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

Filing 34

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 16 ) is GRANTED. IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, Missour i, from which it was removed, under 28 U.S.C. § 1447(c). An appropriate Order of Remand will accompany this Memorandum and Order. IT IS FURTHER ORDERED that all pending motions in this case (ECF Nos. 2 , 4 ) are DENIED without prejudice. Signed by District Judge Ronnie L. White on 5/26/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DEWAYNE NICKERSON, et al.,
Plaintiffs,
v.

JANSSEN PHARMACEUTICALS, INC., et al.,
Defendants.

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No. 4:15CV1762 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs' Motion to Remand to the Twenty-Second
Judicial Circuit, City of St. Louis, Missouri. (ECF No. 16) The motion is fully briefed and
ready for disposition. For the following reasons, the motion will be granted.
Background

Plaintiffs filed this action in the Circuit Court of the City of St. Louis on October 27,
2015, alleging 11 causes of action against Defendants arising out of injuries Plaintiffs sustained
as a result of their ingestion of the diabetes drug, Invokana. Plaintiffs assert claims of strict
product liability for design defect, strict product liability for failure to warn, willful and wanton
conduct or gross negligence, negligence, breach of express warranty, breach of implied warranty,
fraudulent misrepresentation, negligent misrepresentation, negligent design, fraudulent
concealment, and fraud. The twenty-six Plaintiffs reside in multiple states, including Missouri,
New Jersey, and Pennsylvania. Defendants are citizens of New Jersey, Pennsylvania, and Japan.
On November 30, 2015, Defendants removed this action to federal court on the basis of
diversity jurisdiction under 28 U.S.C. § 1332(a). Despite the lack of complete diversity on the
face of the Petition, Defendants contend that federal diversity jurisdiction exists because this

Court does not have personal jurisdiction over the non-Missouri Plaintiffs, including the single
Plaintiff from New Jersey and the single Plaintiff from Pennsylvania. Defendants urge the Court
to rule on the personal jurisdiction issue before addressing the issue of subject matter
jurisdiction. Plaintiffs move to remand this case to the Circuit Court of the City of St. Louis,
Missouri, because complete diversity does not exist, and Plaintiffs' claims are neither
fraudulently joined nor fraudulently misjoined.

Discussion
At the outset, the Court declines to rule on the personal jurisdiction first. A district court
may not proceed in a case unless it has jurisdiction. Crawford v. F. Hoffman-La Roche, Ltd, 267
F.3d 760, 764 (8th Cir. 2001). Under Supreme Court precedent set forth in Ruhrgas AG v.

Marathon Oil Co., 526 U.S.574 (1999), a Court has discretion to consider personal jurisdiction
first where personal jurisdiction is straightforward and presents no complex question of state law,
and the alleged defect in subject matter jurisdiction raises a difficult question. Id. at 588; see

also Crawford, 267 F.3d at 764 (" [C]ertain threshold questions, such as personal jurisdiction,
may be taken up without a finding of subject-matter jurisdiction, provided that the threshold
issue is simple when compared to the issue of subject-matter jurisdiction."). However, "in most
instances subject-matter jurisdiction will involve no arduous inquiry ... [and] both expedition
and sensitivity to state courts' coequal stature should impel the federal court to dispose of that
issue first." Id. at 587-88 . Courts in this district addressing the same issue have found that
personal jurisdiction requires a more fact-intensive inquiry than the straightforward issue of
subject-matter jurisdiction. See, e.g. , Morgan v. Janssen Pharms., Inc., No . 4:14-CV-1346 CAS,
2014 WL 6678959, at *2 (E.D. Mo. Nov. 25 , 2014) (finding the issue of subject matter
jurisdiction in an action arising from the drug Risperidone was a straightforward legal issue that

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judges in this district had already addressed and that issues of personal jurisdiction required a
more fact-intensive inquiry); Butler v. Ortho-McNeil-Janssen Pharms., Inc., No. 4:14CV1485
RWS, 2014 WL 5025833 , at *1 (E.D. Mo. Oct. 8, 2014) (declining to rule on issues of personal
jurisdiction first because the subject matter jurisdiction issue was not arduous). Thus, the Court
in its discretion will first determine the issue of subject matter jurisdiction, as the question
personal jurisdiction requires a more fact-intensive inquiry. See Dever v. Bentzen Coatings, Inc.,
380 F.3d 1070, 1072-73 (8th Cir. 2004) (noting a determination of personal jurisdiction requires
looking at affidavits and exhibits in addition to the face of the pleadings).
"A defendant may remove a state law claim to federal court only if the action originally
could have been filed there." In re Prempro Prods. Liab. Litig., 591F.3d613 , 619 (8th Cir.
2010) (citation omitted). Under 28 U.S.C. § 1332(a), a district court has original jurisdiction
over a civil action where the amount in controversy exceeds the sum of $75 ,000 and there is
complete diversity of citizenship between the litigants. "Complete diversity of citizenship exists
where no defendant holds citizenship in the same state where any plaintiff holds citizenship."

One Point Sols., LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citation omitted). In
removal cases, the Court reviews the state court petition and the notice of removal in order to
determine whether it has jurisdiction. Branch v. Wheaton Van Lines, Inc., No. 4:14-CV-01735,
2014 WL 6461372, at *1 (E.D. Mo. Nov. 17, 2014). "Where the defendant seeks to invoke
federal jurisdiction through removal, ... , it bears the burden of proving that the jurisdictional
threshold is satisfied." Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009) (citation omitted).
District courts are to resolve all doubts regarding federal jurisdiction in favor of remand. In re

BusinessMen 'sAssur. Co. ofAm., 992F.3d 181 , 183 (8th Cir. 1993).

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There is no dispute that Plaintiff Roxanne Horbatuck is a citizen of New Jersey, and
Plaintiff George Fentzlaff is a citizen of Pennsylvania, thereby defeating diversity jurisdiction.
However, an exception to the complete diversity requirement exists where "a plaintiff files a
frivolous or illegitimate claim against a non-diverse defendant solely to prevent removal." In re

Prempro, 591 F.3d at 620; see also Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 ("Where
applicable state precedent precludes the existence of a cause of action against a defendant,
joinder is fraudulent. ") In the instant case, Defendants argue that the non-Missouri citizens in
this case are fraudulently joined with the Missouri Plaintiffs and that such joinder is a sham.
Specifically, Defendants assert that the non-Missouri Plaintiffs' claims are not viable under
Missouri law because those Plaintiffs cannot establish personal jurisdiction under Missouri law.
In this district, courts have consistently held that an alleged lack of personal jurisdiction
does not establish fraudulentjoinder. See Triplett v. Janssen Pharms., Inc., No. 4:14-CV-02049AGF, 2015 U.S. Dist. LEXIS 160580, at *13 (E.D. Mo. July 7, 2015) (finding defendants failed
to satisfy their burden to establish fraudulent joinder because the fraudulent joinder doctrine
requires the court to consider the merits of plaintiffs' claims under state law, and a personal
jurisdiction challenge does not go to the merits of the claim); Gracey v. Janssen Pharms., Inc.,
No. 4:15-CV-407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4, 2015) (rejecting defendants'
attempt to premise a fraudulent joinder argument on the state court' s alleged lack of personal
jurisdiction); Simmons v. Skechers USA, Inc., No. 4:15-CV-340-CEJ, 2015 WL 1604859, at *3
(E.D. Mo. Apr. 9, 2015) (remanding action because the defendants' only argument for fraudulent
joinder of non-Missouri plaintiffs was a procedural challenge to personal jurisdiction instead of a
substantive challenge to the viability of the claims).

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In support of their fraudulentjoinder argument, Defendants rely on cases from other
jurisdictions to assert that a party' s fraudulentjoinder can be premised on a lack of personal
jurisdiction. The Court finds these cases unpersuasive. Decisions from other district courts
outside the Eighth Circuit "are not sufficient indicators that the Eighth Circuit Court of Appeals
is likely to alter a precedent that has been applied consistently in the Eighth Circuit." Hogans v.

Johnson & Johnson , No. 4:14-CF-1385, 2014 WL 4749162, at *3 (E.D. Mo. Sept. 24, 2014).
Thus, the Court follows the approach taken by district courts in the Eastern District of Missouri
and finds that Defendants have failed to establish fraudulent joinder in this case. Therefore, "the
Court must remand this matter for lack of subject matter jurisdiction and leave to the state court
the question of personal jurisdiction." Triplett, 2015 U.S. Dist. LEXIS 160580, at *13.
Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 16) is
GRANTED.
IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for
the Twenty-Second Judicial Circuit, City of St. Louis, Missouri, from which it was removed,
under 28 U.S.C. § 1447(c). An appropriate Order of Remand will accompany this Memorandum
and Order.

IT IS FURTHER ORDERED that all pending motions in this case (ECF Nos. 2, 4) are
DENIED without prejudice.
Dated this 26th Day of May, 2016.

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RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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