Joseph et al v. Combe Incorporated et al

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 8 ) 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 Defendants' Motion to Dismiss (ECF No. 4 ) is DENIED without prejudice as moot. Signed by District Judge Ronnie L. White on June 13, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STAN JOSEPH, et al. ,
Plaintiffs,
V.

COMBE IN CORPORATED, et al.,
Defendants.

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No. 4:16CV284 RLW

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction and Failure to State a Claim (ECF No. 4) and Plaintiffs' Motion to Remand (ECF
No. 8). The motions are fully briefed and ready for disposition. 1
Background
Plaintiffs filed this action in the Circuit Court of the City of St. Louis alleging nine causes
of action against Defendants arising out of personal injuries Plaintiffs sustained from using Just
For Men® hair care and dye products. Plaintiffs assert claims of strict products liability for
defective manufacturing, strict products liability for design defect, strict products liability for
defect due to inadequate warning, strict products liability due to non-conformance with
representations, negligence, breach of express warranty, breach of implied warranty, negligent
representation and fraud, and punitive damages. (Pis. ' First Am. Pet., ECF No. 7) The twenty-

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The Court has also considered the supplemental authority submitted by the parties upon leave
of Court. In support of their Motion to Remand, Plaintiffs filed a Memorandum and Order of
Remand issued by U.S. District Judge Rodney W. Sippel on March 24, 2016, Curtis Henderson,
et al. v. Combe Incorporated, et al. , Case No. 4:16CV283 RWS, which is a substantially similar
case from this district. In support of their Motion to Dismiss, Defendants filed a case from the
United States District Court for the District of Massachusetts, In re Zofran Prods. Liab. Litig.
("Simmons ''), MDL No. 1:15-md-2657-FDS, 2016 WL 2349105 (D. Mass. May 4, 2016).

one Plaintiffs reside in multiple states, including Missouri, Louisiana, and New York.
Defendants are Delaware corporations with principle places of business in New York, Puerto
Rico, and Illinois.
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,2 Defendants contend that federal diversity jurisdiction exists because this
Court does not have personal jurisdiction over the non-Missouri Plaintiffs. 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. 3

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

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Eight Plaintiffs and Two Defendants share New York citizenship.
In their Notice of Removal, Defendants assert that they do not rely upon "fraudulent
misjoinder." However, the substance of their argument contained in both the Notice of Removal
and their Motion to Dismiss suggests otherwise. See, e.g. , Henderson, Case No. 4:16CV283
RWS.

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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
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. Hentzen 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., 591 F.3d 613, 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

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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
Business Men 's Assur. Co. ofAm., 992 F.3d 181 , 183 (8th Cir. 1993).

Courts have recognized that 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; 4 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 because the out-of-state
Plaintiffs cannot establish personal jurisdiction under Missouri law. (Defs.' Opp'n to Mot. to
Remand pp. 10-12, ECF No. 10)
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

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Fraudulent misjoinder, as opposed to fraudulent joinder, occurs when a plaintiff sues a diverse
defendant in state court then joins a viable claim against a nondiverse party even though the
claims are unrelated. In re Prempro, 591 F.3d at 620. The Eighth Circuit Court of Appeals has
declined to either adopt or reject the doctrine of fraudulent misjoinder, finding instead that the
alleged misjoinder of plaintiffs' claims involving hormone replacement therapy (HRT) drugs
was not so egregious as to establish fraudulent misjoinder. Id. at 622.
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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).
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 fraudulentjoinder in this case. 5 Courts in this
district have determined that the joinder of plaintiffs alleging injury from a single product is not
"egregious" because common issues of law and fact connect the plaintiffs' claims. See, e.g.,
Valle v. Ethicon, Inc., No. 4:13CV798 RWS, 2013 U.S. Dist. LEXIS 186552 (E.D. Mo. Apr. 29,
2013) (transvaginal mesh products); TF. v. Pfizer, Inc., No. 4:12CV1221CDP, 2012 U.S. Dist.
LEXIS 101859 (E.D. Mo. July 23, 2012) (Zoloft®).

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See, e.g., Beene v. Combe Inc., No. 4:16-CV-00282 JAR, 2016 U.S. Dist. LEXIS 69068 (E.D.
Mo. May 26, 2016); Shaver v. Combe Inc., No. 4:16-CV-00286 JAR, 2016 U.S. Dist. LEXIS
69071 (E.D. Mo. May 26, 2016; Thurman Thomas, et al. v. Combe Incorporated, et al., Case No.
4:16CV287 RWS, ECF No. 19; Henderson, Case No. 4:16CV283 RWS , ECF No. 10.
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Here, the Plaintiffs have filed suit against the Defendants for injuries caused by the same
Just for Men® hair care and dye products and arising out of the same practices for those products
such that common issues of law and fact are likely to arise in the litigation. See In re Prempro,
591 F.3d at 623 (finding defendants failed to establish plaintiffs' claims were egregiously
misjoined where the claims arose from a series of transactions between HRT manufacturers and
users of HRT; the claims were logically related because plaintiffs' developed breast cancer as a
result of defendants' negligence; and the nature of the claims likely contained common questions
of law and fact). 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. 8) 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 Defendants' Motion to Dismiss (ECF No. 4) is
DENIED without prejudice as moot.
Dated this 13th day of June, 2016.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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