Gracey et al v. Janssen Pharmaceuticals, Inc. et al

Filing 18

MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that plaintiffs motion for remand [Doc. # 9 ] 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 5/4/15. (Remark: Certified copy of Memorandum and Order and docket sheet mailed to 22nd Judicial Court of Missouri)(JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONE GRACEY, et al.,
Plaintiffs,
vs.
JANSSEN PHARMACEUTICALS, INC.,
f/k/a/ ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC. and JANSSEN
PHARMACUETICA, INC., et al.,
Defendants.

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No. 4:15-CV-407 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand this action to the
Twenty-Second Judicial Circuit Court of Missouri (City of St. Louis), from which it was
removed.

Defendants oppose the motion.

For the following reasons, plaintiffs’

motion will be granted.
I.

Background

On January 26, 2015, sixty-four plaintiffs from thirty states filed this action in
the City of St. Louis Circuit Court, alleging thirteen state law causes of action against
defendants arising out of their manufacture and sale of the antipsychotic drug
Risperidone.

Plaintiffs assert claims of negligence, negligent design defect, fraud,

strict product liability for failure to warn, strict product liability for design defect, strict
product

liability

for

failure

to

adequately

test,

strict

product

liability

for

nonconformance with representations, breach of express warranty, breach of implied
warranty, violation of the Missouri Merchandising Practices Act, punitive damages,
medical expenses incurred by parent, loss of consortium.
On March 4, 2015, defendants removed the action to this Court on the basis of
diversity jurisdiction, 28 U.S.C. § 1332(a). Defendants are citizens of New Jersey

and Pennsylvania.

One plaintiff is a citizen of New Jersey, and five plaintiffs are

citizens of Pennsylvania.

Despite the lack of complete diversity on the face of the

complaint, defendants argue that federal diversity jurisdiction exists because the
out-of-state plaintiffs’ claims were fraudulently joined and thus should be ignored for
purposes of determining diversity.

Plaintiffs move to remand, arguing that the

out-of-state, diversity-destroying plaintiffs’ claims have been properly joined.
II.

Discussion

An action is removable to federal court if the claims originally could have been
filed in federal court.

28 U.S.C. § 1441; In re Prempro Prods. Liability Litigation, 591

F.3d 613, 619 (8th Cir. 2010).

Defendants bear 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). Any doubts about the propriety of removal are resolved in favor of
remand.

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 is more than $75,000.

Likewise,

the parties agree that six plaintiffs are citizens of the same states as defendants and,
thus, complete diversity is lacking on the face of the complaint.

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Defendants argue

that this Court nonetheless has diversity jurisdiction because the out-of-state
plaintiffs’ claims were fraudulently joined.
“Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent removal.”
620.

Prempro, 591 F.3d at

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).
Fraudulent misjoinder, a doctrine the Eighth Circuit has neither accepted nor
rejected,1 occurs when a plaintiff joins a viable claim, either by another non-diverse
plaintiff or against another non-diverse defendant, with “no reasonable procedural
basis to join them in one action” because the claim that destroys diversity has “no real
1 Several courts of appeal have acknowledged the doctrine of fraudulent misjoinder, but only the
Eleventh Circuit has adopted it. Compare Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1359-60
(11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, 204 F.3d 1069, 1360 (11th Cir.
2000) with Kent State Univ. Bd. of Trustees v. Lexington Ins. Co., No. 11-CV-3601, 2013 WL 216026, at
*6 n.1 (6th Cir. Jan. 22, 2013) (“[T]he Sixth Circuit has not adopted the fraudulent misjoinder
doctrine.”); Lafalier v. State Farm Fire & Cas. Co., 391 Fed. Appx. 732, 739 (10th Cir. 2010) (“[W]e need
not decide [whether to adopt procedural misjoinder] today, because the record before use does not show
that adopting the doctrine would change the result in this case.”); In re Prempro Prods. Liab. Litig., 591
F.3d 613, 622 (8th Cir. 2010) (“[W]e conclude that even if we adopted the doctrine, the plaintiffs’ alleged
misjoinder in this case is not so egregious as to constitute fraudulent misjoinder.”); In re Benjamin Moore
& Co., 318 F.3d 626, 630-31 (5th Cir. 2002) (“[W]ithout detracting from the force of the Tapscott
principle that fraudulent misjoinder of plaintiffs is no more permissible than fraudulent misjoinder of
defendants to circumvent diversity jurisdiction, we do not reach its application in this case.”); California
Dump Truck Owners Ass’n v. Cummins Engine Co., Inc., 24 Fed. Appx. 727, 729 (9th Cir. 2001) (“[W]e
will assume, without deciding, that this circuit would accept the doctrines of fraudulent and egregious
joinder as applied to plaintiffs.”).

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connection with the controversy.”
omitted).
there

has

Prempro, 591 F.3d at 620 (footnotes and citations

Whether a party has been fraudulently misjoined depends on whether
been

an

“egregious

and

broadly-interpreted joinder standards.”

grossly

improper”

joinder

“under

the

Id. at 624.

As noted by defendants, “[f]raudulent misjoinder challenges the propriety of
joining viable claims into a single action while fraudulent joinder challenges the
viability of the claims themselves.”
original).

Defs.’ Opp. at *11 [Doc. #13] (emphasis in

In other words, alleging fraudulent joinder “requires the court to look, at

least somewhat, at the substantive merits of the claim,” while fraudulent misjoinder is
a question of procedure. See Bowling v. Kerry, Inc., 406 F. Supp. 2d 1057, 1060
(E.D. Mo. 2005) (referring to fraudulent misjoinder as “procedural misjoinder”). For
example, in the sole Eighth Circuit case defendants rely upon for the proposition that
the theory of fraudulent joinder applies equally to plaintiffs, the issue was whether the
non-diverse plaintiff was a “real party in interest” in the matter – an issue related to
the substantive merits of the claim or whether those plaintiffs had a viable cause of
action.

See Iowa Public Serv. Co. v. Medicine Bow Coal Co., 556 F.2d 400, 404 (8th

Cir. 1977) (“The ‘real party in interest’ is the person who, under governing
substantive law, is entitled to enforce the right asserted.”); see also Foslip Pharm.,
Inc. v. Metabolife Int'l, Inc., 92 F. Supp. 2d 891, 904 (N.D. Iowa 2000) (comparing
the “real party in interest” test to the standard that “a plaintiff is not fraudulently
joined unless there is no possibility that the plaintiff would be able to establish a cause
of action against the defendant in state court”).
Here, defendants are not asking the Court to assess the out-of-state plaintiffs’
claims to determine if the plaintiffs have a cause of action under substantive state
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law; rather, defendants are challenging the propriety of joining the out-of-state
plaintiffs’ claims into a single action in which the court has established personal
jurisdiction over defendants. 234

Correctly characterized, defendants’ argument is

based on the theory of fraudulent misjoinder. Thus, the real issue is whether the
out-of-state plaintiffs’ claims have been properly joined under Rule 20 of the Federal
Rules of Civil Procedure. As in Prempro and several recent cases before this Court,
even if the fraudulent misjoinder doctrine is applied, it does not support this Court's
exercise of jurisdiction.

See, e.g., Morgan v.

Janssen Pharms., Inc., No.

4:14-CV-1346 (CAS), 2014 WL 6678959 (E.D. Mo. Nov. 25, 2014); Butler v.
2 According to defendants, no federal or state court in Missouri can exercise personal jurisdiction over
defendants and comport with due process with respect to the out-of-state plaintiffs’ claims. The parties
do not dispute, however, that Missouri courts have personal jurisdiction over defendants with respect to
the in-state plaintiffs’ claims. Missouri courts, thus, may properly exercise personal jurisdiction over
defendants with respect to this cause of action as a whole arising out of or related to its contacts and
conduct in Missouri. See Shaffer v. Heitner, 433 U.S. 186, 204 (1977) (stating that the proper focus of
the due process inquiry for the exercise of personal jurisdiction is “the relationship among the defendant,
the forum, and the litigation”); see also Walden v. Fiore, 134 S. Ct. 1115, 1126 (U.S. 2014) (“[I]t is the
defendant, not the plaintiff or third parties, who must create contacts with the forum State.”); Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779 (1984) (permitting a forum State to assert personal
jurisdiction over a nonresident defendant when a plaintiff’s contacts with the forum are “extremely
limited” or even “entirely lacking”).
3 The supplemental authority defendants filed is inapplicable, because that decision analyzed solely
whether Missouri courts could exercise general jurisdiction over the out-of-state corporate defendants
after the Supreme Court’s decision in Daimler v. Bauman, 134 S. Ct. 746 (2014). See Neeley v. Wyeth,
Inc., No. 4:11-CV-325 (JAR), 2015 WL 1456984, at *1 (E.D. Mo. Mar. 30, 2015). In contrast to the
present case, specific jurisdiction was not present in Missouri because plaintiffs were all Kentucky
residents and their causes of action all arose out of defendants’ contacts in Kentucky rather than
defendants’ contacts with Missouri. See Neeley v. Wolters Kluwer Health, Inc., No. 4:11-CV-325 (JAR),
2013 WL 3929059, at *3-4 (E.D. Mo. July 29, 2013).
4 Also, it is undisputed that defendant Janssen Pharmaceuticals, Inc. has consented to the jurisdiction of
Missouri courts by registering to do business and appointing an agent to accept service of process in
Missouri. [Doc. #10-3]; see Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196, 1199 (8th Cir. 1990)
(“Consent[,] the other traditional basis of jurisdiction, exist[s] independently of long-arm statutes . . . .
One of the most solidly established ways of giving such consent is to designate an agent for service of
process within the State.”); State ex rel. K-Mart Corp. v. Holliger, 986 S.W.2d 165, 168 (Mo. banc 1999)
(recognizing a foreign corporation’s authorization to do business and registration of an agent for service
in Missouri as a basis for personal jurisdiction independent of Missouri’s long-arm statute); see also
Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 170, 174 (1939); Ex parte Schollenberger, 96
U.S. 369, 376–77 (1877); Acorda Therapeutics, Inc. v. Mylan Pharms. Inc., Civ. No. 14-935 (LPS), 2015
WL 186833, at *12 (D. Del. Jan. 14, 2015) (“Daimler does not eliminate consent as a basis for a state to
establish general jurisdiction over a corporation which has appointed an agent for service of process in
that state, as is required as part of registering to do business in that state . . . . Consistent with Daimler,
it remains the law that general jurisdiction may be established by showing that a corporation is ‘at home’
in the sense described in detail in Daimler, or separately general jurisdiction may be established by a
corporation’s consent to such jurisdiction.”).

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Ortho-McNeil-Janssen Pharms., Inc., No. 4:14-CV-1485 (RWS), 2014 WL 5025833
(E.D. Mo. Oct. 8, 2014); Orrick v. Smithkline Beecham Corp., No. 4:13-CV-2149
(SNLJ), 2014 WL 3956547 (E.D. Mo. Aug. 13, 2014).
Rule 20 “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, 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); State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo. banc 979).

“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.”
1330, 1333 (8th Cir. 1974).

Mosley v. Gen. Motors Corp., 497 F.2d

Accordingly, Rule 20 “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.
“Under the Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims, parties and
remedies is strongly encouraged.” United Mine Workers v. Gibbs, 383 U.S. 715, 724
(1966).

Plaintiffs’ subjective intent in adding non-diverse parties is irrelevant to the

Court’s Rule 20 analysis.

As the Eighth Circuit has held, “if the nondiverse plaintiff is

a real party in interest, the fact that his joinder was motivated by a desire to defeat
federal jurisdiction is not material.”

Iowa Pub. Serv. Co., 556 F.2d at 404; id. at 406

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(“[I]f [a plaintiff] can avoid the federal forum by the device of properly joining a
nondiverse defendant or a nondiverse co-plaintiff, he is free to do so.”).
Plaintiffs’ claims satisfy Rule 20(a)’s standard.

First, plaintiffs’ complaint

raises common questions of law or fact regarding injuries alleged from use of the
same product and arising from the same design, testing, development, labeling,
packaging, distribution, marketing, and sales practices for that product.
Also, because plaintiffs’ allegations relate to defendants’ design, manufacture,
testing, and promotion of Risperidone—occurrences common as to all plaintiffs—their
claims also arise out of the same transaction or occurrence, or series thereof. That is
so even if the end-of-the-line exposures occurred in different states and under the
supervision of different medical professionals.

Thus, joinder of all sixty-four

plaintiffs’ claims under Rule 20(a) is proper.
*

*

*

For the reasons set forth above,
IT IS HEREBY ORDERED that plaintiffs’ motion for remand [Doc. #9] 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 4th day of May, 2015.

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