Spann et al v. Boehringer Ingelheim Pharmaceuticals, Inc. et al

Filing 27

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, State of Missouri, from which it was removed, under 28 U.S.C. § 1447(c). An appropriate Order of Remand will accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on December 14, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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DEBBI SPANN, et al. ,
Plaintiffs,
v.

BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC. , et al. ,
Defendants.

No. 4:16CV902 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Motion to Remand (ECF No. 8). The
motion is fully briefed and ready for disposition.

BACKGROUND
Seventy-seven Plaintiffs filed this action in the Circuit Court for the Twenty-Second
Judicial Circuit, City of St. Louis, State of Missouri, on April 27, 2016. Plaintiffs allege injuries
resulting from Plaintiffs' use of Pradaxa®. Plaintiffs are citizens of a number of states, including
Missouri, Delaware, and Ohio. Plaintiffs contend that there are several named Plaintiffs that are
not completely diverse with defendants. As admitted by Defendants, Boehringer Ingelheim
Pharmaceuticals, Inc. ("BIPI") is a citizen of Delaware and Connecticut, and Defendant WestWard Columbus, Inc., formerly known as and identified in the Petition as Defendant "Boehringer
Ingelheim Roxane, Inc." is a citizen of the states of Delaware and Ohio. Plaintiff Joseph Stanley
Price is a citizen of Delaware, and Plaintiff Edwin Benson is a citizen of Ohio. 1 Plaintiffs allege

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Plaintiffs note in their Memorandum in Support of Motion to Remand that several other
Plaintiffs, both individually and as representatives for decedents, also share Ohio citizenship with
Defendant Boehringer Ingelheim Roxane, Inc. (ECF No . 9 at 2-3). Defendants acknowledge this

claims for strict product liability, negligence, breach of express and implied warranties,
misrepresentation, unjust enrichment, gross negligence, wrongful death, and survival actions.
On June 20, 2016, Defendants removed this action to this Court on the basis of diversity
jurisdiction under 28 U.S.C. § 1332(a). Although there appears to be a lack of complete diversity
based upon the face of the Petition, Defendants argue that they are not subject to personal
jurisdiction with respect to the non-Missouri Plaintiffs' claims. Defendants further assert that
personal jurisdiction should be resolved before subject matter jurisdiction because it does not
raise any complex question of state law (ECF No. 15 at 6). Defendants also argue that the
joinder of non-Missouri Plaintiffs is fraudulent and a sham. (ECF No. 15 at 11-12) Plaintiffs
maintain that remand is appropriate because complete diversity does not exist, and Plaintiffs'
claims are not fraudulently joined.
LEGAL STAND ARD

Removal statutes are strictly construed, and any doubts about the correctness of removal
are resolved in favor of state court jurisdiction and remand. See Shamrock Oil & Gas Corp. v.

Sheets, 313 U.S. 100, 108-09 (1941); In re Bus. Men 's Assurance Co. ofAm., 992 F.2d 181 , 183
(8th Cir. 1993); Manning v. Wal-Mart Stores East, Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo.
2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd's ofLondon, 119 F.3d 619, 625
(8th Cir. 1997)). A civil action brought in state court may be removed to the proper district court
ifthe district court has original jurisdiction of the action. 28 U.S.C. § 1441(a).
DISCUSSION
" It is axiomatic that a court may not proceed at all in a case unless it has jurisdiction."

Crawfordv. F. Hoffman-La Roche Ltd. , 267 F.3d 760, 764 (8th Cir. 2001) (citing See Ex Parte
oversight in their response in opposition (ECF No. 15 at 3 n.3).
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McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868). 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, the Supreme Court has held that

If personal jurisdiction raises "difficult questions of [state] law," and subjectmatter jurisdiction is resolved "as eas[ily]" as personal jurisdiction, a district court
will ordinarily conclude that "federalism concerns tip the scales in favor of
initially ruling on the motion to remand."

Ruhrgas AG, 526 U.S. at 586 (citing Allen v. Ferguson, 791 F.2d 611, 616 (C.A.7 1986)). "[I]n
most instances subject-matter jurisdiction will involve no arduous inquiry." Ruhrgas AG, 526
U.S. at 587. "In such cases, 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., Joseph v. Combe

Inc., No. 4:16CV284 RLW, 2016 WL 3339387, at *1 (E.D. Mo. June 13, 2016); Adler v.
Boehringer Ingelheim Pharms., Inc., No. 4:16 CV 155 RWS, 2016 U.S. Dist. LEXIS 111100, at
*6 (E.D . Mo. March 28, 2016) (exercising discretion to determine subject matter jurisdiction first
where the inquiry was not arduous); 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
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more fact-intensive inquiry); Butler v. Ortho-McNeil-Janssen Pharms., Inc., No. 4:14CV1485
RWS, 2014 WL 5025833, at *I (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).
The Court holds that there is not complete diversity on the face of the Petition and no
basis for fraudulent joinder. "A defendant may remove a state law claim to federal court only if
the action originally could have been filed there." In re Prempro Prod. Liab. Litig. , 591 F.3d
613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). 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." OnePoint Solutions, LLC v. Borchert, 486
F.3d 342, 346 (8th Cir. 2007).
Courts, however, "have long recognized fraudulentjoinder as an exception to the
complete diversity rule." In re Prempro Prod. Liab. Litig., 591 F.3d at 620. "Fraudulentjoinder
occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse defendant
solely to prevent removal." Id. (citing Filla v. Norfolk S. Ry. Co. , 336 F.3d 806, 809 (8th Cir.
2003)). "When determining if a party has been fraudulently joined, a court considers whether
there is any reasonable basis in fact or law to support a claim against a nondiverse defendant."
Id. (citing Wilkinson v. Shackelford, 478 F.3d 957, 964 (8th Cir. 2007)). Here, Defendants argue

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that the non-Missouri citizen Plaintiffs are :fraudulently joined with the Missouri Plaintiffs
because the out-of-state Plaintiffs cannot establish personal jurisdiction under Missouri law.
Courts in this district have consistently held that an alleged lack of personal jurisdiction
does not establish fraudulentjoinder. Joseph, 2016 WL 3339387, at *2; Triplett v. Janssen
Pharms., Inc., No. 4:14-CV-02049-AGF, 2015 U.S. Dist. LEXIS 160580, at *13 (E.D. Mo. July
7, 2015); Gracey v. Janssen Pharms., Inc., No. 4:15-CV-407 CEJ, 2015 WL 2066242, at *3
(E.D. Mo. May 4, 2015); Simmons v. Skechers USA, Inc., No. 4:15-CV-340-CEJ, 2015 WL
1604859, at *3 (E.D. Mo. Apr. 9, 2015). "On numerous occasions, this Court has determined
that the j oinder of plaintiffs alleging injury from a single drug is not ' egregious,' because
common issues of law and fact connect the plaintiffs' claims." Robinson v. Pfizer Inc., No. 4:16CV-439 (CEJ), 2016 WL 1721143, at *4 (E.D. Mo. Apr. 29, 2016) (collecting cases). The Court
follows the approach taken by the district courts in the Eastern District of Missouri, holds that
Plaintiffs' claims are not fraudulently joined, and finds that complete diversity is absent. See In
re Prempro Prod. Liab. Litig., 591 F.3d at 623. Plaintiffs have filed suit against Defendants for
injuries caused by the same drug, Pradaxa®, and arising out of the same use of those products.
The Court finds that common issues of law and fact are likely to arise in this litigation. 2 See Jn
re Prempro Prod. Liab. Litig., 591 F.3d at 623. Therefore, the Court holds thatjoinder is proper
and complete diversity does not exist. This case shall be remanded for further proceedings.

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Courts in this district faced with the identical product and identical issues have remanded the
cases to the Circuit Court of the City of St. Louis, Missouri for lack of jurisdiction. See, e.g.,
Love v. Boehringer Ingelheim Pharms., Inc., No. 4:16 CV 1304 RWS; Fahnestockv. Boehringer
Jngelheim Pharms., Inc., No. 4:16-CV-1013 (CEJ), 2016 WL 4397971, at *3 (E.D. Mo. Aug. 18,
2016) (finding defendants failed to meet their burden to establish that plaintiffs' claims were
:fraudulently joined such that subject-matter jurisdiction was lacking); Adler, 2016 U.S. Dist.
LEXIS 111100, at *8 (declining to find misjoinder where common issues of law and fact were
likely to arise and remanding to the state court).
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According! y,

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, State of Missouri, from which it was
removed, under 28 U.S .C. § 1447(c). An appropriate Order of Remand will accompany this
Memorandum and Order.
Dated this 14th day of December, 2016.

~L/t!/ih

R ( ) EL. WHITE
UNITED STATES DISTRICT JUDGE

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