Erhart et al v. Bayer Corporation et al

Filing 36

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs' motion to remand (#13) is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court for the Twenty-Second Judicial Circuit, 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 District Judge Stephen N. Limbaugh, Jr on 2/8/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREA ERHART, ET AL

)
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Plaintiffs,
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v.
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BAYER, CORP., BAYER HEALTHCARE )
LLC., BAYER ESSURE, INC., (F/K/A
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CONCEPTUS, INC.), BAYER
)
HEALTHCARE PHARMACEUTICALS, )
INC., BAYER A.G.,
)
)
Defendants.
)

Case No. 4:16-CV-01946 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand (#13) and
defendants’ motions to dismiss (#4), sever (#7), and stay proceedings (#23). The
removing defendants oppose plaintiffs’ motion to remand, alleging plaintiffs fraudulently
joined and fraudulently misjoined the non-Missouri plaintiffs for the sole purpose of
defeating diversity jurisdiction. The matters are fully briefed and ripe for disposition.
I.

Background

The ninety-four plaintiffs initially filed this action in state court, claiming they
were each injured from the implantation and use of Essure, a medical device used as a
form of permanent birth control that is manufactured and distributed by the defendants.
The plaintiffs are residents of 26 states, including Missouri, Indiana, New Jersey, and
Pennsylvania.

Defendant Bayer Corporation is a citizen of Indiana and Pennsylvania; defendant
Bayer HealthCare LLC is a citizen of New Jersey and Pennsylvania; and defendants
Bayer Essure, Inc. and Bayer Pharmaceuticals, Inc. are citizens of New Jersey. Plaintiff
Amber Lambermont is a resident of Pennsylvania; plaintiff Marita Vicente is a citizen of
New Jersey; and plaintiff Stormi Knight is a citizen of Indiana. Consequently, diversity
jurisdiction is lacking on the face of the complaint.
Defendants removed the case to this Court based on (1) diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a), (2) federal question jurisdiction pursuant to 28 U.S.C. §
1331, and (3) removal jurisdiction pursuant to the “mass action” provision of the Class
Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i), due to the
number of plaintiffs and claims when considered in conjunction with the number of
plaintiffs and claims in nearly identical complaints filed in several other Essure device
cases in this District.
II.

Essure Cases in this Court

In the past few months, at least eight nearly identical lawsuits have been filed in
this Court where plaintiffs and defendants have been represented by the same attorneys
and the causes of action are based on the same allegedly defective product. The legal
issues presented in this pending motion to remand are exactly the same as those presented
in the other cases, and in each case this Court has granted the motion to remand. This
Court agrees with the disposition in those cases and the reasoning and rationale used in
arriving at that disposition, and adopts the same.

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See Tenny v. Bayer Healthcare, LLC, No. 4:16-CV-1189 RLW, 2016 WL
7235705 (E.D. Mo. Dec. 13, 2016); Mounce v. Bayer Corp, No. 4:16-CV-1478 RLW,
2016 WL 7235707 (E.D. Mo. Dec. 13, 2016); Tabor v. Bayer Corp., No. 4:16-CV-1682
RWS, ECF No. 38 (E.D. Mo. Dec. 16, 2016); McPeters v. Bayer Corp., No. 4:16-CV1680 SPM, 2017 WL 57250 (E.D. Mo. Jan. 5, 2017), Hall v. Bayer Corp., No. 4:16-CV1523 CEJ, 2017 WL 86011 (E.D. Mo. Jan. 10, 2017), Dotson v. Bayer Corp., No. 4:16CV-1593 PLC, 2017 WL 35706 (E.D. Mo. Jan. 4, 2017); Robb v. Bayer Healthcare,
LLC, No. 4:16-CV-1727 RLW, ECF No. 27 (E.D. Mo. Dec. 13, 2016); and Jones v.
Bayer Corp, No. 4:16-CV-1192 JCH, 2016 WL 7230433 (E.D. Mo. Dec. 14, 2016).
IT IS HEREBY ORDERED that plaintiffs’ motion to remand (#13) is
GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court
for the Twenty-Second Judicial Circuit, City of St. Louis, Missouri.
IT IS FURTHER ORDERED that all other pending motions in this case are
DENIED without prejudice, as moot.
So ordered this 8th day of February, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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