Jones et al v. Bayer Corporation et al

Filing 46

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 16 ) is GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. A separate Order of Remand will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 12/14/2016. (GGB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACI JONES, et al.,

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Plaintiffs,
v.
BAYER CORPORATION, et al.,
Defendants.

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Cause No. 4:16CV1192 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand, filed August 1, 2016.
(ECF No. 16). The motion is fully briefed and ready for disposition.
BACKGROUND
On or about June 20, 2016, Plaintiffs filed their Petition for Damages in the Circuit Court
of the City of St. Louis, Missouri. (Petition for Damages (hereinafter “Complaint” or “Compl.”),
ECF No. 11). In total, there are 99 Plaintiffs joined to the action.1 Each Plaintiff claims that she
was prescribed and implanted with the Essure system of permanent birth control manufactured
by Defendants, and that as a result she “suffered and will continue to suffer from severe injuries
and damages, including but not limited to irregular heavy menstrual cycle bleeding, organ
perforation, and severe chronic pain which required surgical intervention to remove the Essure
coils or will require surgical intervention to remove the Essure coils in the future.” (Compl.,
¶¶ 464, 470-1036). These claims are alleged to be the result of Defendants’ illegal conduct,

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  Plaintiffs are residents of 28 states, including Alabama, Arizona, Arkansas, California,
Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland,
Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Wisconsin. (Compl., ¶¶ 63161). 

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including their “failure to warn of the risks, dangers, and adverse events associated with Essure
as manufactured, promoted, sold and supplied by both companies, and as a result of the
negligence, callousness, and other wrongdoing and misconduct of [Defendants] as described
herein….” (Id., ¶¶ 464, 465). Based on these allegations, Plaintiffs bring claims for negligence,
negligence per se, negligence-misrepresentation, strict liability-failure to warn, manufacturing
defect, common law fraud, constructive fraud, fraudulent concealment, breach of express
warranty, breach of implied warranty, violation of consumer protection laws, Missouri Products
liability, violation of the Missouri Merchandising Practices Acts, and gross negligence/punitive
damages. (Id., ¶¶ 1049-1268).
Defendants removed the action to this Court on July 20, 2016, on the basis of diversity
jurisdiction under 28 U.S.C. § 1332(a)2, federal question jurisdiction under 28 U.S.C. § 1331,
and diversity jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d).
(Notice of Removal, ECF No. 1). As noted above, Plaintiffs filed the instant Motion to Remand
on August 1, 2016, claiming Plaintiffs’ joinder in one action was proper, thus destroying
diversity jurisdiction, and no federal question arises from Plaintiffs’ Complaint.
DISCUSSION
A civil action brought in state court may be removed to the proper district court if the
district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). Removal statutes are
strictly construed, however, “and any doubts about the propriety of removal are resolved in favor
of state court jurisdiction and remand.” Manning v. Wal-Mart Stores East, Inc., 304 F. Supp. 2d

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 Defendants removed on the basis of diversity jurisdiction, despite the lack of complete diversity
on the face of the Complaint. In other words, according to Plaintiffs, Plaintiff Cherita Pierce and
Defendants Bayer Corporation and Bayer HealthCare LLC are all Pennsylvania residents,
Plaintiff Robin Melton and Defendant Bayer Corporation are both Indiana residents, and Plaintiff
Dinora Vargas and Defendants Bayer HealthCare LLC, Bayer Essure Inc., and Bayer HealthCare
Pharmaceuticals Inc. are all New Jersey residents. (Compl., ¶¶ 173-174). 

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1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain Underwriters at Lloyd’s of
London, 119 F.3d 619, 625 (8th Cir. 1997)). The party invoking federal jurisdiction and seeking
removal has the burden of establishing jurisdiction by a preponderance of the evidence. Central
Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th
Cir. 2009); see also Nicely v. Wyeth, Inc., 2011 WL 2462060, at *2 (E.D. Mo. Jun. 17, 2011).
I.

Diversity Of Citizenship Jurisdiction3
“Federal district courts have original jurisdiction in all civil actions between citizens of

different states if the amount in controversy exceeds $75,000.00, exclusive of interest and
costs.”4 Manning, 304 F. Supp. 2d at 1148 (citing 28 U.S.C. § 1332(a)(1)). The diversity
jurisdiction statute has been interpreted to require complete diversity, meaning “diversity
jurisdiction does not exist unless each defendant is a citizen of a different State from each
plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in
original); see also OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007)
(“Complete diversity of citizenship exists where no defendant holds citizenship in the same state

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  In their response to Plaintiffs’ Motion to Remand, Defendants urge this Court to consider the
issue of personal jurisdiction before addressing subject matter jurisdiction. The Supreme Court
has held that courts have discretion to consider the issue of personal jurisdiction before
considering whether they have subject matter jurisdiction, “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.” Dorman v. Bayer Corp., 2016 WL 7033765, at *1
(E.D. Mo. Dec. 2, 2016) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999)).
“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. (quoting Ruhrgas, 526 U.S. at 587-88)). See also Swann v.
Johnson & Johnson, 2014 WL 6850776, at *2 (E.D. Mo. Dec. 3, 2014) (declining to consider
issues of personal jurisdiction and venue when the issue of subject matter jurisdiction was
straightforward and had already been addressed by judges in this district). Upon consideration,
this Court in its discretion will determine the issue of subject matter jurisdiction first, as the
question of personal jurisdiction requires a more fact-intensive inquiry. Dorman, 2016 WL
7033765, at *1. 
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There is no dispute in this case that the amount in controversy exceeds $75,000.

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where any plaintiff holds citizenship.”). Despite the lack of compete diversity on the face of the
Complaint, Defendants assert diversity jurisdiction exists because this situation falls within the
contours of the fraudulent misjoinder doctrine, which, where it has been adopted, is an exception
to the requirement of complete diversity.
“Courts have long recognized fraudulent joinder as an exception to the complete diversity
rule.” In re Prempro Products Liability Litigation, 591 F.3d 613, 620 (8th Cir.) (citing 14B
Charles Alan Wright et al., Federal Practice and Procedure § 3723, at 788-89 (4th ed. 2009)),
cert. denied, 562 U.S. 963 (2010). “Fraudulent joinder occurs when a plaintiff files a frivolous or
illegitimate claim against a non-diverse defendant solely to prevent removal.” Id. (citation
omitted).
Fraudulent misjoinder is a more recent exception to the complete diversity rule. In re
Prempro, 591 F.3d at 620. “Fraudulent misjoinder ‘occurs when a plaintiff sues a diverse
defendant in state court and joins a viable claim involving a nondiverse party, or a resident
defendant, even though the plaintiff has no reasonable procedural basis to join them in one action
because the claims bear no relation to each other.’” Id. (quoting Ronald A. Parsons, Jr., Should
the Eighth Circuit Recognize Procedural Misjoinder?, 53 S.D. L.Rev. 52, 57 (2008)).
The Eighth Circuit in Prempro acknowledged the fraudulent misjoinder doctrine, but
declined either to adopt or reject it. See In re Prempro, 591 F.3d at 622. Instead, the Court
concluded that even if it were to adopt the doctrine, the facts of the case before it were not so
egregious as to warrant its application. Id. The court began its reasoning with the observation
that the Eighth Circuit uses a very broad definition for the term ‘transaction’, as that term applies
in the context of permissive joinder under Fed.R.Civ.P. 20. Id. Specifically, the term may be
understood to “‘comprehend a series of many occurrences, depending not so much upon the

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immediateness of their connection as upon their logical relationship.’” Id. (quoting Mosley v.
General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974)). The Prempro court continued to
find that the plaintiffs’ claims all arose from a series of transactions between hormone
replacement therapy (“HRT”) pharmaceutical manufacturers and individuals that used the drugs.
Id. at 623.

This finding was bolstered by the fact that the plaintiffs alleged (1) “the

manufacturers conducted a national sales and marketing campaign to falsely promote the safety
and benefits of HRT drugs and understated the risks of HRT drugs”; and (2) “they each
developed breast cancer as a result of the manufacturers’ negligence in designing,
manufacturing, testing, advertising, warning, marketing, and selling HRT drugs.” Id. The court
also found there were likely to be common questions of law and fact between the claims, such as
the causal link between HRT drugs and breast cancer. Id. Based on these findings, the Prempro
court was unable to conclude that the plaintiffs’ claims had “‘no real connection’ to each other
such that they [were] egregiously misjoined.” Id.
Upon consideration of the reasoning in Prempro, the Court finds application of the
fraudulent misjoinder doctrine to be inappropriate here as well. “As this Court has found in
several recent cases, the joinder of plaintiffs alleging injury from a single drug is not ‘egregious,’
because common issues of law and fact connect plaintiffs’ claims.” Spears v. Fresenius Medical
Care North America, Inc., 2013 WL 2643302, at *3 (E.D. Mo. Jun. 12, 2013) (collecting cases).
“Similarly, plaintiffs in this case have filed suit against defendants for injuries….caused by the
same product [Essure] and arising out of the same development, distribution, marketing, and
sales practices for that product, and common issues of law and fact are likely to arise in the
litigation.” Id. Thus, while Defendants are correct that there may be some differences between
Plaintiffs’ claims, the reasoning of Prempro compels the conclusion that the fraudulent

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misjoinder doctrine, even if adopted, is inapplicable.

Removal on the basis of diversity

jurisdiction thus was inappropriate, as complete diversity between the parties does not exist.
II.

Federal Question Jurisdiction

In their 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. Judges in this district have rejected this
argument in earlier cases, finding it to be nonmeritorious. See, e.g., Johnson v. Bayer Corp.,
2016 WL 3015187, at *2-3 (E.D. Mo. May 26, 2016); Dorman, 2016 WL 7033765, at *3-4. For
the same reasons set forth in the earlier cases, this Court finds the federal issues raised in
Plaintiffs’ Complaint are not substantial, and accepting federal jurisdiction would disrupt the
federal-state balance contemplated by Congress.

Thus, the Court lacks federal question

jurisdiction as a basis for removal.
III.

CAFA Jurisdiction

Under CAFA, a “mass action” is defined as “any civil action….in which monetary relief
claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’
claims involve common questions of law or fact…” 28 U.S.C. § 1332(d)(11)(B). In their Notice
of Removal, Defendants assert that “[t]he instant [Complaint], together with the petitions in
Dorman and Jones, establish a ‘mass action’ consisting of 226 plaintiffs.” (Notice of Removal, ¶
67).5

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In their response, Defendants maintain this action, when combined with Dorman and Tenny v.
Bayer Corp., 4:16CV1189 RLW, form a single mass action subject to federal jurisdiction under
CAFA.
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In order to propose a joint trial, 100 or more plaintiffs must either (1) be joined in a single
complaint, or (2) move to consolidate multiple complaints containing at least 100 plaintiffs, and
propose that they be tried jointly. See Scimone v. Carnival Corp., 720 F.3d 876, 881-82 (11th
Cir. 2013).

As noted above, Plaintiffs here number 99, thus failing to satisfy the first

prerequisite, and case law makes clear that separate multi-plaintiff cases may not be aggregated
to satisfy the 100 plaintiff requirement of the mass action provision of CAFA. See, e.g.,
Anderson v. Bayer Corp., 610 F.3d 390, 393-94 (7th Cir. 2010). Finally, Plaintiffs have not
moved to consolidate this case with others filed here, and Courts in this district have permitted
Plaintiffs to file separate cases, each containing fewer than 100 plaintiffs, in order to avoid
removal under CAFA. See, e.g., Hammonds v. Monsanto Co., 2011 WL 5554529, at *2 (E.D.
Mo. Nov. 15, 2011); Dublin v. Monsanto Co., 2011 WL 5330571, at *2-3 (E.D. Mo. Nov. 7,
2011); Walker v. Monsanto Co., 2011 WL 5330602, at *1-3 (Nov. 7, 2011). The Court thus
lacks CAFA jurisdiction as a basis for removal, and so Plaintiffs’ Motion to Remand will be
granted.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 16) is
GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State
of Missouri. A separate Order of Remand will accompany this Memorandum and Order.
Dated this

14th

Day of December, 2016.

\s\ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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