Simmons et al v. Skechers USA, Inc. et al

Filing 22

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants motion to stay proceedings pending the decision of the JPML [Doc. #4] is denied. IT IS FURTHER ORDERED that defendants request for oral argument [Doc. #19] is denied. IT IS FURTHER ORDERE D that plaintiffs motion to remand [Doc. #10] 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. (cc: Twenty-Second Judicial Circuit Court City) Signed by District Judge Carol E. Jackson on 4/9/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHELLE SIMMONS, et al.,
Plaintiffs,
vs.
SKECHERS USA, INC., et al.,
Defendants.

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Case No. 4:15-CV-340-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motions to stay and to sever
the claims of several plaintiffs, and plaintiffs’ motion to remand this action to the
Missouri state court from which it was removed. The issues are fully briefed.
I.

Background

Plaintiffs initiated this action in a Missouri state court to recover damages for
injuries they allegedly sustained as a result of their use of the defendants’ Skechers
Shape-ups® shoes.

In the complaint, the plaintiffs assert state law-based strict

liability claims of product defect and inadequate warning, breach of warranty,
negligence, negligent misrepresentation, fraud, unjust enrichment, and unfair and
deceptive trade practices.
The defendants removed the action to this Court, invoking jurisdiction based
on diversity of citizenship, pursuant to 28 U.S.C. § 1332(a). Defendants Skechers
U.S.A., Inc. and Skechers U.S.A., Inc. II are incorporated in Delaware and have
their principal places of business in California. Defendants state in their notice of
removal that “Skechers Fitness Group” is a division of Skechers U.S.A., Inc. II and
is not a separate legal entity.

Of the sixty-five plaintiffs, two are citizens of

California and the rest are citizens of states other than California and Delaware.
Although complete diversity does not appear on the face of the complaint,
defendants argue that for jurisdictional purposes, the Court should consider only
the properly-joined claims of the Missouri plaintiffs. Defendants maintain that the
claims of the remaining plaintiffs should not be considered because neither they nor
their claims have any connection to Missouri and, therefore, they cannot establish
personal jurisdiction over the defendants in Missouri.

Alternatively, defendants

assert that the non-Missouri plaintiffs were either fraudulently joined or fraudulently
misjoined. Plaintiffs counter that joinder is proper and move to remand.
II.

Motion to Stay

Defendants move to stay proceedings until the Judicial Panel on Multidistrict
Litigation rules on their motion to transfer this case to the MDL proceeding, In re
Skechers Toning Shoe Products Liab. Litig., MDL No. 2308. However, “[a] putative
transferor court need not automatically postpone rulings on pending motions, or in
any way generally suspend proceedings, merely on grounds that an MDL transfer
motion has been filed.” Spears v. Fresenius Med. Care N. Am., Inc., 4:13-CV-855CEJ, 2013 WL 2643302, at *1 (E.D. Mo. June 12, 2013) (citations omitted). “This
is especially true where, as here, the pending motion is one for remand and goes to
the Court’s subject matter jurisdiction.”

Id.

Waiting for a decision by the Panel

before ruling on the motion to remand “would not promote the efficient
administration of justice.”

Id.

Accordingly, defendants’ motion to stay will be

denied.
III.

Motion to Remand

“A defendant may remove a state law claim to federal court only if the action

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originally could have been filed there.”

In re Prempro Products Liab. Litig., 591

F.3d 613, 619 (8th Cir. 2010) [hereinafter Prempro] (citing Phipps v. FDIC, 417
F.3d 1006, 1010 (8th Cir. 2005)). The defendant bears the burden of establishing
federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy
Coll., 420 F.3d 763, 768 (8th Cir. 2005). 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). “All doubts about federal jurisdiction should be
resolved in favor of remand to state court.”

Prempro, 591 F.3d at 620 (citing

Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)).
Removal in this case was premised on diversity jurisdiction, which 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). There is no dispute that the amount in controversy requirement
for diversity jurisdiction is met in this case.

The dispute here centers on which

plaintiffs should be considered for purposes of assessing diversity of citizenship.
A. Permissive Joinder
Defendants assert that joinder of the sixty-five plaintiffs’ claims is improper
because plaintiffs’ injuries occurred in different states and under unique factual
circumstances. Fed. R. Civ. P. 20(a)(1) “allows multiple plaintiffs to join in a single
action if (i) they assert claims ‘with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences;’ and (ii) ‘any
question of law or fact common to all plaintiffs will arise in the action.’” Prempro,

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591 F.3d at 622 (quoting Fed. R. Civ. P. 20(a)(1)). Missouri’s permissive joinder
rule is substantively identical. Mo. Sup. Ct. R. 52.05(a); see State ex rel. Allen v.
Barker, 581 S.W.2d 818, 826 (Mo. 1979) (en banc). Consequently, under both the
rules applicable when the complaint was filed in state court and the rules applicable
in federal district court today the same test applies to determine if joinder is
permitted.

Defendants concede, moreover, that the second prong of the test is

satisfied because plaintiffs’ complaint raises common questions of law or fact
regarding, inter alia, the design, manufacture, and marketing of Shape-ups®.
Thus, the Court need only answer whether plaintiffs’ claims arise from the same
transaction or occurrence, or series thereof.
“In construing Rule 20, the Eighth Circuit has provided a very broad
definition for the term ‘transaction.’”

Prempro, 591 F.3d at 622.

“It may

comprehend a series of many occurrences, depending not so much upon the
immediateness of their connection as upon their logical relationship.”

Mosley v.

Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974). Accordingly, Rule 20(a)
“permit[s] all reasonably related claims for relief by or against different parties to
be tried in a single proceeding,” without requiring “[a]bsolute identity of all events.”
Prempro, 591 F.3d at 622.
Plaintiffs’ claims meet Rule 20(a)’s standard. Because plaintiffs’ allegations
relate to defendants’ design, manufacture, and marketing of Shape-ups®—
occurrences common to all plaintiffs—the Court concludes that their claims arise out
of the same transaction or occurrence or series thereof. That remains true even if
plaintiffs were injured in different states and their injuries range in severity and
type, as their claims are all reasonably related.

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Thus, joinder of all sixty-five

plaintiffs’ claims is proper under Rule 20(a).
B. Fraudulent Joinder
Defendants next contend that the non-Missouri plaintiffs are fraudulently
joined, such that their citizenship should not be considered for purposes of
determining whether diversity exists.

“Courts have long recognized fraudulent

joinder as an exception to the complete diversity rule.”

Id. at 620 (citing 14B

Charles Alan Wright et al., Federal Practice and Procedure § 3723 (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.

To prove

fraudulent joinder, the removing party must show that “the plaintiff’s claim against
the diversity-destroying defendant has ‘no reasonable basis in fact and law.’”
Knudson v. Systs. Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011) (quoting Filla v.
Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)).

“[I]f it is clear under

governing state law that the complaint does not state a cause of action against the
non-diverse defendant, the joinder is fraudulent.” Id. Conversely, “joinder is not
fraudulent where ‘there is arguably a reasonable basis for predicting that the state
law might impose liability based upon the facts involved.’” Id. (quoting Filla, 336
F.3d at 811).
Here, defendants are not asking the Court to evaluate the non-Missouri
plaintiffs’ claims to determine whether they are viable under substantive state law.
Rather, defendants are challenging the propriety of joining the non-Missouri
plaintiffs’ claims into a single action by asserting a procedural challenge to personal
jurisdiction. Yet, defendants cite no case that holds that the theory of fraudulent
joinder—an inquiry into substantive viability of claims—countenances a procedural

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challenge to a court’s personal jurisdiction over a defendant.

This Court rejects

such a contorted theory of fraudulent joinder. Consequently, because defendants’
only argument that the non-Missouri plaintiffs were fraudulently joined is a
procedural challenge to personal jurisdiction rather than a substantive challenge to
the viability of the claims, the Court concludes that the non-Missouri plaintiffs were
not fraudulently joined in this action.
C. Fraudulent Misjoinder
According to defendants, the non-Missouri plaintiffs were also fraudulently
misjoined with the Missouri plaintiffs.

The Eighth Circuit has not yet determined

whether removal based on diversity of citizenship can be thwarted where there is
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.
Prempro, 591 F.3d at 620 (footnotes and citations 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.
The defendants maintained that the plaintiffs’ claims were fraudulently misjoined,

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because they did not arise out of the same transaction or occurrence as required by
Fed. R. Civ. P. 20(a).
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. 1996), and declining to apply the fraudulent misjoinder doctrine
“absent evidence that plaintiffs’ misjoinder borders on a ‘sham’”).
In the instant case, defendants have not demonstrated that the joinder of
the non-diverse plaintiffs with the Missouri plaintiffs in this action “borders on a
sham.” Id. at 624.

To the contrary, for all of the reasons discussed above, the

non-diverse plaintiffs’ claims—as with those of all the non-Missouri plaintiffs—meet
the same transaction or occurrence, or series thereof, test required for joinder
under Rule 20(a). Moreover, as this Court has found in several recent cases, the
joinder of plaintiffs who allege injury from a single defective product is not
“egregious,” because common issues of law and fact connect plaintiffs’ claims. See,
e.g., 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); Woodside v. Fresenius Med. Care N. Am., Inc.,
No. 4:13-CV-2463-CEJ, 2014 WL 169637 (E.D. Mo. Jan. 15, 2014); Spears, 2013
WL 2643302. Similarly, plaintiffs here have filed suit against defendants for injuries
caused by the same product and arising out of the same design, manufacture, and
marketing practices—the same transactions—and common issues of law or fact are
likely to arise in the litigation over the design, manufacture, and marketing of that
product.
Finally, the Court finds unpersuasive defendants’ arguments that plaintiffs’
claims depend on unique factual determinations, that the different laws of
numerous states apply to the claims, and that joinder of the non-diverse plaintiffs
was specifically calculated to defeat federal jurisdiction.

As discussed above,

plaintiffs have met the standard for joinder under Rule 20(a).

The presence of

some unique factual circumstances in each of plaintiffs’ claims and the necessity to
apply parallel state legal standards to those claims does not undercut the propriety
of joinder. Finally, “the bad faith referred to in Prempro must be something more
than a desire to defeat federal jurisdiction.” Id. at *3 (quotation marks and citation
omitted).

Thus, the non-diverse plaintiffs’ claims are not fraudulently misjoined,

complete diversity is absent, and the case must be remanded.
Because the Court lacks subject matter jurisdiction, it will not address the
defendants’ motion to dismiss for lack of personal jurisdiction.
* * * * *
IT IS HEREBY ORDERED that defendants’ motion to stay proceedings
pending the decision of the JPML [Doc. #4] is denied.

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IT IS FURTHER ORDERED that defendants’ request for oral argument [Doc.
#19] is denied.
IT IS FURTHER ORDERED that plaintiffs’ motion to remand [Doc. #10] 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 9th day of April, 2015.

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