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

Filing 19

MEMORANDUM AND ORDER OF REMAND: IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Doc. 9 ) is GRANTED. IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court of the City of St. Louis under 28 U.S.C. § 1447(c). The Clerk of Court is directed to mail to the clerk of the Circuit Court for the City of St. Louis a certified copy of this Memorandum and Order. IT IS FURTHER ORDERED that Defendants Motion to Dismiss, or in the Alternative, Motion for a More Definit e Statement (Doc. 4 ), and Plaintiffs' Motion to Stay (Doc. 11)are DENIED without prejudice as moot. Signed by District Judge John A. Ross on 5/11/2017. (CLO) (Certified Copy of Order and Copy of Docket Sheet Mailed to the Circuit Court for the City of St. Louis as of this date)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

NATASHA REESE, et al.,
Plaintiffs,
vs.

JANSSEN
PHARMACEUTICALS, INC., et al.,
Defendants.

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Case No. 4:17-cv-01317-JAR

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Defendants Janssen Pharmaceuticals, Inc.; Johnson &
Johnson; Janssen Research & Development, LLC; and Patriot Pharmaceuticals, LLC’s Motion to
Dismiss, or in the Alternative, Motion for More Definite Statement (Doc. 4); Plaintiffs’ Motion
to Remand (Doc. 9); and Plaintiffs’ Motion to Stay (Doc. 11). For the following reasons, the
Court will grant Plaintiffs’ Motion to Remand (Doc. 9), and deny all other pending motions
without prejudice (Docs. 4, 11).
Background
On February 27, 2017, Plaintiffs filed this action in the City of St. Louis Circuit Court
(Doc. 6). Their petition alleges several state law claims against Defendants arising out of the
design, development, testing, labeling, packaging, distribution, marketing, and sale of Risperdal
(risperidone), Invega (paliperidone), and generic risperidone (Id. at 3, 23-37, 41-58). Plaintiffs
allege that they or their spouses, children, wards, and/or decedent family members ingested
Invega, Risperdal, or an authorized generic thereof, and developed various serious and/or
permanent adverse effects as a result (Id. at 3-15, 37-40). Plaintiffs are 72 unrelated individuals
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who are citizens of Alabama, Arizona, California, Colorado, Florida, Georgia, Idaho, Indiana,
Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, Missouri,
Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island,
Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin (Id. at 5-15; Doc. 1 at
11-12).
On April 13, 2017, Defendants removed the action to this Court on the basis of diversity
jurisdiction (Doc. 1). The parties, however, are not diverse. Two plaintiffs and Johnson &
Johnson are citizens of New Jersey; two plaintiffs and Janssen Research & Development, LLC
are citizens of Pennsylvania. Patriot Pharmaceuticals, LLC is a citizen of Pennsylvania and New
Jersey. Janssen Pharmaceuticals is a Pennsylvania corporation with its principal place of
business in New Jersey (Docs. 1 at 11-12; 6 at 5, 7, 15-17 64, 66).
Despite the lack of complete diversity on the face of the complaint, Defendants have
moved to dismiss the claims of all non-Missouri plaintiffs for lack of personal jurisdiction, or
alternatively, for failure to state a claim, arguing that the Court should address these issues,
before it reaches the issue of subject matter jurisdiction (Docs. 4-5). In Defendants’ view, each
Plaintiff must establish that the Court has personal jurisdiction over his or her individual claim,
and that the Court lacks personal jurisdiction over the non-Missouri Plaintiffs’ individual claims
(Doc. 5 at 2-3). Defendants do not dispute that the Court has personal jurisdiction with regard to
the Missouri Plaintiffs’ claims (Id. at 2). Defendants also argue that Plaintiffs have failed to
allege sufficient facts to state viable claims against them (Id. at 13-15).
Plaintiffs move to remand the case back to the state court, arguing that removal based on
diversity jurisdiction was improper because the parties are not completely diverse and the Court
thus lacks subject matter jurisdiction (Docs. 9-10). Defendants oppose remand, arguing that the

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non-Missouri plaintiffs have been “fraudulently joined” to defeat diversity jurisdiction, and that
their citizenship should thus be disregarded for purposes of determining whether the parties are
completely diverse (Docs. 1, 16). Specifically, Defendants argue that the non-Missouri Plaintiffs’
claims are fraudulent because their claims have no basis in fact and law, i.e., because no
Missouri court can, consistently with the Due Process Clause of the United States Constitution,
order recovery on a claim over which it lacks personal jurisdiction (Docs. 1 at 18-21; 16).
Defendants urge the Court to address the issue of personal jurisdiction—the resolution of which
they believe would render the parties completely diverse—before reaching the issue of subject
matter jurisdiction (Doc. 16). Plaintiffs have also moved to stay the case pending the Court’s
ruling on their motion to remand, which Defendants oppose (Docs. 11-12, 15, 18).
Discussion
It is clearly within the Court’s discretion whether to decide issues of personal or subject
matter jurisdiction first. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999)
(recognizing that where, as here, the issue of subject matter jurisdiction is straightforward,
“expedition and sensitivity to state courts’ coequal stature should impel the federal court to
dispose of that issue first.”). Here, the Court declines to rule on issues of personal jurisdiction
first, as the inquiry regarding subject matter jurisdiction is not arduous, and the issues of personal
jurisdiction and failure to state a claim would require a more fact-intensive inquiry. Timms v.
Johnson & Johnson, No. 4:16-CV-00733-JAR, 2016 WL 3667982, at *2 (E.D. Mo. July 11,
2016) (citing Curtis Henderson v. Combe Inc., Case No. 4:16-CV-283-RWS, ECF No. 10 (E.D.
Mo. Mar. 24, 2016)).
“A defendant may remove a state law claim to federal court only if the action originally
could have been filed there.” In re Prempro Products Liability Litigation, 591 F.3d 613, 619 (8th

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Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)); see also 28 U.S.C. §
1441(a). The party invoking jurisdiction bears the burden of establishing federal jurisdiction by a
preponderance of the evidence. Altimore v. Mount Mercy College, 420 F.3d 763, 768 (8th Cir.
2005). “All doubts about federal jurisdiction should be resolved in favor of remand to state
court.” Prempro, 591 F.3d at 620 (citing Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
2007)).
Federal district courts generally have original jurisdiction in 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)). Diversity jurisdiction also requires complete diversity of the
parties, i.e., that no defendant hold citizenship in the same state where any plaintiff holds
citizenship. OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007) (citing
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)).
Here, Defendants assert that this case falls within the “fraudulent joinder” doctrine.
“Courts have long recognized fraudulent joinder as an exception to the complete diversity rule.”
Prempo, 591 F.3d at 620. “Fraudulent joinder occurs when a plaintiff files a frivolous or
illegitimate claim against a non-diverse defendant solely to prevent removal.” Id. (citing Filla v.
Norfolk S. Ry. Co., 336 F.2d 806, 809 (8th Cir. 2003)). To establish fraudulent joinder, the
removing party must show that “the plaintiff’s claim against the diversity-destroying defendant
has ‘no reasonable basis in fact and law.’” Knudson v. Systs. Painters, Inc., 634 F.3d 968, 980
(8th Cir. 2011) (quoting Filla, 336 F.3d at 810). “[I]f it is clear under governing state law that the
complaint does not state a cause of action against the non-diverse defendant, the joinder is
fraudulent and federal jurisdiction of the case should be retained.” Id. In contrast, “joinder is not

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fraudulent where ‘there is arguable a reasonable basis for predicting that the state law might
impose liability based upon the facts involved.’” Id. (quoting Filla, 336 F.3d at 811).
Fraudulent misjoinder is a more recent exception to the complete diversity rule. As
explained by the Eighth Circuit, “[f]raudulent 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.” Prempo, 591 F.3d at 620. While
acknowledging the fraudulent misjoinder doctrine, the Eighth Circuit has expressly declined to
adopt or reject it. Id. at 622.
Defendants attempt to frame their argument in terms of fraudulent joinder. However, the
Court concludes that, properly characterized, Defendants argument is instead based on the theory
of fraudulent misjoinder. As Defendants themselves note, “[f]raudulent misjoinder challenges the
propriety of joining viable claims into a single action while fraudulent joinder challenges the
viability of the claims themselves” (Doc. 16 at 14). Here, Defendants do not dispute that the nonMissouri Plaintiffs have plausible claims under substantive state law; rather, they challenge the
propriety of joining the non-Missouri Plaintiffs into a single action over which the Court has
established personal jurisdiction over Defendants. 1 See Gracey v. Janssen Pharm., Inc., No. 4:15CV-407 (CEJ), 2015 WL 2066242, at *3 (E.D. Mo. May 4, 2015) (discussing distinction
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Defendants argue that no Missouri court can, consistently with due process, exercise personal
jurisdiction over them with respect to the non-Missouri Plaintiffs’ claims (Docs. 1, 5).
Defendants do not dispute, however, that Missouri courts have personal jurisdiction over them
with respect to the Missouri Plaintiffs’ claims. See Shaffer v. Heitner, 433 U.S. 186, 204 (1977)
(the central concern of due process inquiry for personal jurisdiction is “the relationship among
the defendant, the forum, and the litigation”); see also Walden v. Fiore, 134 S. Ct. 1115, 1126
(2014) (“[I]t is the defendant, not the plaintiff or third parties, who must create contacts with the
forum State.”); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779 (1984) (authorizing states to
exercise personal jurisdiction over non-resident defendants even where the plaintiff’s contacts
with the forum are “extremely limited” or even “entirely lacking”).
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between fraudulent joinder and fraudulent misjoinder where, after removing case to federal
court, Defendants argued the state court lacked personal jurisdiction over individual claims of
out-of-state plaintiffs). Thus, the real issue before the Court is whether the out-of-state Plaintiffs’
claims have been properly joined under Rule 20. See Prempo, 591 F.3d at 622.
Rule 20 “allows multiple plaintiffs to join in a single action if (i) they assert claims ‘with
respect to or arising out of the same transaction, occurrence, or serious of transactions or
occurrences:’ and (ii) ‘any question of law or fact common to all plaintiffs will arise in the
action.” Prempro, 591 F.3d at 622 (quoting Fed. R. Civ. P. 20 (a)(1)). “In construing Rule 20, the
Eighth Circuit has provided a very broad definition for the term ‘transaction.’” Id. “Under the
Rules, the impulse is toward entertaining the broadest possible scope of action consistent with
fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United
Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966). Thus, Rule 20 “permit[s] all reasonably
related claims for relief by or against different parties to be tried in a single proceeding,” without
requiring ‘[a]bsolute identity of all events.” Prempro, 591 F.3d at 622 (quoting Mosley v. Gen.
Motors Corp., 497 F.2d 1330, 1333 (1974)).
The facts of this case are essentially indistinguishable from other nearly identical cases
Defendants have previously sought to remove to this Court. The Court agrees with District Judge
Carol E. Jackson, who—in another case against Defendants which involved the same drugs and
which Defendant also removed from a Missouri state court—wrote:
Plaintiffs’ claims satisfy Rule 20(a)’s standard. First, plaintiffs’ complaint raises
common questions of law or fact regarding injuries alleged from use of the same
product and arising from the same design, testing, development, labeling,
packaging, distribution, marketing, and sales practices for that product. Also,
because plaintiffs’ allegations relate to defendants’ design, manufacture, testing,
and promotion of Risperidone—occurrences common as to all plaintiffs—their
claims also arise out of the same transaction or occurrence, or series thereof. That
is so even if the end-of-the-line exposures occurred in different states and under
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the supervision of different medical professionals. Thus, joinder of all sixty-four
plaintiffs’ claims under Rule 20(a) is proper.
Gracey, 2015 WL 2066242, at *4 (remanding action back to state court); see also T.R. v. Janssen
Pharm., Inc., No. 4:16-CV-1860-CEJ, 2017 WL 492827, at *3-4 (E.D. Mo. Feb. 7, 2017) (same).
As courts in this District have repeatedly found, the joinder of plaintiffs alleging injury from a
single product is not “egregious,” because common issues of law and fact connect such
plaintiffs’ claims. See e.g., Langston v. Bayer Corp., No. 4:17-CV-008880-JAR, ECF No. 37
(E.D. Mo. May 9, 2017) (Essure contraceptive device); Timms, 2016 WL 3667982, at *3 (talcum
powder); Valle v. Ethicon, Inc., No. 4:13-CV-798 (RWS) (E.D. Mo. Apr. 29, 2013) (transvaginal
mesh products); T.F. v. Pfizer, Inc., No. 4:12–CV–1221 (CDP), 2012 WL 3000229, at *1 (E.D.
Mo. July 23, 2012) (Zoloft®); S.L. v. Pfizer, Inc., No. 4:12-cv-420 (CEJ) (E.D. Mo. Apr. 4,
2012) (Zoloft®); Douglas v. GlaxoSmithKline, LLC, No. 4:10-cv-971 (CDP), 2010 WL
2680308, at *2 (E.D. Mo. July 1, 2010) (Avandia®).
In this case, Plaintiffs have filed suit against Defendants for injuries that allegedly were
caused by Risperdal, Invega, and generic risperidone; and that allegedly arose out of Defendants’
design, development, testing, labeling, packaging, distribution, marketing, and sale of those
drugs. Common questions of law and fact are likely to arise in this action, including the causal
link between the drugs and the alleged harms they cause, and whether Defendants knew of the
alleged danger. Because Plaintiffs all allege injuries arising out of the use of Risperdal, Invega,
or generic risperidone, the Court cannot say that Plaintiffs’ claims have no logical connection to
each other such that they are “egregiously misjoined.” Prempro, 591 F.3d at 623. In short,
Plaintiffs’ claims are sufficiently related to support joinder in this case, and Defendants have
failed to meet their burden of demonstrating diversity of citizenship as required by 28 U.S.C. §

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1332. Therefore, this Court lacks subject matter jurisdiction over this matter, and will remand the
case back to state court.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (Doc. 9) is GRANTED.
IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court of
the City of St. Louis under 28 U.S.C. § 1447(c). The Clerk of Court is directed to mail to the
clerk of the Circuit Court for the City of St. Louis a certified copy of this Memorandum and
Order.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss, or in the
Alternative, Motion for a More Definite Statement (Doc. 4), and Plaintiffs’ Motion to Stay (Doc.
11) are DENIED without prejudice as moot.

Dated this 11th day of May, 2017.
__________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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