Johnson et al v. Bayer Corporation et al
MEMORANDUM AND ORDER: IT IS HEREBY 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 5/26/16. (JAB)(Remark:Copy mailed to Circuit Clerk for 22nd Judicial Circuit)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GLORIA JOHNSON, et al.,
BAYER CORP., et al.,
Case No. 4:16-CV-729 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court sua sponte to determine whether subject
matter jurisdiction exists in this case. See Fed. R. Civ. P. 12(h)(3).
On April 13, 2016, ninety-two plaintiffs from thirty states filed this action in
the Circuit Court of the City of St. Louis, Missouri, asserting various state law
causes of action arising out of the defendants’ manufacture, promotion and sale of
the medical device Essure. Plaintiffs allege that they were implanted with Essure
and subsequently had the device removed due to complications and injuries.
Plaintiffs assert claims of strict products liability, negligent failure to warn,
negligence in training physicians, negligence in manufacturing, negligence per se,
negligent misrepresentation, and breach of express warranty. Defendants removed
the action to this Court on the basis of diversity of citizenship jurisdiction, 28 U.S.C.
§ 1332, and federal question jurisdiction, 28 U.S.C. § 1331.
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. Liab. Litig., 591
F.3d 613, 619 (8th Cir. 2010).
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). Any doubts about the propriety of removal are
resolved in favor of remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
Diversity of Citizenship Jurisdiction
The defendants premise removal on diversity of citizenship jurisdiction.
Diversity jurisdiction 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). At the time the complaint was filed,
Pennsylvania, Germany, and the Netherlands.
defendant was a citizen of California.
At the time of removal, no
Five plaintiffs are citizens of California, two
plaintiffs are citizens of New Jersey, two plaintiffs are citizens of Pennsylvania, and
two plaintiffs are citizens of Indiana. Despite the lack of complete diversity on the
face of complaint, defendants state that diversity jurisdiction exists because the
out-of-state plaintiffs’ claims should be dismissed for lack of personal jurisdiction or
under the doctrine of forum non conveniens. Alternatively, defendants assert that
the out-of-state plaintiffs’ claims were either fraudulently joined or misjoined, and
thus the non-diverse plaintiffs’ citizenship should be ignored for purposes of
The Court has rejected these arguments in earlier cases, finding them to be
nonmeritorious. See, e.g., Robinson v. Pfizer, Inc., No. 4:16-CV-439 (CEJ), 2016
WL 1721143 (E.D. Mo. Apr. 29, 2016) (collecting cases); Swann v. Johnson &
Johnson, No. 4:14-CV-1546 (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.
Federal Question Jurisdiction
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
Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152
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
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.
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
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
more likely to be a substantial federal question. Empire Healthchoice, 547 U.S. at
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 Wolicki-Gables 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 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
Gunn, 133 S. Ct. at 1065; Grable, 545 U.S. at 314.
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
federal-question 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
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’s conception of the scope of
jurisdiction to be exercised under § 1331.”).
In sum, 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
This conclusion is supported by the well-reasoned opinions of other
courts, rejecting substantially similar arguments raised by defendants in attempts
to remove medical device products liability cases to federal court.
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. 13-5123-CV-SW-ODS, 2013 WL
6237853 (W.D. Mo. Dec. 3, 2013).
Thus, the Court also lacks federal question
jurisdiction as a basis for removal.
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. As this
case was only recently removed and plaintiffs have not incurred substantial
expenses as a result of the removal, the defendants will not be required to pay
costs. See 28 U.S.C. § 1447(c).
IT IS HEREBY 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 26th day of May, 2016.
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