Swann et al v. Johnson & Johnson et al

Filing 133

MEMORANDUM AND ORDER re: 75 MOTION to Expedite Ruling on Plaintiffs' Emergency Motion to Remand and Notice of Waiver of Plaintiffs' Reply filed by Plaintiff Claudine Brunson, Plaintiff Michael Blaes, Plaintiff Beverly Lingo, Plaintiff Marilyn Bentley, Plaintiff Hue Tu McNabb, Plaintiff Pamela Hennigan, Plaintiff Yudmila Sanchez, Plaintiff Elaine Byrd, Plaintiff Brenda Jean Bartley, Plaintiff Sheryl Allen, Plaintiff Alishia Davis, Plaintiff Donna Faye Lane, Plainti ff Patricia Craig, Plaintiff Tracy White, Plaintiff Dimity Lowell, Plaintiff Michelle Payne, Plaintiff Samantha Wells, Plaintiff Brenda Joyce Warren, Plaintiff Walter Cunningham, Plaintiff Robert Swann, Plaintiff Dionne Rockhold, Plaintiff Sa rah Simpson, Plaintiff Margie Carson, Plaintiff Millicent Carter, Plaintiff Shelia Perro Booker, Plaintiff Lenora Townsen, Plaintiff Carolyn Burrus, Plaintiff Lisa Marie Butler, Plaintiff Bridgett Latrice Maxwell, Plaintiff Steven Salpeter, Pla intiff Evelyn Davis, Plaintiff Joyce Benham, Plaintiff Patrick Maharg, Plaintiff Nicky Battaglia, Sr., Plaintiff Carmen Green-Newman, Plaintiff Lois Slemp, Plaintiff Kimberley Jackson, Plaintiff Glenda Long, Plaintiff Kathleen Corsetti, Plai ntiff Darlene Evans, Plaintiff Mary Elaine Payne, Plaintiff Burnetta Rogers, Plaintiff Rebecca Meeks, Plaintiff Frances Lange, Plaintiff Martha Shoemaker, Plaintiff Susan Schnelle, Plaintiff Sandra Matthews, Plaintiff Savanna Crews, Plaintiff Kelly Allen, Plaintiff Floye Zimmerman, Plaintiff Martha Decker, Plaintiff Christine Todd, Plaintiff Sylvia White, Plaintiff Vertenia Linicomn, Plaintiff Chrystal Supple, Plaintiff Sharon Shelton, Plaintiff Ilan Ottavian, Plaintiff Margarit a Becerra, Plaintiff Nora Daniels, Plaintiff Betty Gullard, Plaintiff Deborah L. Smith, 121 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Imerys Talc America, Inc., 70 Emergency MOTION to Remand Case to State Cou rt to Circuit Court for the Twenty-Second Judicial Circuit, St. Louis City, Missouri filed by Plaintiff Claudine Brunson, Plaintiff Michael Blaes, Plaintiff Beverly Lingo, Plaintiff Marilyn Bentley, Plaintiff Hue Tu McNabb, Plaintiff Pa mela Hennigan, Plaintiff Yudmila Sanchez, Plaintiff Elaine Byrd, Plaintiff Brenda Jean Bartley, Plaintiff Sheryl Allen, Plaintiff Alishia Davis, Plaintiff Donna Faye Lane, Plaintiff Patricia Craig, Plaintiff Tracy White, Plaintiff Dimity Lowe ll, Plaintiff Michelle Payne, Plaintiff Samantha Wells, Plaintiff Brenda Joyce Warren, Plaintiff Walter Cunningham, Plaintiff Robert Swann, Plaintiff Dionne Rockhold, Plaintiff Sarah Simpson, Plaintiff Margie Carson, Plaintiff Millicent Carte r, Plaintiff Shelia Perro Booker, Plaintiff Lenora Townsen, Plaintiff Carolyn Burrus, Plaintiff Bridgett Latrice Maxwell, Plaintiff Lisa Marie Butler, Plaintiff Steven Salpeter, Plaintiff Joyce Benham, Plaintiff Evelyn Davis, Plaintiff Patrick Maharg, Plaintiff Nicky Battaglia, Sr., Plaintiff Carmen Green-Newman, Plaintiff Lois Slemp, Plaintiff Glenda Long, Plaintiff Kimberley Jackson, Plaintiff Kathleen Corsetti, Plaintiff Darlene Evans, Plaintiff Mary Elaine Payne, Plaintiff Burne tta Rogers, Plaintiff Rebecca Meeks, Plaintiff Frances Lange, Plaintiff Martha Shoemaker, Plaintiff Susan Schnelle, Plaintiff Sandra Matthews, Plaintiff Savanna Crews, Plaintiff Kelly Allen, Plaintiff Floye Zimmerman, Plaintiff Martha Decke r, Plaintiff Christine Todd, Plaintiff Sylvia White, Plaintiff Vertenia Linicomn, Plaintiff Chrystal Supple, Plaintiff Sharon Shelton, Plaintiff Ilan Ottavian, Plaintiff Betty Gullard, Plaintiff Nora Daniels, Plaintiff Margarita Becerra, Pla intiff Deborah L. Smith, 6 MOTION to Stay All Proceedings filed by Defendant Johnson & Johnson, Defendant Johnson & Johnson Consumer Companies, Inc., 4 MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Joh nson & Johnson, Defendant Johnson & Johnson Consumer Companies, Inc., 126 MOTION for Joinder Johnson & Johnson and Johnson & Johnson Consumer Inc.s Memorandum in Opposition to Plaintiffs Motion to Remand filed by Defendant Imerys Ta lc America, Inc., 124 MOTION for Joinder Johnson & Johnson's and Johnson & Johnson Consumer Inc.'s Motion to Stay All Proceedings filed by Defendant Imerys Talc America, Inc. IT IS HEREBY ORDERED that plaintiffs' emergency motion to remand case to state court (#70) is GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 7/18/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT SWANN, individually and on
)
behalf of the Estate of VALERIE SWANN, )
deceased, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
JOHNSON & JOHNSON, et al.,
)
)
Defendants.
)

Case No. 4:17-CV-1845 SNLJ

MEMORANDUM AND ORDER
This case comes before the Court on plaintiffs’ emergency motion to remand (#70)
and motion to expedite ruling on plaintiffs’ emergency motion to remand (#75). The
removing defendants oppose plaintiffs’ motion to remand; alleging that this Court should
address the issue of personal jurisdiction, in light of the United States Supreme Court’s
ruling in Bristol-Myers Squibb v. Superior Court of California, 137 S. Ct. 1773 (2017),
before addressing subject matter jurisdiction. The matters are fully briefed and ripe for
disposition.
I.

Background

This case was originally filed on July 31, 2014 in Missouri state court. The 62
plaintiffs from 28 states – including Missouri, New Jersey, and California – claimed they,
or a family member, were each injured as a result of their use of defendants’ talc
products. The defendants, citizens of New Jersey, Delaware, and California, removed the
action to federal court on September 10, 2014, based on diversity jurisdiction. The

problem, however, was that the parties were not diverse on the face of the complaint. To
address this issue, defendants argued that many of the out-of-state plaintiffs – including
plaintiffs from New Jersey and California – were procedurally misjoined – having no
connections to the state of Missouri. Further, defendants maintained that the court should
have addressed personal jurisdiction before addressing subject matter jurisdiction – which
would have allowed the court to remove all of the procedurally misjoined plaintiffs and
therefore established diversity jurisdiction in this Court. Apparently, this group of
plaintiffs, like many others, were purposefully, but legally, created as a strategic means to
avoid this Court’s subject matter jurisdiction both under diversity jurisdiction and the
Class Action Fairness Act (“CAFA”).
Some two and a half years ago, this Court, citing the non-diversity of the parties
and ruling against the defendants’ misjoinder arguments, remanded the action back to the
Circuit Court of the City of St. Louis. Swann v. Johnson & Johnson, Case No. 4:14-CV1546 CAS, 2014 WL 6850776 (E.D. Mo. Dec. 3, 2014). The Court ruled, as many have
in this district, that subject matter jurisdiction was a straightforward legal issue as
compared to the fact-intensive inquiry of personal jurisdiction. The parties then engaged
in several contentious years of litigation in state court.
However, on June 19, 2017, the United States Supreme Court in Bristol-Myers
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. The Court held 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 quotation omitted). Specifically, there
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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).
On June 29, 2017 – nearly three years after this case was initially filed in state
court – the defendants again removed the action to this Court on substantially the same
grounds as they did before. The defendants, citing Bristol-Myers Squibb Co., contend
that many of the plaintiffs are procedurally misjoined and should be dismissed from the
action, which would leave diverse parties, enabling this Court’s subject matter
jurisdiction. Further, defendants maintain that removal is proper because plaintiffs
engaged in bad faith by forum-shopping and securing a forum that plaintiffs believe will
be more favorable to them and more hostile to the out-of-state defendants like those in
this action. Plaintiffs moved for remand, alleging, inter alia, that “Plaintiffs have in no
way, shape, or form engaged in ‘bad faith’ giving Defendants license to remove pursuant
to 28 U.S.C. § 1332(a), nearly three years after this case was filed.”
II.

Legal Standard

Diversity jurisdiction under 28 U.S.C. § 1332(a) requires an amount in
controversy greater than $75,000 and complete diversity of citizenship among the
litigants, meaning that no plaintiff is a citizen of the same state as any defendant.
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OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007). Removal based
upon diversity of jurisdiction “may not be removed . . . more than 1 year after
commencement of the action, unless the district court finds that the plaintiff has acted in
bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. §
1446(c)(1). This one year rule trumps 28 U.S.C. § 1446(b)(3), which states that if a case
is not removable as stated in the initial pleading, “a notice of removal may be filed within
30 days after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order, or other paper from which it may first be ascertained
that the case is one which is or has become removable.” Put another way, the defendant
may remove an action up to 30 days after the defendant determines that the action is now
removable, but the 30 day window is subject to the maximum amount of time to remove
of 1 year.
An action is commenced under 28 U.S.C. § 1446(c)(1) according to state law. “In
Missouri, a civil action is commenced by filing a petition with the court” and “can only
be commenced once.” Jackson v. C.R. Bard, Inc., 4:17-CV-974 CEJ, 2017 WL 2021087,
at *3 (E.D. Mo. May 12, 2017) (internal quotations omitted). Thus, an amended petition
is not considered to be a new or different lawsuit and the original filing date controls. Id.
This Court must strictly construe removal statutes because they impede upon states’
rights to resolve controversies in their own courts. Nichols v. Harbor Venture, Inc., 284
F.3d 857, 861 (8th Cir. 2002). The Court must resolve “all doubts about federal
jurisdiction in favor of remand.” Transit Cas. Co. v. Certain Underwriters at Lloyd’s of
London, 119 F.3d 619, 625 (8th Cir. 1997).
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III.

Application

Although this Court is inclined to agree with defendants’ arguments that personal
jurisdiction should be addressed before subject matter jurisdiction in these types of cases,
based on Bristol-Myers Squibb Co., defendants’ removal fails based upon a plain reading
of 28 U.S.C. § 1446(c)(1). “A case may not be removed . . . on the basis of jurisdiction
conferred by section 1332 more than one year after commencement of the action, unless
the district court finds that the plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.” Here, plaintiffs surely secured advantageous
forums by manipulating the groups of plaintiffs in an attempt to prevent federal
jurisdiction. However, this manipulation was legal within the confines of federal statutes
and case law at the time and was not done in bad faith. Although Bristol-Myers Squibb
Co. may have altered the state of affairs in regards to these mass actions with many outof-state plaintiffs joining with in-state plaintiffs, it did not create an exception to the strict
one year removal statute’s application to actions removed based upon diversity in 28
U.S.C. § 1446(c)(1). The defendants have presented no evidence of bad faith that would
establish the exception to this rule.
IV.

Conclusion

This Court is required to remand this action to state court under 28 U.S.C. §
1446(c)(1) because this action was commenced nearly three years ago and the defendants
have not established bad faith on behalf of the plaintiffs.
Accordingly,

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IT IS HEREBY ORDERED that plaintiffs’ emergency motion to remand case to
state court (#70) is GRANTED.
IT IS FURTHER ORDERED that all other motions are DENIED as moot.
So ordered this 18th day of July, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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