On October 30, 2014, Judge Carol E.
Jackson granted plaintiffs’ motion to remand Smith to the Twenty-Second Judicial Circuit
Court of Missouri for substantially similar reasons as Judge Webber in Anders. See
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Smith v. Medtronic, Inc., No. 4:14-CV-01636-CEJ, 2014 WL 5489301 (E.D. Mo. Oct.
30, 2014).
DISCUSSION
“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 Liab. Litig., 591 F.3d
613, 619 (8th Cir. 2010). The party asserting federal diversity jurisdiction has the burden
of proving diversity jurisdiction by a preponderance of the evidence. Id. at 620. “All
doubts about federal jurisdiction should be resolved in favor of remand to state court.”
Id. 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).
CAFA provides federal district courts original jurisdiction over certain class
actions, including “mass actions.” 28 U.S.C. § 1332(d). A “mass action” is a civil action
“in which monetary relief claims of 100 or more persons are proposed to be tried jointly
on the ground that the plaintiffs’ claims involve common questions of law or fact.” Id. §
1332(d)(11)(B). However, a CAFA mass action does not exist where “the claims are
joined upon motion of a defendant,” or where “the claims have been consolidated or
coordinated solely for pretrial proceedings.” § 1332(d)(11)(B)(ii)(II, IV). State court
plaintiffs are allowed to bring separate actions, each with fewer than 100 plaintiffs,
against common defendants to avoid federal jurisdiction, unless their claims are proposed
to be tried jointly. Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1162-63 (8th Cir.
2013).
In Atwell, three groups of plaintiffs brought product liability actions in St. Louis
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Circuit Court, alleging injury caused by defendants’ transvaginal mesh medical devices.
Id. at 1161. Each group of plaintiffs filed motions asking the cases be assigned to a
single judge for purposes of discovery and trial. Id. Two of the three groups “cited
avoiding conflicting pretrial rulings, providing consistency in the supervision of pretrial
matters, and judicial economy as reasons for the assignment.” Id. at 1164 (citations
omitted). And one group argued that “[t]here's going to be a process in which to select
the bellwether case to try.” Id. The court of appeals found that the plaintiffs’ motions,
which explicitly sought assignment to a single judge for discovery and trial, would
inevitably result in a joint trial of the three cases, even though each group noted it was not
seeking to consolidate with other cases. Id. at 1166. Thus, the relevant question under
Atwell is whether Plaintiffs have proposed a joint trial, either explicitly or implicitly. To
answer this question, the Court must closely review the prior proceedings between the
parties in state court.
After reviewing the state court record, with particular attention to the passages
cited by Defendants, the Court finds that Plaintiffs did not propose a joint trial of the
three cases, either explicitly or implicitly. Defendants cite from Plaintiffs’ opposition to
Defendants’ motion to dismiss in state court that “[h]ere, there are numerous common
questions of fact concerning the conduct of Defendants common to all Plaintiffs,” the
“[p]etition is replete with common facts alleging improper and illegal behavior that
harmed all of the Plaintiffs,” and joinder of claims of the Plaintiffs “is consistent with the
important policy” underlying the Missouri joinder rule—“to try all issues arising out of
the same occurrence or series of occurrences together.” (Doc. No. 1 at 5.) The Court
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finds that Plaintiffs were arguing against the severance of claims brought in the Hendrich
case, and Plaintiffs asked solely for a joinder of claims of the 93 Plaintiffs in Hendrich,
not of the plaintiffs in all three cases.
Unlike Atwell, where a single judge was requested by three groups of plaintiffs
for discovery and trial, here the state court’s Administrative Order consolidated the three
cases “for pretrial matters only,” and the state court “will return each case to Division 1
for assignment for trial for once all discovery and other pre-trial matters have been
completed.” (Doc. No 12-6 at 2.)
Because Plaintiffs have not requested a joint trial for Anders, Smith and
Hendrich, either explicitly or implicitly, this is not a mass action and does not meet the
jurisdictional requirements of CAFA. This case shall therefore be remanded to the
Circuit Court of the City of St. Louis for lack of subject matter jurisdiction.
Having found that the Court lacks subject matter jurisdiction, the Court need not
reach Plaintiffs’ alternative argument that removal was untimely.
Plaintiffs request costs and expenses pursuant to 28 U.S.C. § 1447(c). “[T]he
standard for awarding fees should turn on the reasonableness of the removal. Absent
unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal. Conversely,
when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005). The Court finds that Defendants had an
objectively reasonable basis for seeking removal and will therefore deny Plaintiffs’
request for costs and expenses.
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CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiffs’ motion to remand is GRANTED.
(Doc. No. 11.)
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.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 5th day of November, 2014.

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