Robinson et al v. Janssen Pharmaceuticals, Inc. et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Remand (ECF No. 15) is GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. A separate Order of Remand will accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 4/10/17. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GWEN ROBINSON, et al.,
JANSSEN PHARMACEUTICALS, INC., )
PHARMACEUTICALS, INC., et al.,
Cause No. 4:17CV862 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Remand, filed March 27, 2017.
(ECF No. 15). The motion is fully briefed and ready for disposition.
On or about January 30, 2017, Plaintiffs filed their Petition in the Circuit Court of the
City of St. Louis, Missouri. (Petition (hereinafter “Complaint” or “Compl.”), ECF No. 6). In
total, there are 67 Plaintiffs joined to the action.1 Plaintiffs claim that they, or their next friend,
suffered damages as a result of their use of the drug Risperdal, which allegedly was designed,
developed, tested, labeled, packaged, distributed, marketed, and sold throughout the United
States by Defendants. (Compl., P. 5). These claims are alleged to be the result of Defendants’
illegal conduct, including their “concealment of the true character, quality and nature of their
product,….including misrepresenting known dangers and/or defects in Risperdal and/or arising
Plaintiffs are residents of 27 states, including Alabama, Arkansas, Connecticut, Florida,
Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi,
Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania,
Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin, and the District of
Columbia. (Compl., ¶¶ 5-71).
out of the use of Risperdal and a continued and systematic failure to disclose and/or cover-up
such information from/to the Plaintiffs, Plaintiffs’ physicians, and the public.” (Id., ¶¶ 154, 155).
Based on these allegations, Plaintiffs bring claims for negligence, fraud, strict product liability
(failure to warn), strict product liability, negligent misrepresentation, breach of express warranty,
breach of implied warranty, violation of the Missouri Merchandising Practices Acts, conspiracy,
and medical expenses incurred by parent. (Id., ¶¶ 162-227).
Defendants removed the action to this Court on March 9, 2017, on the basis of diversity
jurisdiction under 28 U.S.C. § 1332(a)2. (Notice of Removal, ECF No. 1). Defendants maintain
there exists complete diversity among “all properly joined and served parties, and the amount in
controversy exceeds $75,000.00, exclusive of interest and costs.”
(Id., P. 3).
acknowledge that two Plaintiffs and several Defendants are citizens of Pennsylvania, and one
Plaintiff and several Defendants are citizens of New Jersey, thereby defeating complete diversity
as required by 28 U.S.C. § 1332(a), but insist the citizenship of all non-Missouri Plaintiffs should
be disregarded as their claims were fraudulently joined in that these Plaintiffs cannot establish
personal jurisdiction over any Defendant in any court in Missouri. (Id., PP. 11-12, 18-21).
Defendants emphasize that their removal does not rely on the doctrine of fraudulent misjoinder.
(Id., P. 3).
Defendants removed on the basis of diversity jurisdiction, despite the lack of complete diversity
on the face of the Complaint. In other words, according to Plaintiffs, Plaintiffs Alicia Coleman
and Jennifer Partyka and Defendants Janssen Pharmaceuticals, Inc., f/k/a Ortho-McNeil-Janssen
Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc., and Janssen Research and Development,
LLC, f/k/a Johnson & Johnson Pharmaceutical Research & Development, L.L.C., are all
Pennsylvania residents, and Plaintiff David Mims and Defendants Janssen Pharmaceuticals, Inc.,
f/k/a Ortho-McNeil-Janssen Pharmaceuticals, Inc., Janssen Pharmaceutica, Inc., Johnson &
Johnson, and Janssen Research and Development, LLC, f/k/a Johnson & Johnson Pharmaceutical
Research & Development, L.L.C., are all New Jersey residents. (Compl., ¶¶ 47, 57, 65, 72, 74,
On the same day that they removed the case, Defendants moved to dismiss the claims of
the out-of-state Plaintiffs for lack of personal jurisdiction, and/or to dismiss the Complaint for
failure to state a claim or order Plaintiffs to file a more definite statement. (ECF No. 4). As
noted above, Plaintiffs filed the instant Motion to Remand on March 27, 2017, citing to similar
cases from this District in which the Court declined to resolve personal jurisdiction issues prior
to addressing the straight-forward subject matter jurisdiction analysis, and remanded the cases
due to the facial lack of complete diversity.
In their response to Plaintiffs’ Motion to Remand, Defendants urge this Court to consider
the issue of personal jurisdiction before addressing subject matter jurisdiction. The Supreme
Court has held that courts have discretion to consider the issue of personal jurisdiction before
considering whether they have subject matter jurisdiction, “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.” Dorman v. Bayer Corp., No. 4:16CV601 HEA,
2016 WL 7033765, at *1 (E.D. Mo. Dec. 2, 2016) (citing Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 588 (1999)). “However, ‘in most instances subject-matter jurisdiction will involve no
arduous inquiry…[and] both expedition and sensitivity to state courts’ coequal stature should
impel the federal court to dispose of that issue first.’” Id. (quoting Ruhrgas, 526 U.S. at 587-88).
See also Swann v. Johnson & Johnson, No. 4:14CV1546 CAS, 2014 WL 6850776, at *2 (E.D.
Mo. Dec. 3, 2014) (declining to consider issues of personal jurisdiction and venue when the issue
of subject matter jurisdiction was straightforward and had already been addressed by judges in
this district). Upon consideration, this Court in its discretion will determine the issue of subject
matter jurisdiction first, as the question of personal jurisdiction requires a more fact-intensive
inquiry. Dorman, 2016 WL 7033765, at *1.
In Triplett v. Janssen Pharmaceuticals, Inc., No. 4:14CV2049 AGF, ECF No. 30 (E.D.
Mo. July 7, 2015), another Court in this District held that Defendants failed to establish
fraudulent joinder based on the purported lack of personal jurisdiction. (See Id., P. 7). The
Court cited two other recent cases from this district that so held, Gracey v. Janssen Pharms.,
Inc., No. 4:15CV407 CEJ, 2015 WL 2066242, at *3 (E.D. Mo. May 4, 2015), and Simmons v.
Sketchers USA, Inc., No. 4:15CV340 CEJ, 2015 WL 1604859, at *3 (E.D. Mo. Apr. 9, 2015), as
well as numerous cases from other districts.
The Court concluded that because the defendants’ theory of fraudulent joinder
failed to attack the merits of the non-diverse plaintiffs’ claims, the defendants
failed to establish that there is no reasonable basis in fact or law supporting these
claims. Therefore, the Court concluded that the defendants failed to satisfy their
burden to establish fraudulent joinder, and the Court remanded the case for lack of
subject matter jurisdiction, leaving to the state court the question of personal
Ward v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 4:15CV408 AGF, ECF No. 33, P. 4
(E.D. Mo. July 13, 2015) (citing Triplett, No. 4:14CV2049 AGF, ECF No. 30, PP. 8-10).
Upon consideration, this Court will follow the approach taken in Triplett, and remand this
case for lack of subject matter jurisdiction. See Ward, No. 4:15CV408 AGF, ECF No. 33, P. 4.
See also T.R. v. Janssen Pharmaceuticals, Inc., No. 4:16CV1860 CEJ, 2017 WL 492827, at *3
(E.D. Mo. Feb. 7, 2017) (internal quotations and citations omitted) (“Courts in this district have
repeatedly held that an alleged lack of personal jurisdiction does not establish fraudulent
joinder….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.”).
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (ECF No. 15) is
GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State
of Missouri. A separate Order of Remand will accompany this Memorandum and Order.
Dated this 10th Day of April, 2017.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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