Dorman et al v. Bayer Corporation et al
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Remand [Doc. No. 17] 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). 17 Signed by District Judge Henry Edward Autrey on 11/2/16. cc: City of St. Louis(CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HANNA DORMAN, et al.,
Plaintiffs,
v.
BAYER CORP, et al.,
Defendants.
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No. 4:16CV601 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss, [Doc. No.
11] and Plaintiffs’ Motion to Remand [Doc. No. 17]. 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 fourteen causes of action against Defendants arising out of personal
injuries Plaintiffs allegedly sustained from being prescribed and implanted with the
Essure system of permanent birth control manufactured by Defendants. Plaintiffs
assert claims of negligence, negligence per se, strict products liability for failure to
warn, defective manufacturing, common law fraud, constructive fraud, fraudulent
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The Court has also considered the supplemental authority submitted by the
parties.
concealment, breach of express warranty, breach of implied warranty, violations of
consumer protection laws, Missouri Products liability, violation of the Missouri
Merchandising Practices Act, and gross negligence. The thirty two Plaintiffs
reside in 21 states, including Arizona, California, Colorado, Florida, Georgia,
Indiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New
Jersey, New York, North Carolina, Oklahoma, Pennsylvania, Texas, and Utah.
Defendant Bayer HealthCare LLC was a citizen of Delaware, California,
Pennsylvania, Germany, and the Netherlands for purposes of diversity jurisdiction
at the time the Petition was filed. Since April 21, 2016, it has been a citizen of
Delaware, New Jersey, Pennsylvania, Germany, and the Netherlands. Defendant
Bayer Essure Inc. is a Delaware corporation with its principal place of business at
the time the Petition was filed in California. See 28 U.S.C. § 1332(c). Because
Bayer Essure Inc.’s principal place of business has been in New Jersey since April
21, 2016, it is now a citizen of Delaware and New Jersey for diversity purposes. Id.
Bayer HealthCare Pharmaceuticals Inc. is a Delaware corporation with its principal
place of business in New Jersey. Bayer A.G. is a German corporation. Thus, for
diversity purposes, it is a citizen of Germany. See 28 U.S.C. § 1332(c).
On April 28, 2016, Defendants removed this action to this Court on the basis
of diversity jurisdiction under 28 U.S.C. § 1332(a) and federal question jurisdiction
under 28 U.S.C. § 1331.
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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. 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 not fraudulently joined. Furthermore, Plaintiffs contend there is no
federal question claims in their Petition.
Discussion
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
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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., Joseph v. Combe
Inc., No. 4:16CV284 RLW, 2016 WL 3339387, at *1–3 (E.D. Mo. June 13,
2016)(finding the issue of subject matter jurisdiction was a straightforward legal
issue that judges in this district had already addressed); 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 factintensive 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 of 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).
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“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 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. of Am., 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;see also
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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-ofstate 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 fraudulent joinder. See Joseph No. 4:16CV284
RLW, 2016 WL 3339387, at *1–3; Johnson v. Bayer, No. 4:16CV729 CEJ (May
26, 2016)(sua sponte finding that defendants failed to establish lack of diversity
and federal question jurisdiction); Triplett v. Janssen Pharms., Inc., No.
4:14CV02049AGF, 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. 4:15CV-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.
4:15CV340 CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9, 2015) (remanding
action because the defendants' only argument for fraudulent joinder of non6
Missouri plaintiffs was a procedural challenge to personal jurisdiction instead of a
substantive challenge to the viability of the claims). See, e.g., Robinson v. Pfizer,
Inc., No. 4:16CV439 CEJ, 2016 WL 1721143 (E.D. Mo. Apr. 29, 2016) (collecting
cases); Swann v. Johnson & Johnson, No. 4:14CV1546 CAS, 2014 WL 6850776
(E.D. Mo. Dec. 3, 2014) (declining to consider issues of personal jurisdiction and
venue when the issue of subject matter jurisdiction is straightforward and has
already been addressed by judges in this district). For the same reasons set forth in
the earlier cases, the plaintiffs’ claims here are neither fraudulently joined nor
misjoined and complete diversity is absent. See In re Prempro, 591 F.3d at 623.
Thus, removal cannot be based on diversity of citizenship.
As other courts in the Eastern District of Missouri have found on the same
issues this court finds that Defendants have failed to establish fraudulent joinder in
this case. 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); T.F. v. Pfizer, Inc., No. 4:12CV1221 CDP, 2012
U.S. Dist. LEXIS 101859, 2012 WL 3000229 (E.D. Mo. July 23, 2012) (Zoloft®).
Plaintiffs have filed suit against the Defendants for injuries caused by the same
contraception system and arising out of the same practices for those products such
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that common issues of law and fact are likely to arise in the litigation. See In re
Prempro, 591 F.3d at 623.
In the notice of removal, defendants also invoke federal question jurisdiction
pursuant to 28 U.S.C. § 1331, asserting that plaintiffs’ claims depend on the
resolution of a substantial, disputed federal question and the exercise of
jurisdiction will not disrupt the balance between federal and state jurisdiction
adopted by Congress. Federal district courts “have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. A claim “arises under” federal law if a federal question is presented
on the face of the well-pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S.
386, 392 (1987); Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808
(1986). “It is not enough that the plaintiff alleges some anticipated defense to his
cause of action, and asserts that the defense is invalidated by some provision of the
Constitution of the United States.” Louisville & Nashville R.R. Co. v. Mottley, 211
U.S. 149, 152 (1908).
Although federal question jurisdiction is generally invoked when a plaintiff
pleads a federal cause of action, “in certain cases federal-question jurisdiction will
lie over state-law claims that implicate significant federal issues.” Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005); see Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699 (2006) (describing these
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types of state law claims as a “special and small category”). The “mere presence”
of a federal issue in a state cause of action, however, “does not automatically
confer federal question jurisdiction.” Merrell Dow, 478 U.S. at 813. To be
removable, the state law claim must “necessarily raise a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without
disturbing any congressionally approved balance of federal and state judicial
responsibilities.” Grable, 545 U.S. at 314; see also Gunn v. Minton, 133 S. Ct.
1059, 1065 (2013) (“[F]ederal jurisdiction over a state law claim will lie if a
federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance
approved by Congress. Where all four of these requirements are met . . .
jurisdiction is proper . . . .”).
“The substantiality inquiry under Grable looks [] to the importance of the
issue to the federal system as a whole.” Gunn, 133 S. Ct. at 1066. The Supreme
Court has identified examples to assist in this inquiry. First, a question that the
government has a strong interest in litigating in a federal forum, such as the
compatibility of a federal agency’s action with a federal statute, is more likely to
be a substantial federal question. Grable, 545 U.S. at 315–16. Also, a pure question
of law that can be settled and thereafter would control numerous other cases is
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more likely to be a substantial federal question. Empire Healthchoice, 547 U.S. at
700–01.
Defendants contend that plaintiffs’ state law claims raise substantial federal
questions, because they are predicated on numerous alleged violations of federal
requirements. To avoid preemption of their state law claims, plaintiffs are required
to allege specific violations of federal requirements. The Medical Device
Amendments (MDA) to the Federal Food, Drug and Cosmetic Act (FDCA) contain
an express preemption provision, preventing states from imposing requirements on
medical devices “different from, or in addition to” those imposed by federal law.
21 U.S.C § 360k(a). However, the MDA “does not prevent a State from providing
a damages remedy for claims premised on a violation of FDA regulations; the state
duties in such a case are ‘parallel,’ rather than add to, federal requirements.” Riegel
v. Medtronic, Inc., 552 U.S. 312, 330 (2008) (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 495 (1996)). Thus, to escape express preemption, the plaintiff’s claim
must be for conduct that violates the FDCA. In re Medtronic, Inc., Sprint Fidelis
Leads Prods. Liab. Litig., 623 F.3d 1200, 1204 (8th Cir. 2010); see also WolickiGables v. Arrow Int’l, Inc., 634 F.3d 1296, 1301 (11th Cir. 2011) (“To properly
allege parallel claims, the complaint must set forth facts pointing to specific
[federal] requirements that have been violated.” (internal quotations and citation
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omitted)). Accordingly, the federal issues in the complaint were necessarily raised
and are actually disputed.
However, a federal issue that is necessarily raised and actually disputed
within a state law claim is insufficient by itself to grant federal jurisdiction over the
state law claim. The federal issue also must be substantial and capable of
resolution in federal court without disrupting the federal-state balance approved by
Congress. Gunn, 133 S. Ct. at 1065; Grable, 545 U.S. at 314. Congress specifically
declined to create a federal private cause of action under the FDCA. See Merrell
Dow, 478 U.S. at 814 (“[T]he congressional determination that there should be no
federal remedy for the violation of this federal statute is tantamount to a
congressional conclusion that the presence of a claimed violation of the statute as
an element of a state cause of action is insufficiently ‘substantial’ to confer federalquestion jurisdiction.”). Furthermore, Congress also declined to preempt all state
remedies or divest state courts of jurisdiction in the FDCA. This demonstrates that
the federal issues raised by plaintiffs’ state law claims are not capable of resolution
in federal court without disrupting the federal-state balance approved by Congress.
See Grable, 545 U.S. at 318 (“[T]he [Merrell Dow] Court treated the combination
of no federal cause of action and no preemption of state remedies for misbranding
as an important clue to Congress’ conception of the scope of jurisdiction to be
exercised under § 1331.”).
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Under the FDCA there is no federal cause of action, no preemption of all
state remedies, and state court jurisdiction remains. The Court finds that the federal
issues raised in plaintiffs’ complaint are not substantial, and accepting federal
jurisdiction would disrupt the federal-state balance contemplated by Congress.
Other courts have also rejected substantially similar arguments raised by
defendants in attempts to remove medical device products liability cases to federal
court. See, e.g., Carmine v. Poffenbarger, Case No. 1:15-CV-1207, 2015 WL
9581416 (E.D. Va. Dec. 29, 2015); Mihok v. Medtronic, Inc., 119 F. Supp. 3d 22
(D. Conn. 2015); Fenn v. Philips Elecs. N. Am. Corp., Civ. No. 14-96-DLB-JGW,
2015 WL 632154 (E.D. Ky. Feb. 13, 2015); Mauk v. Medtronic, Inc., 41 F. Supp.
3d 654 (W.D. Ky. 2014); Anders v. Medtronic, Inc., No. 4:14-CV-00194 (ERW),
2014 WL 162352 (E.D. Mo. Apr. 24, 2014); Goade v. Medtronic, Inc., No. 135123-CV-SW-ODS, 2013 WL 6237853 (W.D. Mo. Dec. 3, 2013). The Court
therefore also lacks federal question jurisdiction as a basis for removal.
Conclusion
Because no subject matter jurisdiction exists, this case must be remanded. 28
U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3); Wilkinson, 478 F.3d at 963.
Accordingly,
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IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand [Doc. No.
17] 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).
Dated this 2nd day of December, 2016.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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