Gallardo et al v. Johnson & Johnson, Inc. et al

Filing 35

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that defendant Johnson & Johnson's motion to stay (#7) is GRANTED. IT IS FURTHER ORDERED that defendant Imeryss motion to join Johnson & Johnson's motion to stay (#24) is GRANTED.IT IS FURTHER ORDE RED that plaintiffs' motion to remand (#15) and to expedite motion to remand (#17) are DENIED. IT IS FURTHER ORDERED that plaintiffs' motions to stay pending discovery on personal jurisdiction (#18, #25) are DENIED. IT IS FINALLY ORDERED that this matter is STAYED pending further order of the Court. Signed by District Judge Stephen N. Limbaugh, Jr on 7/24/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANNA GALLARDO, et al.,
Plaintiffs,
vs.
JOHNSON & JOHNSON, et al.,
Defendants.

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Case No. 4:17CV1601 SNLJ

MEMORANDUM and ORDER
Plaintiffs include 77 individuals who claim defendants’ talc-containing products
caused ovarian cancer. They filed this lawsuit in the Circuit Court for the City of St.
Louis, Missouri. Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.,
formerly known as Johnson & Johnson Consumer Companies, Inc., (collectively, “Johnson
& Johnson” or “J&J”) removed the case to this Court. Johnson & Johnson and defendant
Imerys Talc America, Inc., (“Imerys”) moved to dismiss the 75 plaintiffs who are not
Missouri citizens (#4, #14). In addition, J&J moved to stay (#7) this matter pending its
likely transfer to the multidistrict litigation (“MDL”) proceeding that has been established
in the United States District Court for the District of New Jersey for the purpose of
coordinating pretrial matters in talc-related litigation such as this one. Defendant Imerys
has moved to join (#24) in J&J’s motion to stay. Imerys has also filed a second motion to
dismiss (#22) and has moved to transfer venue (#13). Plaintiffs have moved to remand

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(#15), to expedite ruling on that motion (#17), and to stay pending discovery on personal
jurisdiction questions (#18, #25).
Defendants seek federal jurisdiction, relying on the argument that the joinder of
unrelated out-of-state plaintiffs who share citizenship with the defendants was so egregious
as to constitute fraudulent joinder. As plaintiffs point out in their motion to remand, this
Court has frequently remanded cases such as this one, rejecting defendants’ fraudulent
misjoinder theory and holding that it does not have diversity jurisdiction due to the
presence of plaintiffs who share citizenship with the defendants. See Loyd v. Johnson &
Johnson, et al., 4:14-cv-01904-RWS, Memo & Order of Remand, CM/ECF Doc. #7 (E.D.
Mo. Nov. 13, 2014) (Sippel, J.) (remanding sua sponte for lack of subject matter
jurisdiction); see also McGee v. Fresenius Med. Care N. Am., Inc., 4:14-CV-967 SNLJ,
2014 WL 2993755, at *3 (E.D. Mo. July 3, 2014); Spiller v. Fresenius USA, Inc., No. 4:13–
CV2538 (HEA), 2014 WL 294430 (E.D. Mo. Jan. 27, 2014); Aday v. Fresenius Med. Care
N. Am., Inc., No. 4:13–CV–2462 (CEJ), 2014 WL 169634 (E.D. Mo. Jan. 15, 2014);
Agnew v. Fresenius Medical Care North America, Inc., No. 4:13–CV–2468 (TCM), 2014
WL 82195 (E.D. Mo. Jan. 9, 2014).
In McGee, this Court noted that the Court’s practice had generally been to address
jurisdictional issues promptly in order to promote the efficient administration of justice.
2014 WL 2993755, at *2. As such, the Court addressed the matter of subject matter
jurisdiction and denied the defendants’ motions to stay that sought to allow the cases to be
swept up into the appropriate MDL. Id.
However, on June 19, 2017, the United States Supreme Court in Bristol-Myers
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Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (June 19, 2017), essentially
“changed the game” as it relates to these types of actions. See Swann v. Johnson &
Johnson, No. 4:17cv1845 SNLJ, Dkt. #133 at 2 (E.D. Mo. July 18, 2017). The Supreme
Court held in Bristol-Myers that to have specific personal jurisdiction, the suit “must
aris[e] out of or relat[e] to the defendant’s contacts with the forum.” Id. at 1780 (internal
quotations omitted). Specifically, 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 and is therefore subject to the state’s regulation.” Id. Following the
Bristol-Myers Squibb Co. ruling, this Court has addressed personal jurisdiction before
subject matter jurisdiction in at least one case because the personal jurisdiction “issue in
[that] case [was] much easier to decide.” Siegfried v. Boehringer Ingelheim
Pharmaceuticals, Inc., Case No. 4:16-CV-1942 CDP, 2017 WL 2778107, at *2 (E.D. Mo.
June 27, 2017).
Plaintiffs contend that the personal jurisdiction questions surrounding their claims
against Johnson & Johnson are still complicated. Specifically, plaintiffs maintain they
have evidence that Johnson & Johnson is subject to personal jurisdiction in Missouri
because J&J directed the manufacturing, packaging, and mislabeling of its talc products in
Missouri. Those issues are already being litigated in other talc lawsuits against J&J in
Missouri state court, including in Swann v. Johnson & Johnson, No. 1422-CC0936 (Cir.
Ct. City of St. Louis), which was in trial when the Bristol-Myers case was handed down
and for which a mistrial was declared while the parties worked out personal jurisdiction
questions. The defendants then removed Swann to federal court, but that case was
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remanded back to state court because defendants’ removal came after the one-year removal
deadline set forth in 28 U.S.C. § 1446(c). Swann v. Johnson & Johnson, No. 4:17cv1845
SNLJ (E.D. Mo July 18, 2017). Plaintiffs here, however, do not contend that defendants
removed this matter outside the statutory deadline, and defendants urge this Court to stay
the matter so that the MDL court can address personal jurisdiction questions on a large
scale, avoiding the possibility of inconsistent results and preserving judicial economy, and
in keeping with numerous similar cases. See, e.g., Rea v. Johnson & Johnson, No.
4:16-CV-2165 (SNLJ) (E.D. Mo. Apr. 7, 2017); Anderson v. Johnson & Johnson, No.
4:17-cv-01232 (CDP) (E.D. Mo. Apr. 10, 2017); Rice v. Johnson & Johnson, No.
4:17-cv-01224 (CDP) (E.D. Mo. Apr. 10, 2017); McBee v. Johnson & Johnson, No.
4:17-CV-01496 (JAR) (E.D. Mo. June 9, 2017); McNichols v. Johnson & Johnson, No.
4:17-CV-01473 (JAR) (E.D. Mo. May 31, 2017); Gallow v. Johnson & Johnson, No.
4:16-CV-1123 (JAR) (E.D. Mo. Feb. 2, 2017); Lucas v. Johnson & Johnson, No.
4:16-CV-1339 (JAR) (E.D. Mo. Feb. 2, 2017); Frazier v. Johnson & Johnson, No.
4:16-CV-1388 (JAR) (E.D. Mo. Feb. 2, 2017); Eveland v. Johnson & Johnson, No.
4:16-CV-1436 (JAR) (E.D. Mo. Feb. 2, 2017); Starks v. Johnson & Johnson, No.
4:16-CV-1362 (AGF) (E.D. Mo. Feb. 2, 2017). Defendant Imerys joins in J&J’s motion
to stay proceedings despite Imerys’s own pending motions to dismiss and to transfer. The
Court will grant the defendants’ motion to stay and deny plaintiffs’ motion to remand.

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Accordingly,
IT IS HEREBY ORDERED that defendant Johnson & Johnson’s motion to stay
(#7) is GRANTED.
IT IS FURTHER ORDERED that defendant Imerys’s motion to join Johnson &
Johnson’s motion to stay (#24) is GRANTED.
IT IS FURTHER ORDERED that plaintiffs’ motion to remand (#15) and to
expedite motion to remand (#17) are DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motions to stay pending discovery
on personal jurisdiction (#18, #25) are DENIED.
IT IS FINALLY ORDERED that this matter is STAYED pending further order of
the Court.
Dated this

24th

day of July, 2017.

UNITED STATES DISTRICT JUDGE

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