T.R. et al v. Janssen Pharmaceuticals, Inc. et al

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs' motion to remand [Doc. # 10 ] is granted. IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter to the Twenty-Second Judicial Circuit (City of St. Louis) from which it was removed. IT IS FURTHER ORDERED that defendants' motion to dismiss [Doc. # 4 ] is moot. Signed by District Judge Carol E. Jackson on 2/7/2017. (Certified Copy of Order and Docket Sheet mailed) (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
T.R., et al.,
Plaintiffs,
vs.
JANSSEN PHARMACEUTICALS, INC.,
et al.,
Defendants.

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Case No. 4:16-CV-1860 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand this action to
the state court pursuant to 28 U.S.C. § 1447(c). Defendants have responded in
opposition, and the issues are fully briefed.
I.

Background
Plaintiffs initiated this action in the Circuit Court of the City of St. Louis,

Missouri, asserting claims arising out of defendants’ design, manufacture, sale,
marketing, advertising, promotion, and distribution of Risperdal (risperidone) and
Invega (paliperidone). Plaintiffs allege that use of Risperdal or Invega caused rapid
weight

gain,

hyperprolactinemia,

gynecomastia,

galactorrhea,

and

tardive

dyskinesia, among other health conditions. Plaintiffs assert claims of (1) strict
products liability, (2) negligence, (3) failure to warn, (4) breach of warranty of
merchantability, (5) breach of express warranty, (6) breach of implied warranty,
(7) fraud, and (8) negligent misrepresentation.
On November 23, 2016, defendants removed the action to this Court on the
basis of diversity jurisdiction, 28 U.S.C. § 1332. Defendant Janssen Pharmaceuticals
is a Pennsylvania corporation with its principal place of business in New Jersey.

Defendant Janssen L.P. was a Pennsylvania organization.1 Defendant Johnson &
Johnson is a citizen of New Jersey. Defendant Janssen Research & Development,
LLC, a New Jersey limited liability company, and has one member corporation – a
Pennsylvania corporation with a principal place of business in Pennsylvania. In
short, defendants are citizens of New Jersey and Pennsylvania. Plaintiffs are citizens
of Missouri, New Jersey, Indiana, Alabama, Kentucky, Wisconsin, Texas, West
Virginia, Idaho, California, and Nevada.
Despite the lack of complete diversity on the face of the complaint,
defendants argue that the case should not be remanded.

Defendants urge the

Court to first resolve “straightforward questions of personal jurisdiction,” which,
purportedly, would eliminate the non-diverse plaintiffs’ claims. [Doc. # 20 at p. 2].
In the alternative, defendants maintain that subject-matter jurisdiction exists
because the non-diverse plaintiffs’ claims are fraudulently joined. Plaintiffs counter
that the non-diverse plaintiffs’ claims are properly joined, and the Court lacks
subject matter jurisdiction over this action in the absence of complete diversity of
the parties.
II.

Legal Standard
“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) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.
2005)). Moreover, the removing 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). “All doubts about federal jurisdiction should be
1

According to defendants, defendant Janssen L.P. “was canceled in 2007.” [Doc. #1 at 9].

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resolved in favor of remand to state court.” In re Prempro, 591 F.3d at 620 (citing
Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007)). A case must be
remanded if, at anytime, it appears that the district court lacks subject-matter
jurisdiction. 28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
III.

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). “The requirement that jurisdiction be established as a threshold matter
‘spring[s] from the nature and limits of the judicial power of the United States,’ and
is ‘inflexible and without exception.’” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 94–95 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379,
382 (1884)). Defendants argue that, in this case, the Court should dismiss the
claims of the non-Missouri plaintiffs for lack of personal jurisdiction before
addressing subject matter jurisdiction.2
Under Ruhrgas AG v. Marathon Oil Co., the Court has discretion to determine
whether to consider its subject-matter jurisdiction or personal jurisdiction first. 526
U.S. 574, 578 (1999) (holding that “[c]ustomarily, a federal court first resolves
doubts about its jurisdiction, but there are circumstances in which a district court
appropriately accords priority to a personal jurisdiction inquiry,” or otherwise
stated, “there is no unyielding jurisdictional hierarchy”). “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

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Defendants do not dispute that this Court has personal jurisdiction with respect to the claims of the
Missouri plaintiffs. They contend, however, that the non-Missouri plaintiffs cannot piggyback on this
personal jurisdiction.

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‘federalism concerns tip the scales in favor of initially ruling on the motion to
remand.’” Id. at 586 (quoting Allen v. Ferguson, 791 F.2d 611, 616 (7th Cir.
1986)). Notably, however, “in most instances subject-matter jurisdiction will
involve no arduous inquiry.” Id. at 587.
Courts in this district addressing similar personal-jurisdiction arguments have
found it appropriate to address the issue of subject matter jurisdiction first. See,
e.g., Hall v. Bayer Corp., No. 4-16-CV-1523 (CEJ), 2017 WL 86011 (E.D. Mo. Jan.
10, 2017); Mcpeters v. Bayer Corp., No. 4:16-CV-1680 (SPM), 2017 WL 57250
(E.D. Mo. Jan. 5, 2017); Dotson v. Bayer Corp., 4-16-CV-1593 (PLC), 2017 WL
35706 (E.D. Mo. Jan. 4, 2017); Spann v. Boehringer Ingelheim Pharm., Inc., No.
4:16-CV-902 (RLW), 2016 WL 7243535 (E.D. Mo. Dec. 14, 2016); Mounce v. Bayer
Corp., No. 4:16-CV-1478 (RLW), 2016 WL 7235707 (E.D. Mo. Dec. 13, 2016);
Dorman v. Bayer Corp., No. 4:16-CV-601 (HEA), 2016 WL 7033765 (E.D. Mo. Dec.
2, 2016); Fahnestock v. Boehringer Ingelheim Pharm., Inc., No. 4:16-CV-1013
(CEJ), 2016 WL 4397971 (E.D. Mo. Aug. 18, 2016); Timms v. Johnson & Johnson,
No. 4:16-CV-733 (JAR), 2016 WL 3667982 (E.D. Mo. July 11, 2016); Joseph v.
Combe Inc., No. 4:16-CV-284 (RLW), 2016 WL 3339387 (E.D. Mo. June 13, 2016);
Nickerson v. Janssen Pharm., Inc., No. 4:15-CV-1762 (RLW), 2016 WL 3030241
(E.D. Mo. May 26, 2016); Adler v. Boehringer Ingelheim Pharm., Inc., No. 4:16-CV155 (RWS), Memorandum and Order (E.D. Mo. Mar. 28, 2016) [Doc. #18]; Clark v.
Pfizer, No. 4:15-CV-546 (HEA), 2015 WL 4648019 (E.D. Mo. Aug. 5, 2015); Parker
v. Pfizer, Inc., No. 4:15-CV-441 (CAS), 2015 WL 3971169 (E.D. Mo. June 30,
2015); Littlejohn v. Janssen Research & Dev., LLC, No. 4:15-CV-194 (CDP), 2015
WL 1647901 (E.D. Mo. Apr. 13, 2015).

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For their part, defendants cite only one case from the Eighth Circuit in which
the court reached the opposite conclusion and decided personal jurisdiction first –
Addelson v. Sanofi, 4:16-CV-1277 (ERW), 2016 WL 6216124 (E.D. Mo. Oct. 25,
2016). But after considering the complexity of the personal jurisdiction inquiry, and
in light of the overwhelming consensus in this district, the Court respectfully
disagrees with Addelson. See Spann v. Boehringer Ingelheim Pharm., Inc., No.
4:16-CV-902 (RLW), 2016 WL 7243535, at *2 (E.D. Mo. Dec. 14 2016) (reasoning
that issues of personal jurisdiction require a more fact-intensive analysis). Where,
as here, the inquiry into subject matter jurisdiction is not arduous, the better
course is to address that issue first. See id. at 587–88 (“[B]oth expedition and
sensitivity to state courts’ coequal stature should impel the federal court to dispose
of [subject matter jurisdiction] first.”) Accordingly, the Court is not persuaded by
defendants’ arguments, and finds that it is appropriate to determine whether it has
subject matter jurisdiction before addressing the issue of personal jurisdiction.
A.

Diversity Jurisdiction

Diversity jurisdiction under 28 U.S.C. § 1332 requires an amount in
controversy greater than $75,000, exclusive of interest and costs, and complete
diversity of citizenship among 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). In this case, defendants argue that diversity jurisdiction is not defeated
because the non-diverse plaintiffs are fraudulently joined – that is, the Court does
not have personal jurisdiction over defendants for the claims brought by the nonMissouri plaintiffs.

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The doctrine of fraudulent joinder is an exception to the complete diversity
rule. In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). “The
doctrine of fraudulent joinder allows a district court to assume jurisdiction over a
facially nondiverse case temporarily and, if there is no reasonable basis for the
imposition of liability under state law, dismiss the nondiverse party from the case
and retain subject matter jurisdiction over the remaining claims.” Murphy v. Aurora
Loan Servs., LLC, 699 F.3d 1027, 1031 (8th Cir. 2012), as corrected (Nov. 28,
2012).
“Fraudulent joinder occurs when 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. To prove fraudulent joinder, the removing party must show that
“the plaintiff’s claim against the diversity-destroying defendant has ‘no reasonable
basis in fact and law.’” Knudson v. Sys. Painters, Inc., 634 F.3d 968, 980 (8th Cir.
2011) (quoting Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003)). In
other words, “if it is clear under governing state law that the complaint does not
state a cause of action against the non-diverse defendant, the joinder is
fraudulent.”

Id.

(emphasis in original) (internal quotation marks omitted).

Conversely, “joinder is not fraudulent where ‘there is arguably a reasonable basis
for predicting that the state law might impose liability based upon the facts
involved.’” Id. (quoting Filla, 336 F.3d at 811). Ergo, the Eighth Circuit has noted
that “[f]raudulent joinder is not easily shown by the defendant or lightly found by
the district court.” Vang v. PNC Mortg., Inc., 517 Fed. Appx. 523, 524 (8th Cir. May
22, 2013) (unpublished per curiam). Indeed “the defendant must ‘do more than
merely prove that the plaintiff’s claim should be dismissed pursuant to a Rule

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12(b)(6) motion’ since ‘we do not focus on the artfulness of the plaintiff’s
pleadings.’” Block v. Toyota Motor Corp., 665 F.3d 944, 948 (8th Cir. 2011)
(quoting Knudson, 634 F.3d at 980).
Courts in this district have repeatedly held that an alleged lack of personal
jurisdiction does not establish fraudulent joinder. See Mounce v. Bayer Corp., No.
4:16-CV-1478 (RLW), 2016 WL 7235707, at *3 (E.D. Mo. Dec. 13, 2016); Adler v.
Boehringer Ingelheim Pharm., Inc., No. 4:16-CV-155 (RWS), Memorandum and
Order, at 4 (E.D. Mo. Mar. 28, 2016) [Doc. #18]; Joseph v. Combe Inc., No. 4:16CV-284 (RLW), 2016 WL 3339387, at *2 (E.D. Mo. June 13, 2016); Triplett v.
Janssen Pharms., Inc., No. 4:14-CV-2049 (AGF), at 9 (E.D. Mo. July 7, 2015) [Doc.
#30] (finding defendants’ personal jurisdiction argument failed to address whether
nondiverse plaintiffs had colorable claims as required to show fraudulent joinder);
Gracey v. Janssen Pharms., Inc., No. 4:15-CV-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);
Littlejohn v. Janssen Research & Dev., LLC, No. 4:15-CV-194 (CDP), 2015 WL
1647901, at *1 (E.D. Mo. Apr. 13, 2015); Simmons v. Skechers USA, Inc., No.
4:15-CV-340 (CEJ), 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9, 2015) (rejecting
defendants’ argument that the “theory of fraudulent joinder—an inquiry into
substantive viability of claims—countenances a procedural challenge to a court’s
personal jurisdiction over a defendant.”) This Court agrees that 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.” Joseph v. Combe Inc., 2016 WL 3339387, at *2.

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Defendants do not challenge the substantive viability of the plaintiffs’ claims.
Furthermore, “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.” Id. In this case, common issues of law and
fact are likely to arise because the plaintiffs all allege that they sustained injuries
from the use of Risperdal or Invega. Defendants have therefore failed to meet their
burden to establish that plaintiffs’ claims are fraudulently joined, and the Court
finds that there are “colorable claim[s]” here. Junk v. Terminix Int’l Co., 628 F.3d
439, 446 (8th Cir. 2010) (internal quotation marks omitted).
*****
Based on the foregoing, the Court finds that subject-matter jurisdiction is
lacking and the matter must be remanded.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand [Doc. #10] is
granted.
IT IS FURTHER ORDERED that the Clerk of Court shall remand this matter
to the Twenty-Second Judicial Circuit (City of St. Louis) from which it was removed.
IT IS FURTHER ORDERED that defendants’ motion to dismiss [Doc. #4] is
moot.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 7th day of February, 2017.

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