Bradshaw et al v. Mentor Worldwide, LLC

Filing 24

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that plaintiffs' motion to remand (#12) is GRANTED. IT IS FURTHER ORDERED that the defendants motion to dismiss parties (#5) is DENIED. IT IS FURTHER ORDERED that plaintiffs motion for hearing (#23) is DENIED as moot. IT IS FINALLY ORDERED that this cause of action, in its entirety, shall be REMANDED to the Circuit Court for the City of St. Louis from which it was removed. Signed by District Judge Stephen N. Limbaugh, Jr on 6/4/15. (cc: Circuit Court For City of St. Louis)(MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOAN BRADSHAW, et al.,
Plaintiffs,
v.
MENTOR WORLDWIDE, LLC,
Defendants.

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No. 4:15-CV-332 SNLJ

MEMORANDUM AND ORDER
In this case, plaintiffs claim they were injured by the surgical implantation of
defective ObTape “pelvic mesh” due to defendant Mentor Worldwide LLC’s conduct in
designing, marketing, manufacturing, and distributing the ObTape pelvic mesh products.
The 19 plaintiffs are citizens of Missouri, New Jersey, and several other states. Plaintiffs
originally sued Mentor in the Circuit Court for the City of St. Louis, Missouri. Defendant
removed the case to this Court, relying upon this Court’s diversity jurisdiction, 28 U.S.C.
§ 1332, 1441, and 1446. Defendant Mentor is a citizen of New Jersey. Because two
plaintiffs are also citizens of New Jersey, defendant simultaneously moved to dismiss
those plaintiffs (#5). Plaintiffs have moved to remand (#13). This matter is fully briefed
and is now ripe for disposition.
Defendant contends that the out-of-state plaintiffs’ claims should be dismissed
because those plaintiffs “cannot establish personal jurisdiction over Mentor in Missouri.”
(#6 at 2.) “To survive a motion to dismiss for lack of personal jurisdiction, the plaintiff
need only make a prima facie showing of personal jurisdiction over the defendant.” DigiTel Holdings, Inc. v. Proteq Telecommunications (PTE), Ltd., 89 F.3d 519, 522 (8th Cir.
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1996). The court is guided by two primary rules. First, the facts alleged must satisfy the
requirements of the forum state’s long-arm statute. Second, the exercise of personal
jurisdiction over the defendant must not violate due process. See id.
Here, defendant does not appear to contest that it is subject to personal jurisdiction
in Missouri regarding the four Missouri plaintiffs’ claims. Thus, this Court need not
address whether the long-arm statute or due process is satisfied. In addition, the
defendant does not suggest that the out-of-state plaintiffs’ claims are significantly
different from the claims of the Missouri plaintiffs except that the out-of-state plaintiffs
have no contact with Missouri.
Defendant would have the Court focus on the out-of-state plaintiffs’ contacts to
Missouri. Relying on DaimlerAG v. Bauman, 134 S.Ct. 746 (2014), defendant points out
that the out-of-state plaintiffs were not injured in Missouri, and they argue that activities
in Missouri did not cause their injuries. However, Daimler involved general jurisdiction
matters because the plaintiffs were foreign individuals suing an Argentinian company for
acts that occurred in Argentina, but who sought to have the case heard in California based
on a German parent company’s business activities in California. 134 S.Ct. at 750
(considering a court’s authority “to entertain a claim brought by foreign plaintiffs against
a foreign defendant based on events occurring entirely outside the United States.”).
Relevant here is the Supreme Court’s holding that the proper focus regarding the
minimum contacts necessary to create specific jurisdiction is on “the relationship among
the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S.Ct. 115, 1121
(2014) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)). Notably,
“the proper question is not where the plaintiff experienced a particular injury or effect but

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whether the defendant’s conduct connects him to the forum in a meaningful way.” Id. at
1125.
Here, plaintiffs claim that defendant marketed, promoted, and sold their pelvic
mesh product in Missouri, and that because defendant chose to enter the Missouri market
and has continuously and deliberately exploited the Missouri market, it must reasonably
anticipate being haled into Court here in an action based on products it marketed,
promoted, and sold, and its conduct in so doing. The Missouri and out-of-state plaintiffs
are properly joined, they say, because their claims arise out of the same transactions or
occurrences and include common questions of law and fact, see Fed. R. Civ. P. 29(a)(1).
Defendants argue that the out-of-state plaintiffs cannot join in this action without
showing some sort of independent personal jurisdiction over the defendant. Defendants
rely on Level 3 Commc’ns, LLC v. Illinois Bell Tel. Co., No. 4:13-CV-1080 CEJ, 2014
WL 50856, at *2 (E.D. Mo. Jan. 7, 2014) order vacated in part on reconsideration, No.
4:13-CV-1080 CEJ, 2014 WL 1347531 (E.D. Mo. Apr. 4, 2014). There, two
telecommunications companies sued AT&T for breach of contract and federal laws. One
plaintiff had a contract with the defendant in which the defendant consented to
jurisdiction in Missouri. The other plaintiff’s contract had no such consent provision. Id.
This Court held that the second plaintiff could not establish personal jurisdiction over the
defendant for its claims. Id. Defendant Mentor’s reliance on Level 3 fails because, here,
the plaintiffs’ claims all arise from the same or substantially related acts, which happened
to take place in Missouri and in other states, but which squarely subject Mentor to
personal jurisdiction in Missouri. The contract-based claims in the Level 3 case,
however, are not subject to the same analysis.

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It is notable that scores of products liability cases regarding pharmaceuticals or
medical devices involve similar arrangements of in-state and out-of-state plaintiffs. See,
e.g., In re Prempro Products Liability Litigation, 591 F.3d 613, 617 (8th Cir. 2010). The
Court has been unable to find other cases addressing the matter of the out-of-state
plaintiffs’ establishment of personal jurisdiction over the defendant. However, the Eighth
Circuit addressed the concept of “misjoined plaintiffs” in the Prempro litigation on a
motion to remand, where the defendant had removed on the basis that non-diverse
plaintiffs had been added for the sole purpose of defeating diversity jurisdiction. Id. at
620. Rather than determining the propriety of the fraudulent misjoinder doctrine, the
Eighth Circuit concluded that, even if adopted, any such “misjoinder” in that action was
not so egregious as to constitute fraudulent misjoinder. Id. at 622. The Court noted that,
in light of Federal Rule of Civil Procedure 20’s joinder standard and the allegations of the
defendants’ national sales and marketing campaigns, the claims were “logically related.”
Id. at 623. Furthermore, the litigation was likely to contain common questions of law and
fact. Id. Thus the Eighth Circuit rejected the notion that the plaintiffs were egregiously
misjoined. Id.
The defendants in Prempro might have made a personal jurisdiction argument in
that case, but it was not addressed. The same appears to be so for the many other cases in
which plaintiffs from different states file products liability lawsuits against a common
defendant. See, e.g., Couch v. Fresenius Med. Care N. Am., Inc., No. 4:14-CV-955-JAR,
2014 WL 3579926 (E.D. Mo. July 21, 2014); McGee v. Fresenius Med. Care N. Am.,
Inc., No. 4:14-CV-967 SNLJ, 2014 WL 2993755, at *3 (E.D. Mo. July 3, 2014); Spiller
v. Fresenius USA, Inc., No. 4:13–CV2538 (HEA), 2014 WL 294430 (E.D.Mo. Jan. 27,
2014); Aday v. Fresenius Med. Care N. Am., Inc., No. 4:13–CV–2462 (CEJ), 2014 WL
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169634 (E.D.Mo. Jan. 15, 2014); Agnew v. Fresenius Medical Care North America, Inc.,
No. 4:13–CV–2468 (TCM), 2014 WL 82195 (E.D.Mo. Jan. 9, 2014); Atwell v. Boston
Scientific Corp., No. 4:12-CV-2363 CEJ, 2013 WL 136471, at *3 (E.D. Mo. Jan. 10,
2013). In each of those cases (and many more similar cases), this Court has granted
motions to remand because diversity jurisdiction --- and therefore subject matter
jurisdiction --- did not exist. The Court will do so here, as well.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand (#12) is
GRANTED.
IT IS FURTHER ORDERED that the defendant’s motion to dismiss parties (#5)
is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion for hearing (#23) is
DENIED as moot.
IT IS FINALLY ORDERED that this cause of action, in its entirety, shall be
REMANDED to the Circuit Court for the City of St. Louis from which it was removed.
Dated this 4th day of June, 2015.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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