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

Filing 28

MEMORANDUM AND ORDER - IT IS FURTHER ORDERED that plaintiffs' motion to remand to state court 11 is DENIED. IT IS FURTHER ORDERED that plaintiffs' motion for leave to file notice of supplemental authority 25 is GRANTED, and defendant BIPIs original motion to dismiss for lack of jurisdiction 4 is DENIED as moot. This case will be set for a Rule 16 Scheduling Conference by separate order. Signed by District Judge Catherine D. Perry on June 27, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
IDA SIEGFRIED, et al.,
Plaintiffs,
vs.
BOEHRINGER INGELHEIM
PHARMACEUTICALS, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16 CV 1942 CDP

MEMORANDUM AND ORDER
Eight Missouri plaintiffs joined eighty-six non-Missouri plaintiffs to sue
Boehringer Ingelheim Pharmaceuticals, Inc. (“BIPI”) and its corporate parent
company, Boehringer Ingelheim International GmbH (“BII”), in Missouri state
court. All plaintiffs contend that they were injured by taking defendants’ anticlotting drug Pradaxa, and all their claims are brought under Missouri tort law.
Defendants removed the case to federal court, asserting diversity jurisdiction even
though three of the plaintiffs shared Connecticut citizenship with one of the
defendants. Defendants seek dismissal of the claims of all non-Missouri plaintiffs
for lack of personal jurisdiction. Plaintiffs seek remand of the case to state court.
The court will exercise its discretion to examine personal jurisdiction before
subject matter jurisdiction in this case. Based on recent rulings from both the
United States and Missouri Supreme Courts, I conclude that Missouri lacks

personal jurisdiction over these corporate defendants for claims brought by the
non-Missouri plaintiffs. See Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S. F.
Cnty., No. 16-466, 2017 WL 2621322 (U.S. June 19, 2017); State ex rel. Norfolk S.
Ry. Co. v. Dolan, 512 S.W.3d 41(Mo. 2017) (en banc). The claims of the eightysix non-Missouri plaintiffs will be dismissed. Complete diversity exists between
the remaining parties, so the motion to remand will be denied.
Background
On October 10, 2016, ninety-four1 plaintiffs filed their first amended
petition in the City of St. Louis Circuit Court, seeking personal injury damages for
bleeding events that were allegedly caused by their use of Pradaxa. Plaintiffs state
that “their claims arise out of the same series of transactions and occurrences, and
their claims involve common questions of law and fact” relating to defendants’
“research, designing, testing, formulating, inspecting, labeling, manufacturing,
packaging, marketing, distributing, producing, processing, promoting, and selling
of the pharmaceutical drug known as Pradaxa.” ECF No. 14 at ¶ 1.
Eight of the ninety-four plaintiffs are citizens of the state of Missouri. Only
these eight Missouri plaintiffs allege that they were prescribed and took the drug
Pradaxa in Missouri and subsequently suffered a bleeding event in Missouri. None
of the other eighty-six plaintiffs allege that they were prescribed Pradaxa in
1

In the original petition filed in Missouri state court on September 26, 2016, there were ninetysix named plaintiffs; however, the first amended petition named only ninety-four plaintiffs.
–2–

Missouri, that they suffered any resulting injuries in Missouri, or that they received
treatment for any injuries in Missouri.
Three of the ninety-four plaintiffs are citizens of the state of Connecticut.
Defendant BIPI is a Delaware corporation with its principal place of business in
Connecticut. BIPI has a registered agent and is licensed to do business in the state
of Missouri. BII is a German corporation with its headquarters in Germany.
Plaintiffs allege that defendants have “conducted and continue to conduct
continuous and systematic business in the State of Missouri, have purposefully
injected their products, including Pradaxa, into the stream of commerce to be sold
in Missouri, and have taken actions such that they should anticipate being sued in
the State of Missouri.” ECF No. 14 at ¶ 101. According to plaintiffs, the
defendants transacted business and committed torts in whole or in part in Missouri
– including the marketing and selling of Pradaxa – that gave rise to this cause of
action as a whole. Id.
Discussion
A. Removal and Diversity Jurisdiction
Removal in this case was premised on diversity jurisdiction, which requires
an amount in controversy greater than $75,000 and complete diversity of
citizenship among the litigants. 28 U.S.C. § 1332(a). It is undisputed that the
amount in controversy exceeds $75,000.

–3–

Because three plaintiffs are citizens of the state of Connecticut, as is
defendant BIPI, complete diversity is lacking. BIPI argues, however, that all of the
non-Missouri plaintiffs’ claims were fraudulently joined and therefore should be
ignored for purposes of determining diversity jurisdiction. According to BIPI, this
court will have federal jurisdiction over the claims of the Missouri citizen plaintiffs
once the eighty-six non-Missouri plaintiffs (including the three diversitydestroying Connecticut plaintiffs) are dismissed for lack of personal jurisdiction.
Plaintiffs respond that the court should examine subject-matter jurisdiction before
personal jurisdiction, and should remand this action to state court.
B. Discretion on Order of Jurisdictional Issues
There is no “unyielding jurisdictional hierarchy” concerning the order in
which a federal court must consider challenges to personal jurisdiction and subjectmatter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 578 (1999).
In exercising discretion to determine which issue to consider first, courts should
consider the interests of judicial economy, weigh the preclusionary effect of ruling
on an issue that could travel back and bind the state court, and decide the more
straightforward issue first. Id. at 585-86. The Supreme Court in Ruhrgas
acknowledged that “in most instances subject-matter jurisdiction will involve no
arduous inquiry” and “[i]n such cases, both expedition and sensitivity to state

–4–

courts’ coequal stature should impel the federal court to dispose of that issue first.”
Id. at 587-88.
Plaintiffs argue that the more straightforward issue here is subject-matter
jurisdiction. This is consistent with the holdings of many cases from this district
over the past few years.2 But recent decisions by the United States and Missouri
Supreme Courts make the personal jurisdiction issue in this case much easier to
decide. See Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S. F. Cnty., No. 16466, 2017 WL 2621322 (U.S. June 19, 2017); State ex rel. Norfolk S. Ry. Co. v.
Dolan, 512 S.W.3d 41(Mo. 2017) (en banc). Remanding this case for lack of
complete diversity, only to have the case removed again later once the nonMissouri plaintiffs are dismissed, would be a waste of judicial resources. In
addition, inquiring into personal jurisdiction first means the Court need not decide
the joinder issues, which are complicated, especially in light of In re Prempro
Prods. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010).
2

See T.R. v. Janssen Pharm., Inc., No. 4:16-CV-1860 CEJ, 2017 WL 492827, at *3 (E.D. Mo.
Feb. 7, 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-CV733 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); Clark v. Pfizer, Inc., 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).

–5–

Personal jurisdiction is now the more straightforward inquiry. Ruling
personal jurisdiction first is in the interests of judicial economy and
expeditiousness. See also Addelson v. Sanofi, No. 4:16-CV-1277 ERW, 2016 WL
6216124 (E.D. Mo. Oct. 25, 2016) (personal jurisdiction is the more
straightforward issue and should be addressed first); In re Testosterone
Replacement Therapy Prods. Liab. Litig. Coordinated Pretrial Proceedings, 164
F.Supp.3d 1040 (N.D. Ill. 2016) (personal jurisdiction is more straightforward and
less complex than subject-matter jurisdiction).
C. Rule 12(b)(2) Motion to Dismiss
To survive a motion to dismiss for lack of personal jurisdiction under Fed.
R. Civ. P. 12(b)(2), a plaintiff must make a prima facie showing of personal
jurisdiction by pleading facts sufficient to support a “reasonable inference that the
defendant[ ] can be subjected to jurisdiction within the state.” K–V Pharm. Co. v.
J. Uriach & CIA, S.A., 648 F.3d 588, 591-92 (8th Cir. 2011). I must view the
evidence in a light most favorable to the plaintiffs and resolve factual conflicts in
the plaintiffs’ favor; however, plaintiffs carry the burden of proof and that burden
does not shift to defendants. Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647
(8th Cir. 2003).

–6–

D. Personal Jurisdiction
a. General and Specific Jurisdiction
In order to subject a defendant to a court’s personal jurisdiction, due process
requires that the defendant have certain minimum contacts with the state, such that
the maintenance of the suit does not offend “traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). There are
two types of personal jurisdiction: general and specific. Daimler AG v. Bauman,
134 S.Ct. 746, 754 (2014). General, or “all-purpose,” jurisdiction exists over a
corporation when the forum state is its place of incorporation or the location of its
principal place of business. Id. at 751, 754; see also Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). However, in an “exceptional
case,” an additional state could have general jurisdiction if the corporation’s
activities in that state are “so substantial and of such a nature as to render the
corporation at home in that State.” Daimler, 134 S.Ct. at 761 n.19. Neither
defendant in this case is incorporated in Missouri, nor does either have its principal
place of business in the state. Nor are their activities in the state substantial
enough to make them “at home” here. Id.
Specific, or “conduct-linked,” jurisdiction involves suits “arising out of or
related to the defendant’s contacts with the forum.” Daimler, 134 S.Ct. at 751;
Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984).

–7–

For a Missouri court to exercise specific jurisdiction over an out-of-state
defendant, two requirements must be met: 1) jurisdiction must be allowed by the
Missouri long-arm statute; and 2) the reach of the long-arm statute must comport
with due process. Viasystems, Inc. v. EBM-Papst St. George Gmbh & Co., 646
F.3d 589, 593-94 (8th Cir. 2011). Missouri’s long-arm statute authorizes, inter
alia, personal jurisdiction over corporate defendants who, either in person or
through an agent, transact business or commit a tort within the state. Mo. Rev.
Stat. § 506.500.1(1), (3).
“For a State to exercise jurisdiction consistent with due process, the
defendant’s suit-related conduct must create a substantial connection with the
forum State.” Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014). In other words, “the
relationship must arise out of contacts that the defendant himself creates with the
forum State.” Id. at 1122 (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475
(1985)). Contacts between the plaintiff and the forum state do not satisfy this
inquiry. Id. The proper focus regarding minimum contacts necessary to create
specific jurisdiction is on “the relationship among the defendant, the forum, and
the litigation.” Id. at 1121.
Plaintiffs here assert that this court has specific jurisdiction over all
defendants for all plaintiffs’ claims. They argue that defendants’ tortious conduct
gave rise to this cause of action as a whole and defendants’ contacts with Missouri

–8–

constitute part of the same series of transactions for all plaintiffs. These contacts
with Missouri include marketing, promoting, and selling Pradaxa in the state. It is
undisputed that the same marketing and promotional activities took place
throughout the United States. The non-Missouri plaintiffs, however, were not
prescribed Pradaxa here, nor did they purchase the drug, suffer an injury, or
receive treatment in Missouri.
In Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S. F. Cnty., No. 16-466,
2017 WL 2621322 (U.S. June 19, 2017), more than 600 plaintiffs brought suit in
California state court against pharmaceutical company defendant BMS, alleging
damage to their health from the drug Plavix. Eighty-six of the plaintiffs were
California residents and the remaining 592 plaintiffs were residents of 33 other
states. Id. at *3-4. BMS was incorporated in Delaware with substantial operations
in New York and New Jersey. The non-California plaintiffs did not allege that
they obtained Plavix in California, suffered injury in California, or received
treatment for their injuries in California. BMS sold Plavix in California and
engaged in some business activities within the state, including running five
research laboratory facilities which employed around 160 employees, employing
around 250 sales representatives, maintaining a small advocacy office, and
contracting with a California company for the distribution of Plavix on a
nationwide basis. Id. at *3-4, *10. BMS, however, did not do any research or

–9–

development leading to Plavix, create its marketing strategy, or work on regulatory
approval of Plavix in California. Id. at *4. The California Supreme Court found
that California courts had specific jurisdiction over BMS for the nonresident
plaintiffs’ claims because of BMS’s extensive contacts with California and the
similarity of the claims brought by the resident and nonresident plaintiffs. Id. at
*5.
The Supreme Court reversed, finding that the California court’s exercise of
jurisdiction over BMS violated due process. Id. at *6-11. In a “straightforward
application” of the “settled principles of personal jurisdiction,” the Court focused
on the need for an “affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the forum State.” Id.
at *11, *7 (quoting Goodyear, 564 U.S. at 919). The Court reiterated that it is not
enough for a defendant to have general connections with the forum – there must be
a connection between the forum and the specific claims at issue. Id. at *8. The
Court found the connection between the California forum and the nonresident
plaintiffs too weak for a California court to claim specific jurisdiction. Id. at *9.
A few months before the Supreme Court’s ruling in Bristol-Myers Squibb,
the Missouri Supreme Court considered a similar issue in State ex rel. Norfolk
Southern Railway Co. v. Dolan, 512 S.W.3d 41(Mo. 2017) (en banc). In Norfolk
Southern, the Missouri court concluded that there was neither general nor specific

– 10 –

jurisdiction over defendant Norfolk, a Virginia corporation, when Norfolk was
sued for personal injuries in Missouri by an Indiana-resident plaintiff, where the
injuries occurred in Indiana and resulted from plaintiff’s work for the railway in
Indiana. Id. at 44-46. Before turning to the argument that the Federal Employers’
Liability Act (FELA) conferred personal jurisdiction, the Missouri court applied
the Daimler principles underlying general and specific jurisdiction. There was no
personal jurisdiction in Missouri because the railroad was not at home in Missouri
and the plaintiff’s personal injury did not arise out of, or relate to, Norfolk’s
activities in Missouri. Id. at 49. The court also rejected plaintiff’s arguments that
FELA provided a basis for personal jurisdiction. Id. at 50. Not long after that
Missouri decision, the United States Supreme Court reached the same conclusion
in holding that FELA does not provide a basis for personal jurisdiction over a
railroad wherever it has tracks. BNSF Railway Co. v. Tyrrell, 137 S.Ct. 1549
(2017).
Just as in Bristol-Myers Squibb, defendants here market and sell their
pharmaceutical drug in the forum state, but the nonresident plaintiffs did not ingest
the drug in the forum, nor do they claim to have suffered resulting injuries in the
forum. The personal injuries of the non-Missouri plaintiffs have no connection
with Missouri. They did not arise out of, or relate to, defendants’ activities in
Missouri. The Missouri long-arm statute limits a state court’s jurisdiction over a

– 11 –

defendant to only causes of actions that arise from the acts enumerated in the
statute – i.e. business transacted and torts committed within the state of Missouri.
Mo. Rev. Stat. § 506.500.3 (emphasis added). Defendants’ activities in Missouri
and connections with the state do not meet the state long-arm requirements or the
due process requirements of the Fourteenth Amendment.
Plaintiffs argue that because defendants’ actions are sufficient to confer
jurisdiction over them for the Missouri plaintiffs’ claims, jurisdiction should
extend to claims of nonresident plaintiffs that are based on the same conduct. But
both the United States Supreme Court and the Missouri Supreme Court rejected the
argument that personal jurisdiction could be asserted merely because a defendant
treated nonresidents in the same way it treated plaintiffs in the forum state, or
because nonresident and resident plaintiffs made similar claims based on similar
injuries. The Missouri court noted that this argument “would be to turn specific
jurisdiction on its head. There would never be a need to discuss general
jurisdiction, for every state would have specific jurisdiction over every national
business corporation.” Norfolk Southern, 512 S.W.3d at 49. The U.S. Supreme
Court said, “Our cases provide no support for this approach, which resembles a
loose and spurious form of general jurisdiction.” Bristol-Myers Squibb, 2017 WL
2621322, at *8.

– 12 –

b. Consent to Jurisdiction by Registration
Plaintiffs also assert that Missouri courts possess an additional, independent
basis for personal jurisdiction over BIPI: consent jurisdiction based on BIPI’s
registration to do business in the state of Missouri and its maintenance of an agent
in the state to accept service of process.3 The U.S. Supreme Court in BNSF
declined to consider this argument as it had not been considered by the Montana
Supreme Court, 137 S.Ct. at 1559, and the Court did not mention the argument in
Bristol-Myers Squibb. The Missouri Supreme Court in Norfolk Southern, however,
explicitly considered the argument and rejected it. 512 S.W.3d at 51-53. In that
case defendant Norfolk, just like BIPI here, had registered to do business with the
state of Missouri and had designated an agent to receive service of process in the
state. The Missouri Supreme Court found that “[t]he plain language of Missouri’s
registration statutes does not mention consent to personal jurisdiction for unrelated
claims, nor does it purport to provide an independent basis for jurisdiction over
foreign corporations that register in Missouri.” Id. at 52. The registration statute
does not broaden “Missouri’s personal jurisdiction to include suits unrelated to the
corporation’s forum activities when the usual bases for general jurisdiction are not
present.” Id. The court explicitly stated that its holding in Norfolk Southern

Plaintiffs’ argument concerning consent jurisdiction only applies to defendant BIPI. Plaintiffs
do not allege in their amended petition that defendant BII is licensed to do business in Missouri,
nor do they allege that it maintains a registered agent in the state.
3

– 13 –

overruled earlier cases that suggested otherwise. Id. at 52-53. Compliance with
Missouri’s registration statute does not confer personal jurisdiction over BIPI.
Conclusion
Based on Bristol-Myers Squibb and Norfolk Southern, neither this Court
nor the Missouri state court from which this case was removed can exercise
personal jurisdiction over these defendants for the claims brought by the eighty-six
non-Missouri plaintiffs. The nonresident plaintiffs’ claims cannot satisfy either
Missouri’s long-arm statute or the Due Process Clause, and BIPI’s registration to
do business in Missouri does not constitute consent to jurisdiction. I will grant
defendants’ motion to dismiss the claims of the eighty-six non-Missouri plaintiffs.
As complete diversity of citizenship exists between the defendants and the
remaining eight Missouri-citizen plaintiffs, I will deny plaintiffs’ motion to
remand.
Accordingly,
IT IS HEREBY ORDERED that defendant BIPI’s amended motion to
dismiss for lack of jurisdiction [15] is GRANTED. The claims of all plaintiffs
other than Ida Siegfried, Georgianna Horn, David Kirk, Elneides Minner, Herman
Standifer, Sandra Campbell, Sharon Cohen, and Melvin McGuire are dismissed
without prejudice for lack of personal jurisdiction.

– 14 –

IT IS FURTHER ORDERED that plaintiffs’ motion to remand to state
court [11] is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion for leave to file notice
of supplemental authority [25] is GRANTED, and defendant BIPI’s original
motion to dismiss for lack of jurisdiction [4] is DENIED as moot.
This case will be set for a Rule 16 Scheduling Conference by separate order.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 27th day of June, 2017.

– 15 –