Spain et al v. Janssen Pharmaceuticals, Inc. et al

Filing 23

MEMORANDUM AND ORDER -...IT IS HEREBY ORDERED that plaintiffs' motion to remand is GRANTED. [Doc. 8] IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the City of St. Louis for lack of subject matter juris diction pursuant to 28 U.S.C. § 1447(c). IT IS FURTHER ORDERED that plaintiffs' Motion for Leave to File Supplemental Authority is GRANTED. [Doc. 21] IT IS FURTHER ORDERED that all other motions are DENIED without prejudice as moot. [Docs. 4, 10] An appropriate Order of Remand will accompany this Memorandum and Order.. Signed by District Judge Charles A. Shaw on 3/5/2018. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRANDON SPAIN, et al.,
Plaintiffs,
v.
JANSSEN PHARMACEUTICALS,
INC., et al.,
Defendants.

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No. 4:17-CV-1308 CAS

MEMORANDUM AND ORDER
This matter is before the Court on defendants Janssen Pharmaceuticals, Inc., Johnson &
Johnson Company, Janssen Research and Development, LLC, and Patriot Pharmaceuticals, L.L.C.’s
motion to dismiss the claims of the out-of-state plaintiffs for lack of personal jurisdiction, or in the
alternative, motion for more definite statement. Also before the Court are plaintiffs’ motion to
remand and motion to stay these proceedings. The motions are fully briefed and ripe for disposition.
I. Background
On March 3, 2017, 87 plaintiffs filed this action in the Circuit Court of the City of St. Louis
State of Missouri, alleging ten state law causes of action against defendants arising out of their
manufacture and sale of the drug Risperdal/Invega (“Risperdal”). Plaintiffs, who are comprised of
minor children, parents and/or guardians of minor children, and adult plaintiffs, allege that they have
suffered serious injury and damages that were caused by Risperdal. They bring state law claims for
negligence (Count I); fraud (Count II); strict product liability–failure to warn (Count III); strict
product liability (Count IV); negligent misrepresentation (Count V); breach of express warranty

(Count VI); breach of implied warranty (Count VII); violation of Missouri Merchandising Practices
Act (Count VIII); conspiracy (Count IX); and medical expenses incurred by parent (Count X).
Defendants removed the action to this Court on the basis of diversity jurisdiction. In their
notice of removal, defendants aver “this removal does not in any way rely on the so-called
‘fraudulent misjoinder’ doctrine as explained in Kirkland v. Wyeth (In re Prempro Products Liability
Litigation), 591 F.3d 613 (8th Cir. 2010).” Doc. 1 at 2 (emphasis in original). According to
defendants, “the United States District Court for the Eastern District of Missouri, Eastern Division,
has original subject matter jurisdiction of this civil action pursuant to 28 U.S.C. § 1332(a) because
there is complete diversity among all properly joined and served parties, and the amount in
controversy exceeds $75,000.00, exclusive of interest and costs.” Id. at 2-3.
It is undisputed that defendants are all citizens of New Jersey or Pennsylvania for the
purposes of determining diversity. 28 U.S.C. § 1332(c)(1).1 Plaintiffs are alleged to be citizens of
the District of Columbia and the following 27 states: Missouri, New Jersey, Pennsylvania, Alabama,
Arkansas, California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Massachusetts,

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Defendant Janssen Pharmaceuticals, Inc. (formerly known as Ortho-McNeil-Janssen
Pharmaceuticals, Inc., and as Janssen Pharmaceutica, Inc.), is a Pennsylvania corporation with its
principal place of business in New Jersey. Defendant Johnson & Johnson Company is a citizen of
New Jersey, where it is organized and where its principal place of business is located. Defendant
Janssen Research & Development, LLC (formerly known as Johnson & Johnson Pharmaceutical
Research & Development, LLC), is a New Jersey limited liability company, the sole member of
which is Centocor Research & Development, Inc. Centocor Research & Development, Inc. is a
corporation incorporated under the laws of Pennsylvania with its principal place of business in
Pennsylvania. As Centocor Research & Development, Inc. is a Pennsylvania corporation, Janssen
Research & Development, LLC, is a citizen of Pennsylvania for purposes of determining
jurisdiction. See, e.g., GMAC Commerical Credit LLC v. Dillard Dep’t Stores, Inc., 357 F.3d 827,
829 (8th Cir. 2004) (holding that “an LLC’s citizenship is that of its members for diversity
jurisdiction purposes”). Patriot Pharmaceuticals, L.L.C. is a Pennsylvania limited liability company,
the sole member of which is Janssen Pharmaceuticals, Inc. Therefore, Patriot Pharmaceuticals, LLC
is a citizen of Pennsylvania and New Jersey for purposes of determining jurisdiction.
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Maryland, Maine, Minnesota, Mississippi, North Carolina, North Dakota, New York, Ohio, Rhode
Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin. As there are plaintiffs from
New Jersey and Pennsylvania, complete diversity does not exist on the face of the complaint.
Despite the lack of complete diversity on the face of the complaint, defendants assert that
federal diversity jurisdiction exists because this Court does not have general jurisdiction over the
defendants to hear plaintiffs’ claims, and none of the out-of-state plaintiffs can establish specific
personal jurisdiction over the defendants in Missouri. Defendants have filed a motion to dismiss the
claims of all the out-of-state plaintiffs for lack of personal jurisdiction, and urge to the Court to
address that motion first. According to defendants, granting the motion to dismiss is straightforward
and will create complete diversity between defendants and the remaining Missouri plaintiffs. In the
alternative, defendants argue that the citizenship of all non-Missouri plaintiffs should be disregarded
because their claims were “fraudulently joined” in that these plaintiffs cannot establish personal
jurisdiction over any defendant in any court in Missouri. Doc. 1 at 7-8, 18-20.
Plaintiffs move to remand the case to state court. Plaintiffs assert that there is a lack of
complete diversity of the parties and no federal question is raised. Plaintiff note that judges in this
District, including the undersigned, have remanded numerous similar multi-plaintiff actions
involving the same product and same defendants. Plaintiffs urge the Court to follow these decisions
and address the straightforward issue of subject matter jurisdiction before addressing personal
jurisdiction, which is more complicated and fact dependent.

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II. Discussion
A.

Order of Addressing Threshold Issues

A federal court may not proceed in a case unless it has subject matter jurisdiction. See
Crawford v. F. Hoffman-La Roche Ltd., 267 F.3d 760, 764 (8th Cir. 2001). Certain threshold issues,
however, such as personal jurisdiction, may be addressed without a finding of subject matter
jurisdiction, “provided that the threshold issue is simple when compared with the issue of subject
matter jurisdiction.” Id. (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999)). It is
within the Court’s discretion to determine whether to decide the issues of personal jurisdiction or
subject matter jurisdiction first. Id. The Supreme Court in Ruhrgas acknowledged, however, that
“in most instances subject-matter jurisdiction will involve no arduous inquiry” and “[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.
In the past, when presented with cases such as this, the undersigned has addressed the issue
of subject matter jurisdiction first. See, e.g., Swann v. Johnson & Johnson, No. 4:14-CV-1546 CAS,
2014 WL 6850776, at *1 (E.D. Mo. Dec. 3, 2014). But since last taking up the issue, there have
been two recent decisions from the United States Supreme Court and the Missouri Supreme Court
addressing personal jurisdiction: Bristol-Myers Squibb Co. v. Super. Ct. of Cal., S. F. Cnty.,137
S. Ct. 1773 (2017); and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41 (Mo. 2017) (en
banc). Defendants argue that these two cases simplify the personal jurisdiction inquiry where there
are multiple out-of-state plaintiffs and national defendants. Defendants contend that cases such as
Swann, 2014 WL 6850776, at *1, are no longer good law, and they urge the Court to follow another
case from this district where personal jurisdiction was addressed first. Siegfried v. Boehringer

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Ingelheim Pharm., Inc., No. 4:16-CV-1942 CDP, 2017 WL 2778107, at *1-6 (E.D. Mo. June 27,
2017).
The Court does not agree that Bristol-Myers, 137 S. Ct. 1773, and State ex rel. Norfolk S.
Ry., 512 S.W.3d 41, have changed the law established in Ruhrgas, 526 U.S. 574. It is still within
the Court’s discretion to decide which threshold issue to address first, taking into account which
issue is simpler and can be decided more expeditiously. Ruhrgas, 526 U.S. at 587-88. The Court
notes that even after Bristol-Myers, and State ex rel. Norfolk S. Ry., there has been no consensus
in this District as to which issue to address first. See, e.g., Sheffield v. Janssen Pharm., Inc., No.
4:17-CV-1254 RLW, 2017 WL 5953104, at *1 (E.D. Mo. Nov. 29, 2017), reconsideration denied,
No. 4:1-CV-1254 RLW, 2018 WL 280786 (E.D. Mo. Jan. 3, 2018) (addressing the issue of subject
matter jurisdiction first, and remanding to state court for lack of diversity jurisdiction); Somerville
v. Janssen Pharm., No. 4:17-CV-1307-RLW, 2017 WL 5903500, at *1 (E.D. Mo. Nov. 28, 2017),
reconsideration denied, No. 4:17-CV-1307 RLW, 2018 WL 280787 (E.D. Mo. Jan. 3, 2018) (same).
The recent decisions by the United States Supreme Court and the Missouri Supreme Court
may make the issue of personal jurisdiction easier to decide when there is no evidence that the outof-state plaintiffs’ claims arise out of defendants’ contacts within this state, Siegfried, 2017 WL
2778107, at *1-6, see also Covington v. Janssen Pharms. Inc.¸ No. 4:17-CV-1588 SNLJ, 2017 WL
3433611, at *5 (E.D. Mo. Aug. 10, 2017), but that is not necessarily the case here. In opposing
defendants’ motion to dismiss for lack of personal jurisdiction, plaintiffs maintain that they have
evidence that the defendants generated and disseminated information about Risperdal and its use in
children and adolescents both in and out of Missouri. Plaintiffs also state that they have evidence
the defendants partnered with Washington University School of Medicine in St. Louis to conduct

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Risperdal studies, and subsequently used the findings of those sponsored studies to aid the
defendants in nationwide marketing efforts.

Plaintiffs also assert they have evidence that

“[d]efendants recruited Missouri neurologists, psychiatrists, and pediatricians to participate in
targeted market research in Missouri, and used this market research specifically to identify the key
messages that would effectively communicate to doctors the supposed benefits of using Risperdal
in pediatric and adolescent patients with autism and severe behavioral issues.” Doc. 20 at 4.
Plaintiffs’ counsel asserts that much of this evidence was learned during discovery in other cases
involving Risperdal, and documents verifying the information is subject to a protective order.
Plaintiffs ask that they be allowed to conduct jurisdictional discovery if the Court chooses to address
the issue of personal jurisdiction first. Defendants did not respond to these assertions or arguments.
In light of these assertions, the Court finds the issue of personal jurisdiction is not so
straightforward as defendants contend. It is these sorts of contacts that might subject defendants to
personal jurisdiction within a state, even under the recent cases. See Bristol-Myers, 137 S. Ct. at
1778 (noting that the defendants had not “develop[ed] Plavix in California, did not create a
marketing strategy for Plavix in California, and [did] not . . . work on regulatory approval of the
product in California.”). Therefore, the Court will, in its discretion, address the issue of subject
matter jurisdiction first. The Court believes the issue of subject matter jurisdiction is a more
straightforward legal issue that has already been addressed by judges in this district, including the
undersigned.
B.

Subject Matter Jurisidiction

The party invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction
are satisfied. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir. 1969). s Removal

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statutes are strictly construed, and any doubts about the propriety of removal are resolved in favor
of state court jurisdiction and remand. Transit Cas. Co. v. Certain Underwriters at Lloyd’s of
London, 119 F.3d 619, 625 (8th Cir. 1997).
A state civil action may be removed to the proper district court if the district court has
original jurisdiction over the action. 28 U.S.C. § 1441(a). “Federal district courts have original
jurisdiction in all civil actions between citizens of different states if the amount in controversy
exceeds $75,000.00, exclusive of interest and costs.” Manning v. Wal–Mart Stores East, Inc., 304
F. Supp.2d 1146, 1148 (E.D. Mo. 2004) (citing 28 U.S.C. § 1332(a)(1)). Actions where jurisdiction
is predicated solely on diversity are “removable only if none of the parties in interest properly joined
and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C.
§ 1441(b). The diversity jurisdiction statute has also been interpreted to require complete diversity,
which means that “diversity jurisdiction does not exist unless each defendant is a citizen of a
different state from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373
(1978).
It is undisputed that the parties in this case are not diverse and diversity jurisdiction does not
exist. The Court further finds that defendants fail to establish fraudulent joinder based on the
purported lack of personal jurisdiction. Gracey v. Janssen Pharm., Inc., No. 4:15-CV-407 CEJ, 2015
WL 2066242, at *3 (E.D. Mo. May 4, 2015) (declining to apply doctrine of fraudulent joinder
because “defendants are not asking the Court to assess the out-of-state plaintiffs’ claims to determine
if the plaintiffs have a cause of action under substantive state law”); T.R. v. Janssen Pharms.,
4:16-CV-1860 CEJ, 2017 WL 492827, at *2 (E.D. Mo. Feb. 7, 2017) (“Courts in this district have
repeatedly held that an alleged lack of personal jurisdiction does not establish fraudulent joinder.”).

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See also Cooks v. Janssen Pharm., Inc., No. 4:17-CV-1302 AGF, 2017 WL 2189466, at *1 (E.D.
Mo. May 18, 2017); Simpson v. Janssen Pharm., Inc., No. 4:17-CV-1314 AGF, 2017 WL 2189467,
at *1 (E.D. Mo. May 18, 2017).
The Court will follow the established line of removed cases in this District involving the drug
Risperdal, the same defendants, and the same issues, and remand this case to state court for lack of
subject matter jurisdiction. See, e.g., Sheffield, 2017 WL 5953104, at *1; Somerville, 2017 WL
5903500, at *1; Cooks, 2017 WL 2189466, at *1; Simpson, 2017 WL 2189467, at *1; Reese v.
Janssen Pharms., Inc., No. 4:17-CV-1317 JAR, 2017 WL 1954635, at *2 (E.D. Mo. May 11, 2017);
Lawson v. Janssen Pharms., Inc., No. 4:17-CV-1300 JCH, 2017 WL 1684750, at *2 (E.D. Mo. May
3, 2017); Ackerson v. Janssen Pharms., No. 4:17-CV-1303 JCH, 2017 WL 1684763, at *2 (E.D. Mo.
May 3, 2017); Thomas v. Janssen Pharms., Inc., No. 4:17-CV-1298 RWS, slip op. at 2 (E.D. Mo.
May 2, 2017); Robinson, et al., v. Janssen Pharms., Inc., 4:17-CV-862 JCH, slip op. at 3 (E.D. Mo.
April 10, 2017); T.R., 2017 WL 492827, at *2; Triplett v. Janssen Pharms., Inc., No. 4:14-CV-2049
AGF, slip op. at 3 (E.D. Mo. July 7, 2015); Gracey, 2015 WL 2066242, at *3; Clayton v. OrthoMcNeil-Janssen Pharms. Inc., 4:14-CV-1927 JAR, 2015 WL 11658701, at *2 (E.D. Mo. Apr. 16,
2015); Morgan v. Janssen Pharms., Inc., No. 4:14-CV-1346 CAS, 2014 WL 6678959, at *2 (E.D.
Mo. Nov. 25, 2014); Butler v. Ortho-McNeil-Janssen Pharms., Inc., No. 4:14-CV-1485 RWS, 2014
WL 5025833, at *1 (E.D. Mo. Oct. 8, 2014). But see Covington¸ 2017 WL 3433611, at *5.
The Court finds it does not have subject matter jurisdiction to hear this case, and it remands
to the Circuit Court of the City of St. Louis. A ruling on the motion to remand does not preclude
defendants from raising the issue of personal jurisdiction in state court, including the recent
decisions of Bristol-Myers, 137 S. Ct. 1773, and State ex rel. Norfolk S. Ry., 512 S.W.3d 41. The

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Missouri courts are fully equipped to address the issue of personal jurisdiction in this case under the
state’s long arm statute. Ruhrgas, 526 U.S. at 588 (instructing district court to be sensitive of the
state courts’ “coequal stature”).
III. Conclusion
The Court finds that it lacks subject matter jurisdiction to hear this case, as the parties are
not diverse. The Court remands this case to state court.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to remand is GRANTED. [Doc. 8]
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the
City of St. Louis for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1447(c).
IT IS FURTHER ORDERED that plaintiffs’ Motion for Leave to File Supplemental
Authority is GRANTED. [Doc. 21]
IT IS FURTHER ORDERED that all other motions are DENIED without prejudice as
moot. [Docs. 4, 10]
An appropriate Order of Remand will accompany this Memorandum and Order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 5th day of March, 2018.

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