Mounce et al v. Bayer Healthcare LLC et al

Filing 39

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 18 ) is GRANTED. IT IS HEREBY ORDERED that this matter is remanded to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri. Signed by District Judge Ronnie L. White on December 13, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KELLY MOUNCE, et al.,

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

Case No. 4:16CV1478 RLW

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Motion to Remand (ECF No. 18). The
motion is fully briefed and ready for disposition.
BACKGROUND
Plaintiffs filed this action in the Circuit Court for the Twenty-Second Judicial Circuit, City
of St. Louis, State of Missouri, on July 5, 2016. Plaintiffs allege injuries resulting from Plaintiffs'
use ofEssure® permanent birth control system. Plaintiffs are citizens of the States of Arizona,
Arkansas, California, Colorado, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New Mexico,
New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Virginia, and
Wisconsin. Plaintiffs contend that there are several named plaintiffs that are not completely
diverse with defendants. As admitted by Defendants, Bayer Corporation is a citizen of Indiana
and Pennsylvania, and Defendant Bayer HealthCare LLC is a citizen of New Jersey and
Pennsylvania. Plaintiff Sheena Earl is a citizen oflndiana, Sarah Schulz-Arnold is a citizen of
Pennsylvania, and Jennifer Checkowski is a citizen of New Jersey. Plaintiffs allege claims for
negligence, strict liability, fraud, breach of warranty, violation of consumer protection laws,

Missouri products liability, and violation of the Missouri Merchandising Practices Act.
On September 19, 2016, Defendants removed this action to this Court on the basis of
diversity jurisdiction under 28 U.S .C. §1332(a), federal question jurisdiction under 28 U.S.C.
§ 1331 , and under the Class Action Fairness Act (CAF 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
presents the "simpler question." (ECF No. 26 at 6). Plaintiffs maintain that remand is
appropriate because complete diversity does not exist, and Plaintiffs' claims are not fraudulently
joined. Plaintiffs also contend that the Court does not have federal question jurisdiction.
Finally, Plaintiffs assert that removal under CAFA is not appropriate because the Court cannot
consider the pending petitions in Dorman and Jones to be tried in conjunction, and the Court
cannot aggregate these plaintiffs named in separate petition to create federal jurisdiction under
CAFA.

LEGAL STANDARD
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 of London, 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."

Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001) (citing See Ex Parte
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 subject-matter
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, 791F.2d611 , 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); 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-JanssenPharms. , 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).
The Court holds that there is not complete diversity on the face of the Petition and no basis
for fraudulentjoinder. "A defendant may remove a state law claim to federal court only ifthe
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 fraudulent joinder 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 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 joinder
of plaintiffs alleging injury from a single drug is not 'egregious,' because common issues oflaw
and fact connect the plaintiffs' claims." Robinson v. Pfizer Inc., No. 4:16-CV-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 contraception system and arising out of the same practices for those products. The Court
finds that common issues of law and fact are likely to arise in this litigation. See In re Prempro
Prod. Liab. Litig., 591 F.3d at 623. Therefore, the Court holds thatjoinder is proper and complete
diversity does not exist.
In the notice ofremoval, Defendants also invoke federal question jurisdiction pursuant to
28 U.S.C. §1331. Defendants contend that Plaintiffs' claims tum on whether Defendants violated
federal regulatory requirements. Defendants claim that Plaintiffs' right to relief depends on the
resolution of these alleged federal violations.
Under the well-pleaded complaint rule, a claim arises under federal law only if a federal
issue appears on the face of the plaintiff's well-pleaded complaint. See e.g. Oklahoma Tax

Comm'n v. Graham, 489 U.S. 838, 840-41 (1989). The proponents of federal jurisdiction bear
"the burden to establish federal subject matter jurisdiction," and "all doubts about federal
jurisdiction must be resolved in favor ofremand." Cent. Iowa Power Coop. v. Midwest Indep.
Transmission Sys. Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009); see also Moore v. Kansas
City Pub. Sch., 828 F.3d 687, 691 (8th Cir. 2016). " [T]he plaintiff is master of his claim and may
avoid federal removal jurisdiction by exclusive reliance on state law." M Nahas & Co., Inc. v.
First Nat'! Bank of Hot Springs, 930 F.2d 608, 611 (8th Cir. 1991). " [T]he mere presence of a
federal issue in a state cause of action does not automatically confer federal-question jurisdiction."
Merrell Dow Pharm. Inc. v. Thompson , 478 U.S. 804, 813 (1986). Rather, "the question is, does
a state-law claim 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 & Sons Metal Prod. , Inc. v. Darue Eng'g & Mfg. , 545
U.S. 308, 314 (2005); Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013) ("federal jurisdiction over a
state law claim will lie if a federal issue is: ( 1) necessarily raised, (2) actually disputed, (3)
substantial, and (4) capable ofresolution in federal court without disrupting the federal-state
balance approved by Congress").
Defendants contend that Plaintiffs' state law claims raise substantial federal questions
because they are predicated on numerous alleged violations of federal requirements. Defendants
assert that Plaintiffs must prove these federal violations in order to maintain their causes of action.
(ECF No. 26 at 13) (citing In re Medtronic, Inc., Sprint Fidelis Leads Prod. Liab. Litig., 623 F.3d
1200, 1204 (8th Cir. 2010) ("The plaintiff must be suing for conduct that violates the FDCA (or
else his claim is expressly preempted by § 360k(a) ... ").
Defendants' argument is misplaced. Plaintiffs' claims for Federal Food, Drug, and
Cosmetic ACT (FDCA) violations related to Essure® were necessary to escape preemption.

However, courts in this district have noted that the "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." Johnson v. Bayer Corp., No. 4:16-CV-729 (CEJ), 2016 WL 3015187, at
*3 (E.D. Mo. May 26, 2016); Dorman v. Bayer Corp, No. 4:16CV601HEA,2016 WL 7033765 , at
*4 (E.D. Mo. Dec. 2, 2016). Congress specifically declined to create a federal private cause of
action under the FDCA and declined to preempt all state remedies or to divest state courts of
jurisdiction under the FDCA. Id. at 9-10 (citing Merrell Dow Pharm. Inc. v. Thompson, 4 78 U.S.
804, 814 (1986) ("The assumed congressional determination to preclude federal private remedies
for violations of the FDCA is tantamount to a congressional conclusion that a claimed violation of
the statute as an element of a state cause of action is insufficiently "substantial" to confer
federal-question jurisdiction."); Dorman, 2016 WL 7033765, at *4. The Court holds that there is
no federal cause of action under the FDCA. The purported federal issues raised in Plaintiffs'
Complaint are not substantial and cannot form the basis for federal question jurisdiction. As held
by other courts, accepting federal jurisdiction in a medical device products liability case such as
this would disrupt the federal-state balance contemplated by Congress. Johnson, 2016 WL
3015187, at *3; Dorman, 2016 WL 7033765, at *4; 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). Therefore, the Court declines to find federal questionjurisdiction.

Finally, the Court holds that this case cannot be combined with Dorman v. Bayer Corp .,
4:16cv601 and Jones v. Bayer Corp. , 4:16cvl 192 to form a single mass action under CAFA. 1 See
28 U.S.C. §§1332(d)(l l )(B)(i), 1453(a). CAFA ' s "mass action" jurisdictional provision confers
federal jurisdiction over civil actions in which the amount in controversy exceeds $75,000 and the
"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)(l l)(B)(i).
Defendants note that the same Plaintiffs' counsel has filed nearly identical complaints on behalf of
a total of more than 100 plaintiffs. (ECF No. 26 at 16). Defendants argue that Plaintiffs should
not be permitted to avoid CAFA simply by dividing their plaintiffs into groups of less than 100 and
filing an identical complaint for each group. However, the Court agrees with the long line of
cases in this district permitting plaintiffs to file several separate cases, each containing fewer than
100 plaintiffs, to avoid removal as a mass action under CAFA. See Hammonds v. Monsanto Co.,
No. 4:11 CV 1660 DDN, 2011WL5554529, at *2 (E.D. Mo. Nov. 15, 2011) ("Defendants' theory
is contravened by the plain language of CAFA which, by its clear terms, restricts "mass actions" to
suits involving 100 or more plaintiffs."); Dublin v. Monsanto Co. , No. 4:11-CV-1659 CEJ, 2011
WL 5330571 , at *3 (E.D. Mo. Nov. 7, 2011) (case with 14 plaintiffs "does not satisfy the
requirements of a 'mass action'"); Walker v. Monsanto Co. , No. 4:1 l-CV-1654 CEJ, 2011 WL
5330602, at *3 (E.D. Mo. Nov. 7, 2011)(96 plaintiffs residing in 18 states); Stapleton et al. v.
Monsanto Co. et al. , 4:11CV1656 (AGF) (95 plaintiffs residing in 21 states); Nunn et al. v.
Monsanto Co. et al. , 4:11CV1657 (CEJ) (5 plaintiffs residing in 2 states); Rodriguez v. Monsanto
Co. , No. 4:11CV01658 AGF, 2011WL5245251 , at *3 (E.D. Mo. Nov. 2, 2011)(4 plaintiffs

1

Plaintiffs' counsel has filed other, nearly identical lawsuits: Tenny v. Bayer Corp., No.
4:16cv1189, Hall v. Bayer Corp., No. 4:16cv1523 , Dotson v. Bayer Corp. , No. 16cv1593, Tabor v.
Bayer Corp., No. 4:16cv1682, Hinton v. Bayer Corp. , No. 4:16cv1679, and McPeters v. Bayer
Corp., No. 4:16cv1680.

residing in California); Anders v. Medtronic, Inc., No. 4:14CV01637 ERW, 2014 WL 5320391, at
*4 (E.D. Mo. Oct. 17, 2014) ("Plaintiffs have not suggested a joint trial for Anders v. Medtronic,
Inc., Smith v. Medtronic, Inc., and Hendrich v. Medtronic, Inc., therefore, the Court finds this is

not a mass action. "). Plaintiffs have not joined 100 or more plaintiffs in a single complaint, nor
have Plaintiffs attempted to consolidate the Dorman and Jones actions. Therefore, the Court
holds that CAFA does not apply here and CAF A cannot form a basis for federal subject matter
jurisdiction. This case shall be remanded for further proceedings.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (ECF No. 18) is
GRANTED.
IT IS HEREBY ORDERED that this matter is remanded to the Circuit Court for the
Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri.

Dated thii3th day of December, 2016.

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RO

IE L. WHITE
UNITED STATES DISTRICT JUDGE