Covington et al v. Janssen Pharmaceuticals, Inc. et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants' motion to dismiss for lack of personal jurisdiction (#4) is GRANTED. The claims of all plaintiffs other than Annette Covington are dismissed without prejudice for lack of personal juri sdiction. IT IS FURTHER ORDERED that defendants' motion to dismiss for failure to state a claim upon which relief can be granted (#4) is DENIED. IT IS FURTHER ORDERED that plaintiffs' motion to remand (#14) is DENIED. IT IS FINALLY ORDERED that plaintiffs motion to stay or motion for leave to conduct jurisdictional discovery (#16) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 8/10/2017. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ANNETTE COVINGTON, et al.,
JANSSEN PHARMACEUTICALS, INC., )
Case No. 4:17-CV-1588 SNLJ
MEMORANDUM AND ORDER
This case comes before the Court on defendants’ motion to dismiss the claims of
the out-of-state plaintiffs for lack of personal jurisdiction (#4), the plaintiffs’ motion to
remand (#14), and the plaintiffs’ motion to stay any proceedings in conjunction with the
defendants’ motion to dismiss pending resolution of the plaintiffs’ motion to remand
(#16). The plaintiffs’ motions are fully briefed by the parties. However, the plaintiffs
chose not to respond to the defendants’ motion to dismiss, instead choosing to file their
motion to stay proceedings. Regardless, the motions are ripe for disposition.
This action, filed on March 8, 2017 by 54 plaintiffs from 26 states, was originally
filed in Missouri state court. The plaintiffs allege that they, or the children or
incapacitated persons whom they represent as next friends, were injured from the use of a
prescription drug researched, designed, developed, tested, labeled, packaged, distributed,
marketed and sold by the defendants called Risperdal and/or Invega. Only one plaintiff
alleges that the child or incapacitated person whom she represents as next friend,
ingested, and/or was harmed by one of the medicines in the state of Missouri. The NonMissouri plaintiffs, or those who do not have any connection to the state of Missouri, do
not allege that they were prescribed Risperdal or any of its variants in Missouri, ingested
the same in Missouri, or were injured in Missouri. Even so, the plaintiffs contend that
they are properly joined because all of the plaintiffs’ claims “arise out of the same series
of transactions and occurrences, and their claims involve common questions of law and
The defendants removed the action on May 31, 2017, contending that this Court
has proper diversity jurisdiction under 28 U.S.C. § 1332(a). However, on the face of the
complaint, diversity jurisdiction does not exist because the parties are not completely
diverse. At least one plaintiff shares citizenship with at least one defendant. Because of
this, the defendants contemporaneously moved to dismiss the claims of all out-of-state
plaintiffs for the alleged lack of personal jurisdiction over their claims. If granted,
complete diversity would exist and this court would have proper jurisdiction – both
personal and subject matter – over this action.
Instead of responding to the defendants’ motion to dismiss, the plaintiffs moved to
stay proceedings relating to that motion and moved the Court to remand the action to
state court. In the event that plaintiffs’ motion to stay is not granted, the plaintiffs move
the Court to grant limited jurisdictional discovery. In their motion to remand, the
plaintiffs claim that this Court lacks diversity jurisdiction and therefore lacks subject
matter jurisdiction. They maintain that this Court should exercise its discretion to address
their subject matter jurisdiction challenge before addressing the defendants’ challenge of
personal jurisdiction over the non-Missouri plaintiffs. The plaintiffs cite many cases
from this district that remanded similar actions by choosing to address subject matter
jurisdiction before personal jurisdiction. But these cases were decided before BristolMyers Squibb v. Super. Ct. of Cal., 137 S. Ct. 1773 (2017).
A. Jurisdictional Discretion
As both parties agree, there is “no unyielding jurisdictional hierarchy” and it is
within the Court’s discretion whether to address subject matter jurisdiction or personal
jurisdiction first. See 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 on ruling on that issue
that could travel back and bind the state court, and decide the more straightforward issue
first.” Siegfried v. Boehringer Ingelheim Pharm., Inc., No. 4:16-CV-1942 (CDP), 2017
WL 2778107, at *2 (E.D. Mo. June 27, 2017) (citing Ruhrgas, 526 U.S. at 585-86).
Where the parties disagree, however, is which analysis – subject matter jurisdiction or
personal jurisdiction – presents the more straightforward issue that should be addressed
Historically – and especially in this district – courts generally have addressed
subject matter jurisdiction first because in most instances it “involve[d] no arduous
inquiry.” Ruhrgas, 526 U.S. at 587. See Siegfried, 2017 WL 2778107, at *2 n.2. In fact,
the Ruhrgas Court plainly held that “we recognize that in most instances subject-matter
jurisdiction will involve no arduous inquiry” and “[is] often . . . the most efficient way of
going.” Ruhrgas, 526 U.S. at 587 (internal quotation omitted). However, the Court also
held that when “a district court has before it a straightforward personal jurisdiction issue
presenting no complex question of state law, and the alleged defect in subject-matter
jurisdiction raises a difficult and novel question, the court does not abuse its discretion by
turning directly to personal jurisdiction.” Id. at 588.
The plaintiffs claim that the personal jurisdiction analysis is much more complex
and fact dependent than the subject matter jurisdiction analysis because the subject matter
jurisdiction analysis in this case is well established and easily resolved. In support, the
plaintiffs contend that the defendants’ “sole basis for removal rests on a theory that has
been repeatedly rejected by the Judges in this District, i.e., fraudulent joinder based upon
an alleged lack of personal jurisdiction.” Indeed, courts in this district addressing
fraudulent joinder “have found that personal jurisdiction requires a more fact-intensive
inquiry than the straightforward legal issue of subject-matter jurisdiction.” Dorman v.
Bayer Corp., No. 4:16-CV-601 (HEA), 2016 WL 7033765, at *1 (E.D. Mo. Dec. 2,
However, these cases were decided before Bristol-Myers Squibb v. Super. Ct. of
Cal., 137 S. Ct. 1773 (2017) and State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41
(Mo. 2017) (en banc). These decisions “make the personal jurisdiction issue in this case
It should be noted that many of the supporting cases referenced by the plaintiffs cite whether other cases
within the district had already ruled on a specific issue or specific facts. See, e.g., Dorman, 2016 WL, at
*1-2; Robinson v. Pfizer, Inc., No. 4:16-CV-439 (CEJ), 2016 WL 1721143, at *4 (E.D. Mo. April 29,
2016); Joseph v. Combe Inc., No. 4:16-CV-284 (RLW), 2016 WL 3339387, at *1-2 (E.D. Mo. June 13,
much easier to decide.” Siegfried, 2017 WL 2778107, at *2. As noted by Judge Perry in
Siegfried, “[r]emanding this case for lack of complete diversity, only to have the case
removed again later once the non-Missouri plaintiffs are dismissed, would be a waste of
judicial resources.” Id. Further, analyzing the challenge to personal jurisdiction first
avoids any issues relating to fraudulent joinder. Id. “Personal jurisdiction is now the
more straightforward inquiry” and should be addressed first as it “is in the interests of
judicial economy and expeditiousness.” Id. at *3 (internal citations omitted). See also
Turner v. Boehringer Ingelheim Pharm., Inc., No. 4:17-CV-1525 (AGF), 2017 WL
3310696, at *2 (E.D. Mo. Aug. 3, 2017); Jordan v. Bayer Corp., No. 4:17-CV-865 (CEJ),
2017 WL 3006993, at *2 (E.D. Mo. July 14, 2017).
Because this Court finds that addressing defendants’ challenge to personal
jurisdiction presents the more straightforward inquiry under recent court decisions, the
Court will exercise its discretion to address that issue before addressing any challenge to
subject matter jurisdiction.
B. Motion to Stay
The Court’s “power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
254 (1936). In evaluating a motion to stay, a district court must “weigh competing
interests and maintain an even balance.” Id. at 255. The movant must “make out a clear
case of hardship or inequity.” Id. “Factors relevant to a district court's determination of
whether to stay proceedings include maintaining control of its docket, conserving judicial
resources, and providing for the just determination of cases pending before it.” Burford
v. Monsanto Co., 4:16-CV-536 (PLC), 2016 WL 2878469, at *3 (E.D. Mo. July 18,
2016) (citing Webb v. R. Rowland & Co., Inc., 800 F.2d 803, 808 (8th Cir. 1986)).
The plaintiffs move to stay all proceedings in conjunction with the defendants’
motion to dismiss pending resolution of plaintiffs’ motion to remand.2 In support,
plaintiffs contend that the plaintiffs would suffer hardship in that they would be required
to expend substantial time and resources to conduct jurisdictional discovery and respond
to defendants’ motion to dismiss, which would be rendered moot if this Court remanded
the case. Further, plaintiffs, as noted above, contend that defendants’ removal was
The Court holds that the plaintiffs have failed to adequately explain why
disposition of defendants’ motion to dismiss should be delayed while plaintiffs’ motion to
remand should be resolved – especially in light of two major holdings that undoubtedly
impact this case. The plaintiffs’ choice to not respond to the defendants’ motion to
dismiss and instead to file this motion to stay only extends the disposition of this case,
requiring more time and more judicial resources. Additionally, the plaintiffs fail to show
a clear case of hardship or inequity. Their argument – that a stay should be granted to
delay disposition of the defendants’ motion to dismiss because a grant of the plaintiffs’
motion to remand would render the motion to dismiss as moot – is unreasonable. It is
true that a grant of the defendants’ motion to remand would render the motion to dismiss
Plaintiffs alternative argument within their motion to stay is to allow the plaintiffs to conduct
jurisdictional discovery. That argument is discussed below.
as moot. It is also true that a grant of the defendants’ motion to dismiss would render
plaintiffs’ motion to remand as moot. A motion to stay should not be abused by a party
to dictate which motion is first addressed by the Court. Further, the filing of a motion to
stay does not act as a means to extend deadlines to outstanding motions – such as
defendants’ motion to dismiss in this case. The plaintiffs’ motion to stay is denied. The
Court, exercising its discretion, will now turn to defendants’ motion to dismiss.
C. Rule 12(b)(2) Motion to Dismiss
“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must
state sufficient facts in the complaint to support a reasonable inference that the
defendants can be subjected to jurisdiction within the state.” Dever v. Hentzen Coatings,
Inc., 380 F.3d 1070, 1072 (8th Cir. 2004) (internal quotation marks and citations
omitted). “Once jurisdiction ha[s] been controverted or denied, [the plaintiff] ha[s] the
burden of proving such facts.” Id. “The plaintiff's prima facie showing must be tested,
not by the pleadings alone, but by the affidavits and exhibits presented with the motions
and in opposition thereto.” Id. The evidence must be viewed in the light most favorable
to the plaintiffs and the Court must resolve all factual conflicts in favor of the plaintiffs.
Epps v. Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir. 2003).
D. Personal Jurisdiction
“Personal jurisdiction over a defendant represents the power of a court to enter a
valid judgment imposing a personal obligation or duty in favor of the plaintiff.”
Viasystems, Inc. v. EBM–Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 592 (8th
Cir. 2011) (internal quotation marks and citation omitted). “Personal jurisdiction can be
specific or general.” Id. at 593. “Specific jurisdiction refers to jurisdiction over causes of
action arising from or related to a defendant's actions within the forum state, while
general jurisdiction . . . refers to the power of a state to adjudicate any cause of action
involving a particular defendant, regardless of where the cause of action arose.” Id.
(internal quotation marks and citations omitted). A corporation is subject to general
jurisdiction in forums where incorporated and where it has its principal place of business.
Daimler AG v. Bauman, 134 S. Ct. 746, 754 (2014). Here, no defendant is incorporated
in Missouri nor has its principal place of business in Missouri. Missouri does not have
general personal jurisdiction over the defendants in this case.
Specific jurisdiction involves suits “arising out of or related to the defendant’s
contacts with the forum.” Daimler, 134 S. Ct. at 751. “Specific jurisdiction is warranted
when the defendant purposefully directs its activities at the forum state and the litigation
results from injuries . . . relating [to the defendant's] activities [in the forum state.]”
Myers v. Casino Queen, Inc., 689 F.3d 904, 912–13 (internal quotation marks and
citations omitted). “Specific personal jurisdiction can be exercised by a federal court in a
diversity suit only if authorized by the forum state's long-arm statute and permitted by the
Due Process Clause of the Fourteenth Amendment.” Id. The requirements of Missouri's
long-arm statute and the Due Process Clause present two, independent inquiries that must
be addressed separately, and failure to satisfy either precludes the exercise of specific
personal jurisdiction. Myers v. Casino Queen, Inc., 689 F.3d 904, 909–10 (8th Cir.
It is not necessary to consider the application of Missouri's long-arm statute in this
case because the exercise of personal jurisdiction is not permitted by the Due Process
Clause. To satisfy due process, a defendant must have sufficient minimum contacts with
the forum state such that the assertion of jurisdiction “does not offend traditional notions
of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945). “The substantial connection between the defendant and the forum State
necessary for a finding of minimum contacts must come about by an action of the
defendant purposefully directed toward the forum State.” Myers, 689 F.3d at 911
(internal quotation marks and citations omitted).
In this case, plaintiffs contend that the Missouri state court, and therefore this
Court sitting in diversity jurisdiction, has specific personal jurisdiction over all of the
plaintiffs’ claims. Plaintiffs argue that the defendants’ conduct gave rise to this action
and the defendants’ contacts with Missouri constitute part of the same series of
transactions for all of the plaintiffs. In particular, plaintiffs allege that the defendants’
contacts to the state of Missouri include research, development, testing, manufacturing,
production, promotion, distribution, marketing, and selling of Risperdal in the state of
Missouri. The defendants do not dispute that this Court has proper personal jurisdiction
over the plaintiff who alleges she were injured in the state of Missouri. However, the
defendants do dispute that this Court has personal jurisdiction over all of the other
plaintiffs who do not allege any contact or connection to this forum. As noted, besides
the Missouri plaintiff, no other plaintiff allege that they, or a child or incapacitated person
whom they represent as next friend, were prescribed or purchased Risperdal in this state,
suffered an injury from Risperdal in this state, or received treatment for an injury from
Risperdal in this state.
Having found that this court lacks general personal jurisdiction over the
defendants, for the reasons more fully espoused by Judge Perry in Siegfried, this Court
also lacks specific personal jurisdiction over the defendants. See Siegfried, 2017 WL
2778107 at *4-5. In Bristol-Myers Squibb, a case factually similar to this case, the
United States’ Supreme Court held that the state of California did not have specific
jurisdiction over non-resident pharmaceutical companies for plaintiffs’ claims against
them that did not arise out of or relate to the companies’ contacts with the forum.
Bristol-Myers Squibb, 137 S. Ct. at 1780-1783. The Court clarified the status of specific
Our settled principles regarding specific jurisdiction control this case. In
order for a court to exercise specific jurisdiction over a claim, there must be
an “affiliation between the forum and the underlying controversy,
principally, [an] activity or an occurrence that takes place in the forum
State.” Goodyear, 564 U.S., at 919, 131 S.Ct. 2846 (internal quotation
marks and brackets in original omitted). When there is no such connection,
specific jurisdiction is lacking regardless of the extent of a defendant's
unconnected activities in the State. See id., at 931, n. 6, 131 S.Ct. 2846
(“[E]ven regularly occurring sales of a product in a State do not justify the
exercise of jurisdiction over a claim unrelated to those sales”).
Id. at 1781. Finally, the Court held that the “mere fact that other plaintiffs were
prescribed, obtained, and ingested Plavix in California – and allegedly sustained the same
injuries as did the nonresidents – does not allow the State to assert specific jurisdiction
over the nonresidents' claims.” Id.
In this case, 53 of the 54 total plaintiffs failed to allege that they ingested the drug
in the state of Missouri or suffered from resulting injuries in Missouri. Instead, those 53
plaintiffs allege only that the defendants transacted business and committed torts in the
State of Missouri. But those plaintiffs were not injured from the defendants’ contacts
with the state of Missouri. Because the 53 plaintiffs’ claims do not arise out of the
defendants’ contacts with the state of Missouri, this Court lacks specific personal
jurisdiction over their claims.
In the event that their motion to stay would be denied, and to survive defendants’
motion to dismiss, the plaintiffs alternatively sought to conduct jurisdictional discovery to
support their contention that Missouri courts can properly exercise personal jurisdiction
as to all of the plaintiffs’ claims. In a footnote in their motion to stay, the plaintiffs
contend that jurisdictional discovery might provide the plaintiffs with evidence that
include “Defendants spearheading their nationwide promotional activities in the State of
Missouri, conducting numerous studies in the State of Missouri, and conducting market
research in the state of Missouri.”
To survive a motion to dismiss for lack of personal jurisdiction under Rule
12(b)(2) of the Federal Rules of Civil Procedure, the plaintiffs “must state sufficient facts
in the complaint to support a reasonable inference that the defendants can be subjected to
jurisdiction within the state.” Dever, 380 F.3d at 1072. “Once jurisdiction ha[s] been
controverted or denied, [the plaintiff] ha[s] the burden of proving such facts.” Id. Here,
the plaintiffs do not plead any specific facts that support their contention that this Court
has personal jurisdiction over all of the plaintiffs’ claims. Alleging that facts might be
discovered during a jurisdictional discovery expedition will not allow plaintiffs to survive
a 12(b)(2) motion to dismiss. As such, 53 of the 54 plaintiffs in this action are hereby
dismissed. The Court has proper personal and subject matter jurisdiction remaining over
the remaining plaintiff.
E. 12(b)(6) Motion to Dismiss
Finally, defendants move to dismiss plaintiff’s complaint for failure to state a
claim upon which relief can be granted or, in the alternative, a more definite statement
addressing the facts that give rise to the plaintiff’s claims. The plaintiff contends that the
complaint complies with federal pleading standards and defendants’ motion should be
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must
contain a “short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss under Rule
12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at
570)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (quoting Twombly, 550 U.S. at 556)).
Here, the plaintiff alleges that the plaintiff took Risperdal pursuant to a doctor’s
prescription on or about September 1, 2002. Plaintiff alleges that in or about 2004,
plaintiff suffered an injury in the form of gynecomastia and/or abnormal breast growth.
Plaintiff further alleges that plaintiff’s specific injuries were caused by the unreasonably
dangerous and defective nature of the prescription drug and defendants’ tortious conduct
relating to, inter alia, its development, production, and sale. The Court holds that
defendants’ 12(b)(6) motion is denied because plaintiff’s pleading complies with the
Federal Rules of Civil Procedure.
The plaintiffs filed their complaint on March 8, 2017 – a time when courts in this
district generally chose to address challenges to subject matter jurisdiction before
addressing challenges to personal jurisdiction. The 53 plaintiffs that alleged no
connection between the state of Missouri and the underlying controversy joined with 1
who did – as many groups of plaintiffs did in this district – against the defendant
corporations that were not subject to general personal jurisdiction in this forum.
Unfortunately for the plaintiffs, Bristol-Myers Squibb, under the facts of this case, made
personal jurisdiction the more straightforward issue and therefore more proper to be
analyzed first. Further, Bristol-Myers Squibb held that forums, like Missouri in this
action, do not have specific personal jurisdiction over non-resident corporations when the
plaintiffs do not allege any specific connection between the forum and the specific claims
Neither this Court nor the state court in which this action was removed can
exercise personal jurisdiction – whether general or specific – over the defendants for the
claims brought by the 53 non-Missouri plaintiffs. In the light most favorable to them, the
53 plaintiffs do not state sufficient facts in their complaint to support a reasonable
inference that the defendants can be subjected to jurisdiction within the state. Therefore,
defendants’ 12(b)(2) motion to dismiss (#4) is granted. Plaintiffs’ motion to remand
(#14) is denied because the Court has proper subject matter jurisdiction in this action.
IT IS HEREBY ORDERED that defendants’ motion to dismiss for lack of
personal jurisdiction (#4) is GRANTED. The claims of all plaintiffs other than Annette
Covington are dismissed without prejudice for lack of personal jurisdiction.
IT IS FURTHER ORDERED that defendants’ motion to dismiss for failure to
state a claim upon which relief can be granted (#4) is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion to remand (#14) is
IT IS FINALLY ORDERED that plaintiffs’ motion to stay or motion for leave to
conduct jurisdictional discovery (#16) is DENIED.
So ordered this 10th day of August, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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