Whitlock et al v. Bayer Corporation et al

Filing 36

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Doc. 13) is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the City of St. Louis, Missouri. IT IS FURTHER ORDERED that all other pending motions in this case are DENIED without prejudice, as moot.. Signed by Magistrate Judge Shirley Padmore Mensah on 2/13/17. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAN WHITLOCK, et al.,
Plaintiffs,
v.
BAYER CORP., et al.,
Defendants.

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Case No. 4:16-CV-1913-SPM

MEMORANDUM AND ORDER
This case is before the Court on Plaintiffs’ Motion to Remand this case to state court. (Doc.
13). The motion has been fully briefed. The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 29).
I.

BACKGROUND
Plaintiffs filed this action in the Circuit Court of the City of St. Louis, Missouri. (Doc. 1-

1). Plaintiffs are ninety-four individual women, each of whom alleges that she suffered injuries
resulting from the use of Essure, a permanent birth control system manufactured by Defendants.
Plaintiffs assert claims of negligence, negligence per se, strict liability for failure to warn, strict
liability based on a manufacturing defect, common law fraud, constructive fraud, fraudulent
concealment, breach of express warranty, breach of implied warranty, violations of consumer
protection laws, Missouri products liability, violation of the Missouri Merchandising Practices
Act, and gross negligence/punitive damages. Plaintiffs include citizens of thirty-two different
states, including Missouri, Indiana, Pennsylvania, and New Jersey.
On December 8, 2016, Defendants removed the case 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
Class Action Fairness Act (“CAFA”) jurisdiction under 28 U.S.C. § 1332(d). Defendant Bayer

Corporation is a citizen of Indiana and Pennsylvania. Defendant Bayer HealthCare LLC is a citizen
of Delaware, New Jersey, Pennsylvania, Germany, and the Netherlands. Defendant Bayer Essure,
Inc., and Defendant Bayer Healthcare Pharmaceuticals are citizens of Delaware and New Jersey.
With respect to diversity jurisdiction, Defendants argued that although there is a lack of complete
diversity on the face of the Petition, the Court should dismiss the claims of the non-Missouri
plaintiffs for lack of personal jurisdiction, at which point complete diversity would exist.
Defendants also argued that diversity jurisdiction exists because Plaintiffs’ claims have been
fraudulently misjoined.
On December 15, 2016, Plaintiffs filed the instant motion to remand this case, arguing that
the Court should address subject matter jurisdiction before personal jurisdiction and that the Court
should remand the case for lack of subject matter jurisdiction because there is no complete
diversity, no federal question jurisdiction, and no jurisdiction under CAFA. Defendants oppose
the motion to remand.
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).
See also 28 U.S.C. § 1441(a). After removal, a plaintiff may move to remand the case to state
court, and the case should be remanded if it appears that the district court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). The party invoking federal jurisdiction and seeking removal
bears the burden of establishing federal jurisdiction, and all doubts about federal jurisdiction are
resolved in favor of remand. Central Iowa Power Co-op, v Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009).
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 parties’ first dispute

concerns whether the Court should first consider the issue of subject matter jurisdiction or the issue
of personal jurisdiction. Plaintiffs argue that the Court should first consider whether it has subject
matter jurisdiction over the case, and that it should find no subject matter jurisdiction and remand
the case. Defendants argue that the Court should first consider whether it has personal jurisdiction
over particular Plaintiffs’ claims, dismiss any claims over which it does not have personal
jurisdiction, and only then evaluate whether it has subject matter jurisdiction.
In Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), the Supreme Court recognized
that “in most instances subject-matter jurisdiction will involve no arduous inquiry,” and it stated
that “[i]n 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. However, the Supreme Court also
held that where the question of personal jurisdiction is straightforward and presents no complex
question of state law, and the alleged defect in subject matter jurisdiction raises a difficult and
novel question, courts have the discretion to consider personal jurisdiction first. Id. at 588. See
also Crawford, 267 F.3d at 764 (“[C]ertain threshold issues, 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.”).
After consideration of both parties’ arguments, the Court finds that the subject matter
jurisdiction question here is straightforward and involves no arduous inquiry, and therefore the
Court will exercise its discretion to consider its subject matter jurisdiction first. This approach is
consistent with the approach taken by judges in this district in similar cases—several of which
were nearly identical to the instant case and involved the same defendants. See, e.g., Jones v. Bayer
Corp., No. 4:16-CV-1192-JCH, 2016 WL 7230433, at *2 n.3 (E.D. Mo. Dec. 14, 2016); Tenny v.
Bayer Healthcare, LLC, No. 4:16-CV-1189-RLW, 2016 WL 7235705, at *2 (E.D. Mo. Dec. 13,
2016); Dorman v. Bayer Corp., No. 4:16-CV-601-HEA, 2016 WL 7033765, at *1 (E.D. Mo. Dec.
2, 2016). See also Wilcox v. Boehringer Ingelheim Pharms. Inc., No. 4:16-CV-753-HEA, ECF No.

27 (E.D. Mo. Dec. 7, 2016); Clark v. Pfizer, Inc., No. 4:15-CV-546-HEA, 2015 WL 4648019, at
*2 (E.D. Mo. Aug. 5, 2015).
The Court will consider each of the three bases for federal subject matter jurisdiction
asserted in Defendants’ Notice of Removal.
A. Diversity Jurisdiction
Under 28 U.S.C. § 1332(a), a federal district court has original jurisdiction over a civil
action in which the amount in controversy exceeds $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).
Complete diversity is lacking on the face of the Petition because Plaintiffs include citizens
of New Jersey, Pennsylvania, and Indiana—states where some of the defendants are also citizens.
Defendants argue, however, that the “fraudulent misjoinder” doctrine provides an exception to the
requirement of complete diversity here. “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.’” Prempro, 591 F.3d at 620 (quoting Ronald A.
Parsons, Jr., Should the Eighth Circuit Recognize Procedural Misjoinder?, 53 S.D. L. Rev. 52, 57
(2008)).
The Eighth Circuit has not yet decided whether to adopt the doctrine of fraudulent
misjoinder, though it has noted that if it were to adopt the doctrine, only an “egregious” misjoinder
would warrant its application. See Prempro, 591 F.3d at 622. In Prempro, several dozen women
from different states sued several different manufacturers of hormone replacement therapy (HRT)
drugs in state court, with each plaintiff alleging that she had developed breast cancer as a result of
taking the HRT drugs. Id. at 617. The defendant manufacturers removed the case to federal court,

asserting that diversity existed under the fraudulent misjoinder doctrine because the plaintiffs’
claims did not arise out of the same “transaction, occurrence, or series of transactions or
occurrences,” as required for joinder under Federal Rule of Civil Procedure Rule 20(a). Id. at 618,
622. The Eighth Circuit held that even if it were to adopt the doctrine, the alleged misjoinder in
the case before it was “not so egregious as to constitute fraudulent misjoinder.” Id. at 622. It began
by noting that the Eighth Circuit had adopted a “very broad” definition of the term “transaction”
as used in Rule 20, under which the term “may comprehend a series of many occurrences,
depending not so much upon the immediateness of their connection as upon their logical
relationship.” Id. at 622 (quoting Mosley v. Gen. Motors Corp., 497 F.2d 1330, 1333 (8th Cir.
1974)). The Eighth Circuit found that in contrast to fraudulent misjoinder cases that concerned
claims with “no real connection” to one another, in the case before it “there may be a palpable
connection between the plaintiffs’ claims against the manufacturers as they all relate to similar
drugs and injuries and the manufacturers’ knowledge of the risks of HRT drugs.” Id. at 623. The
Court further noted that in the absence of evidence that the misjoinder “borders on a sham,” it
would not apply the fraudulent misjoinder doctrine to the case. Id. at 624.
Here, as in Prempro, the Court finds that the alleged misjoinder is not so egregious as to
constitute fraudulent misjoinder. Each Plaintiff alleges injury from the same product (the Essure
device), and each Plaintiff’s claim involves the same allegedly wrongful conduct with regard to
the development, distribution, marketing, and sales practices for that product. Plaintiffs’ claims in
this case are at least as logically connected to one another as were the claims in Prempro and will
clearly involve common issues of law and fact. Although there are certainly differences between
Plaintiffs’ claims (such as the different injuries alleged, the different times when Plaintiffs received
the products, and the different doctors who prescribed the products), those differences do not
render the joinder here “egregious” and certainly do not suggest that the joinder “borders on a
sham.” The Court further notes that several other judges in this district addressing nearly identical

cases involving the same product and the same defendants have also found no egregious
misjoinder. See Tabor v. Bayer Corp., No. 4:16-CV-1682-RWS, ECF No. 38 (E.D. Mo. Dec. 16,
2016); (no fraudulent misjoinder in case involving several claims related to Essure); Jones, 2016
WL 7230433, at *3 (same); Dorman, 2016 WL 7033765, at *2 (same). See also Robinson v. Pfizer
Inc., No. 4:16-CV-439 (CEJ), 2016 WL 1721143, at *4 (E.D. Mo. April 29, 2016) (“On numerous
occasions, this Court has determined that the joinder of plaintiffs alleging injury from a single drug
is not ‘egregious,’ because common issues of law and fact connect the plaintiffs’ claims.”)
(collecting cases).
In addition, to the extent that Defendants contend that the non-Missouri Plaintiffs are
fraudulently misjoined because this Court does not have personal jurisdiction over them, the Court
finds that argument to be without merit. Courts in this district have repeatedly held that an alleged
lack of personal jurisdiction with respect to a particular plaintiff’s claims does not establish
fraudulent misjoinder. See, e.g., Joseph v. Combe Inc., No. 4:16-CV-284-RLW, 2016 WL
3339387, at *2 (E.D. Mo. June 13, 2016) (“In this district, courts have consistently held that an
alleged lack of personal jurisdiction does not establish fraudulent joinder.”). See also Tenny, 2016
WL 7235705, at *3; Dorman, 2016 WL 7033765, at *2.
Because the fraudulent misjoinder doctrine does not apply here and there is no complete
diversity, the Court finds that diversity jurisdiction does not exist.
B. Federal Question Jurisdiction
Defendants also argue that federal question jurisdiction exists under 28 U.S.C. § 1331,
which provides that federal district courts “shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” 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). This provision is generally invoked where plaintiffs have pleaded a cause of action

created by federal law. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 312 (2005). However, the Supreme Court has recognized “that in certain cases federalquestion jurisdiction will lie over state-law claims that implicate significant federal issues.” Id.
Specifically, “[f]ederal question jurisdiction is available only where (1) the right to relief under
state law depends on the resolution of a substantial, disputed federal question, and (2) the exercise
of jurisdiction will not disrupt the balance between federal and state jurisdiction adopted by
Congress.” Pet Quarters, Inc. v. Depository Trust & Clearing Corp., 559 F.3d 772, 779 (8th Cir.
2009).
Defendants argue that although Plaintiffs here allege only state law claims, their right to
relief depends on the resolution of substantial, disputed federal questions. They emphasize that
Plaintiffs’ petition repeatedly pleads that Defendants violated the Federal Food, Drug, and
Cosmetic Act (FDCA), and they argue that Plaintiffs must prove these violations in order to
maintain their causes of action and avoid preemption. Defendants also emphasize that this case
involves unique federal interests associated with Class III, premarket-approved medical devices.
Plaintiffs argue that although their claims may parallel federal law, they are fundamentally based
on state law.
Courts in this district confronted with this issue have repeatedly rejected Defendants’
position in very similar cases, concluding that the inclusion of allegations of violations of federal
law in state-law claims with regard to the Essure product does not create a substantial issue of
federal law and that accepting federal jurisdiction would disrupt the federal-state balance
contemplated by Congress. See Dorman, 2016 WL 7033765, at *3-*4 (finding that because
Congress declined to create a federal cause of action under the FDCA and because there is no
preemption of all state remedies under the FDCA, the federal issues raised in the plaintiffs’
complaint were not substantial and accepting federal jurisdiction would disrupt the federal-state
balance contemplated by Congress); Tenny, 2016 WL 7235705, at *4; Tabor, 4:16-CV-1682-

RWS, ECF No. 38. This Court finds the reasoning of these courts persuasive. The federal issues
raised in Plaintiffs’ Petition are not substantial, and accepting federal jurisdiction in a case such as
this would disrupt the federal-state balance contemplated by Congress. Thus, federal question
jurisdiction does not exist.
C. Jurisdiction under CAFA
Finally, Defendants argue that federal jurisdiction is proper under CAFA. Under CAFA’s
“mass action” jurisdictional provision, federal courts have jurisdiction over certain civil actions
“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)(i). Although this case involves only ninety-four plaintiffs, Defendants argue that
this case should be considered along with other similar Essure cases filed in this district to form a
single mass action involving more than 100 plaintiffs. They argue that these cases are part of the
same mass action because these complaints contain the same substantive allegations, allege the
same causes of action, were filed by the same counsel, and were filed in the same jurisdiction.
They argue that Plaintiffs cannot avoid removal under CAFA by artificially separating their
plaintiffs into groups of fewer than 100 plaintiffs.
Defendants’ argument is without merit. The instant case does not involve the claims of 100
or more persons, and there is no indication in the record that this case will be consolidated or that
Plaintiffs wish to have this case tried jointly with any other cases. The fact that there is nothing in
the record to suggest that Plaintiffs here have made any attempt to consolidate this case with any
other Essure cases against Bayer distinguishes this case from the Eighth Circuit’s decision in
Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013)
In Atwell, the Eighth Circuit recognized that “state court plaintiffs with common claims
against a common defendant may bring separate cases with fewer than 100 plaintiffs each to avoid
federal jurisdiction under CAFA” unless “plaintiffs proposed to try their separate cases jointly.”

Atwell, 740 F.3d at 1162-63 (emphasis added). Defendants seem to suggest that even though
Plaintiffs have made no attempt to consolidate this case with other Essure cases, this Court should
nevertheless treat all of the Essure cases filed by the same lawyers as one action. In other words,
Defendants are asking the Court to consolidate this case with all of the other Essure cases filed in
this district. However, CAFA’s mass action provision expressly excludes from the definition of a
“mass action” removable under CAFA, “claims joined upon motion of a defendant.” 28 U.S.C.
§1332(d)(11)(B)(ii)(II). As such, it appears that granting Defendants’ request to, in effect,
consolidate this case with all other Essure cases filed by the same plaintiff’s attorneys for the
purpose of determining whether this Court has subject matter jurisdiction under CAFA would
contravene both the letter and the spirit of the mass action provisions of CAFA.
Indeed, Defendants’ argument has been repeatedly rejected by courts in this district. See,
e.g., Tenny, 2016 WL 7235705, at *4 (collecting cases); Jones, No. 2016 WL 7230433, at *4;
Tabor, 4:16-CV-1682-RWS, ECF No. 38; Hammonds v. Monsanto Co., No. 4:11 CV 1660 DDN,
2011 WL 5554529, 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.”). The Court finds the reasoning in those cases persuasive; and, for all of the
reasons set out above, concludes that CAFA cannot form a basis for subject matter jurisdiction.
IV.

CONCLUSION
Because the Court lacks subject matter jurisdiction over this case, it will grant Plaintiffs’

motion to remand this case to state court. Any remaining questions about personal jurisdiction or
improper joinder may be addressed by the state court. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (Doc. 13) is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the
City of St. Louis, Missouri.

IT IS FURTHER ORDERED that all other pending motions in this case are DENIED
without prejudice, as moot.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 13th day of February, 2017.