Livaudais et al v. Johnson & Johnson et al

Filing 37

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs' emergency motion to remand case to state court (#15) is GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 7/18/2017. (JMC)

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

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Case No. 4:17-CV-1851 SNLJ

MEMORANDUM AND ORDER
This case comes before the Court on plaintiffs’ emergency motion to remand (#15)
and motion to expedite ruling on plaintiffs’ emergency motion to remand (#23). 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 March 18, 2015 in Missouri state court. The 69
plaintiffs from 36 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
this action to this Court on June 29, 2017 based on diversity jurisdiction. The problem,
however, is that the parties are not diverse on the face of the complaint. To address this

issue, defendants argue that many of the out-of-state plaintiffs – including plaintiffs from
New Jersey and California – are procedurally misjoined – having no connections to the
state of Missouri. Further, defendants maintain that the court should address personal
jurisdiction before addressing subject matter jurisdiction – which would allow the court
to remove all of the procedurally misjoined plaintiffs and therefore establish 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”).
Defendants removed, citing the June 19, 2017 ruling of the United States Supreme
Court in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (June
19, 2017), a case that 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 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 BristolMyers 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).

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On June 29, 2017 – nearly two and a half years after this case was initially filed in
state court – the defendants removed the action to this Court. 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 move for remand, alleging, inter alia, that
the “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), well outside of a year 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.
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
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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).
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
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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 two and a half years ago and the
defendants have not established bad faith on behalf of the plaintiffs.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ emergency motion to remand case to
state court (#15) 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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