Dunn et al v. Johnson & Johnson et al

Filing 38

MEMORANDUM AND ORDER OF REMAND: IT IS HEREBY ORDERED that Plaintiffs' Motion to Expedite Ruling on Plaintiffs' Emergency Motion to Remand and Notice of Waiver of Plaintiffs Reply (Doc. 26 ) is GRANTED. IT IS FURTHER ORDERED that Plainti ffs Emergency Motion to Remand (Doc. 11) is GRANTED. IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for the City of St. Louis, Missouri under 28 U.S.C. § 1447(c). The Clerk of Court is directed to mail to the clerk o f the Circuit Court for the City of St. Louis a certified copy of this Memorandum and Order. IT IS FURTHER ORDERED that Defendants Motions to Stay (Docs. 7 , 33 ) are DENIED. IT IS FINALLY ORDERED that all other pending motions are DENIED without prejudice as moot. Signed by District Judge John A. Ross on 7/20/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PEGGY DUNN, et al.,
Plaintiffs,
v.
JOHNSON & JOHNSON, et al,
Defendants.

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No. 4:17-CV-01846-JAR

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Plaintiffs’ Emergency Motion to Remand (Doc. 11),
Plaintiffs’ Motion to Expedite Ruling on Plaintiffs’ Emergency Motion to Remand and Notice of
Waiver of Plaintiffs’ Reply (Doc. 26), and a Motion to Stay all Proceedings filed by Defendants
Johnson & Johnson and Johnson & Johnson Consumer Inc., f/k/a Johnson & Johnson Consumer
Companies, Inc. (collectively, the “Johnson & Johnson Defendants”) (Doc. 7) in which
Defendant Imerys Talc America, Inc. has joined (Doc. 33). The motions are fully briefed and
ready for disposition.
Background
This action was originally filed on November 7, 2014, in the Circuit Court for the City of
St. Louis, Missouri (Doc. 14). In their petition, 83 plaintiffs, who are from 26 different states—
including Missouri, New Jersey, and California—assert various claims under Missouri law
arising out of the design, development, manufacture, testing, packaging, promotion, marketing,
distribution, labeling and sale of Johnson & Johnson Baby Powder and Shower to Shower (“the
talc products”) (Id.). Plaintiffs allege that they or a decedent family member used the talc
products for feminine hygiene purposes, and developed ovarian cancer as a result (Id.).

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On June 29, 2017, the Johnson & Johnson Defendants removed the action to this Court,
with the consent of Imerys Talc America Inc. (Docs. 1, 1.3). 1 In their notice of removal, the
Johnson & Johnson Defendants argue that the Court has diversity jurisdiction over this matter,
see 28 U.S.C. § 1332(a) (diversity jurisdiction), 1446 (removal of civil actions). More
specifically, Defendants argue that all the out-of-state plaintiffs have been misjoined because
they have no connections to the State of Missouri and that the Court thus lacks personal
jurisdiction over them. As such, Defendants urge the Court to decide the issue of personal
jurisdiction before it reaches the issue of subject matter jurisdiction, dismiss the out-of-state
plaintiffs for lack of personal jurisdiction, and ultimately conclude that the Court has subject
matter jurisdiction over the remaining defendants, who are completely diverse (Docs. 1, 34).
Defendants further contend that their notice of removal is timely because it was filed
within thirty days of the United States Supreme Court’s recent decision in Bristol-Meyers Squibb
Co. v. Superior Ct. of California, 137 S. Ct. 1773 (June 19, 2017), and an oral order declaring a
mistrial in a similar case involving the talc products in the Circuit Court for the City of St. Louis,
see Swann v. Johnson & Johnson, No. 1422-CC09326-01 (Mo. Cir. Ct. St. Louis, June 19,
2017). In Bristol-Meyers, the Supreme Court held that, for a court to have specific personal
jurisdiction over the claims of non-resident plaintiffs, “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.” Bristol-Meyers, 137 S. Ct. at
1780 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
The Supreme Court elaborated that if no such connection between a non-resident defendant and
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The Johnson & Johnson Defendants previously sought to remove this case in November 2014,
but thereafter consented to remand of the case in light of this Court’s decision in Swann v.
Johnson & Johnson, No. 4:14-cv-01456-CAS, 2014 WL 6850776 (E.D. Mo. Dec. 3, 2014). Dunn
v. Johnson & Johnson, No. 4:14-cv-01953-JAR (E.D. Mo.).
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the forum state exists, “specific jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the state.” Id. at 1781. The Supreme Court further explained that the
mere fact that other plaintiffs to the action can establish an affiliation between the forum state
and the facts underlying their claims “does not allow the State to assert specific jurisdiction over
the nonresidents’ claims . . . what is needed is a connection between the forum and the specific
claims at issue.” Id. at 1781-82. Defendants also argue that their removal is timely because
Plaintiffs engaged in bad faith to secure a forum that Plaintiffs believe will be more favorable to
them and more hostile to Defendants (Docs. 1, 34).
Plaintiffs move to remand this case back to the Circuit Court for the City of St. Louis,
arguing, inter alia, that Defendants’ notice of removal is untimely, as it was filed more than one
year after this case was first filed in the state court and that Plaintiffs have not engaged in bad
faith to prevent timely removal (Docs. 11-12).
Discussion
Federal courts must “resolve all doubts about federal jurisdiction in favor of remand” and
are to strictly construe the removal statute, including its time limits for removal. Dahl v. R.J.
Reynolds Tobacco Co., 478 F.3d 965, 968 (8th Cir. 2007). As the parties seeking removal,
Defendants bear the burden of establishing this Court’s jurisdiction. Bowler v. Alliedbarton Sec.
Servs., LLC, 123 F. Supp. 3d 1152, 1155 (E.D. Mo. 2015). To remove a civil action from a state
court, a defendant must file a notice of removal in the appropriate district court:
within 30 days after the receipt by the defendant, through service or otherwise, a
copy of the initial pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the service of summons
upon the defendant if such initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(a)-(b). Section 1446(b)(3) further provides:

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If the case stated by a plaintiff’s initial complaint is not removable, a notice of
removal may be filed within thirty 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.
However, “[a] case may not be removed under [§ 1446(b)(3)] on the basis of [diversity]
jurisdiction 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). In Missouri, a civil action is commenced by filing a petition with the
court. See Mo R. Civ. P. 53.01; Jackson v. Bayer Healthcare Pharm., Inc., No. 4:17-cv-01413JAR, 2017 WL 2691413, at *6 (E.D. Mo. June 22, 2017); Jackson v. C.R. Bard, Inc., No. 4:17CV-974-CEJ, 2017 WL 2021087, at *3 (E.D. Mo. May 12, 2017).
Defendants filed their notice of removal 31 months after Plaintiffs commenced this
action. There is also no indication that Plaintiffs acted in bad faith to prevent Defendants from
removing this action to federal court within one year after the case was first filed. Although the
Court is inclined to agree with Defendants’ argument that, post-Bristol-Meyers, courts should
address the issue of personal jurisdiction before reaching the issue of subject matter jurisdiction
in cases such as this one, Defendants’ removal of this case was nevertheless untimely based on a
plain reading of 28 U.S.C. § 1446(c)(1). Plaintiffs clearly sought to secure an advantageous
forum in the state court and joined certain Plaintiffs for the very purpose of avoiding federal
jurisdiction over this case. The Court notes, however, that such joinder was permissible under the
legal standard in this District as it existed at the time Plaintiffs commenced this case and as it
existed for at least one year thereafter. 2 As such, the Court is not persuaded that Plaintiffs acted

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Bristol-Meyers changed the legal landscape as it relates to joinder of out-of-state
plaintiffs in pharmaceutical products liability cases in this District. Prior to the Supreme Court’s
decision in Bristol-Meyers, this Court had repeatedly resolved the issue of subject matter
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in bad faith to prevent Defendants from removing this case within one year of the date it was
commenced.
In short, Defendants removal of this action was untimely. Therefore, this Court will
remand the case back to the Circuit Court for the City of St. Louis. The Court notes that the
parties will have a full and fair opportunity to present their arguments on the issue of whether
Missouri courts can exercise personal jurisdiction over the out-of-state Plaintiffs to the state
court.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Expedite Ruling on Plaintiffs’
Emergency Motion to Remand and Notice of Waiver of Plaintiffs’ Reply (Doc. 26) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Emergency Motion to Remand (Doc. 11) is
GRANTED.
IT IS FURTHER ORDERED that this matter is REMANDED to the Circuit Court for the
City of St. Louis, Missouri under 28 U.S.C. § 1447(c). The Clerk of Court is directed to mail to the

jurisdiction before reaching the issue of personal jurisdiction, determined that joinder of out-ofstate Plaintiffs was permissible, and remanded such cases back to state court. See e.g., Lewis v.
Johnson & Johnson, No. 4:16-cv-001885-NCC, 2017 WL 951797, at *2-3 (E.D. Mo. Mar. 10,
2017) (remanding talc products case); Timms v. Johnson & Johnson, No. 4:16-cv-00733-JAR,
2016 WL 3667982, at *2-4 (E.D. Mo. July 11, 2016) (same); Hogans v. Johnson & Johnson, No.
4:14-cv-1385-JCH, 2014 WL 4749162, at *3 (E.D. Mo. Sept. 2014) (same); Swann v. Johnson &
Johnson, No. 4:14-cv-01546-CAS, 2014 WL 6850776, at *2-4 (E.D. Mo. Dec. 3, 2014) (same);
see also Langston v. Bayer Corp., No. 4:17-cv-00888-JAR, 2017 WL 1873285, at *1 n.1 (E.D.
Mo. May 9, 2017) (remanding substantially similar case involving Essure contraceptive devices;
collecting cases); Robinson v. Pfizer, Inc., No. 4:16-cv-00439, 2016 WL 1721143, at *3-4 (E.D.
Mo. Apr. 29, 2016) (remanding case and imposing fees and costs for improper removal after
finding that procedural joinder and personal jurisdiction arguments in case involving Lipitor
were objectively unreasonable in light of this Court’s repeated remands based on lack of subject
matter jurisdiction where defendants had asserted substantially similar arguments in previous
attempts to remove cases), appealed dismissed, 855 F.3d 893 (8th Cir. 2017).
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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’ Motions to Stay (Docs. 7, 33) are
DENIED.
IT IS FINALLY ORDERED that all other pending motions are DENIED without
prejudice as moot.

Dated this 20th day of July, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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