Farrar et al v. Johnson & Johnson et al

Filing 54

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand 14 is GRANTED. IT IS FURTHER ORDERED that all remaining pending motions are DENIED as moot, without prejudice to re-raise the issues, if appropriate, in the state court. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. Signed by District Judge Catherine D. Perry on August 2, 2017. (Certified copy of Memorandum and Order and docket sheet sent to: Thomas Kloeppinger, Circuit Court of the City of St. Louis, 10 North Tucker, St. Louis, MO 63101 this date.)(MCB)

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

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Case No. 4:17 CV 1854 CDP

MEMORANDUM AND ORDER
Plaintiffs filed this action in state court on October 31, 2014, alleging
personal injuries resulting from use of defendants’ talc products. On June 28,
2017, defendants removed the case to federal court on the basis of diversity
jurisdiction, relying on the United States Supreme Court’s June 19, 2017 decision
in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773
(2017). The removal statute, however, precludes removal of diversity cases more
than one year after commencement of the action, unless a plaintiff has acted in bad
faith to prevent removal. See 28 U.S.C. § 1446(c)(1). Because this case was
commenced in state court more than one year before removal and I do not find that
plaintiffs acted in bad faith, I will remand it to state court.
Plaintiffs filed their petition in Missouri state court on October 31, 2014.
This is the third time that defendants have removed the case to federal court. Each

time before I remanded the case. See Case Nos. 4:14CV1933CDP and
4:15CV1219CDP. Although the parties are not diverse on the face of the
complaint, defendants assert that removal based on diversity is nonetheless proper
under 28 U.S.C. § 1332, relying on the Supreme Court’s recent decision in BristolMyers. They argue that the Court lacks personal jurisdiction over defendants as to
the claims of the non-Missouri plaintiffs, and that I should decide personal
jurisdiction before subject-matter jurisdiction. If the claims of the non-Missouri
plaintiffs are dismissed, then complete diversity would exist. Plaintiffs move to
remand the case to state court on a number of grounds, including that defendants’
removal is untimely.
“A case may not be removed . . . on the basis of jurisdiction conferred by
section 1332 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” and “can only be
commenced once,” meaning the original filing date, not the filing date of an
amended petition, controls. Jackson v. C.R. Bard, Inc., 2017 WL 2021087, at *3
(E.D. Mo. May 12, 2017) (international quotations omitted). “All doubts about

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federal jurisdiction should be resolved in favor of remand to state court.” In re
Prempro Products Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010).
Defendants removed this action on the basis of diversity jurisdiction more
than one year after the action was commenced in state court. They cannot do so
unless unless plaintiffs acted in bad faith to prevent them from removing the
action. 28 U.S.C. § 1446(c)(1). Defendants argue plaintiffs acted in bad faith by
bringing the claims of non-Missouri plaintiffs in Missouri state court based on a
theory of personal jurisdiction the Supreme Court rejected in Bristol-Myers. But
plaintiffs brought this lawsuit well before the Supreme Court decided BristolMyers, and their attempt to secure a favorable forum was permissible within the
confines of federal statutes and case law at the time. Bristol-Myers did not create
an exception to the application of 28 U.S.C. § 1446(c)(1). See Ingham v. Johnson
& Johnson, Case No. 4:17CV1857 SNLJ (E.D. Mo. July 18, 2017). As a result,
and because I find no evidence plaintiffs acted in bad faith in order to prevent
removal, I must remand this action to state court.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand [14] is
GRANTED.

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IT IS FURTHER ORDERED that all remaining pending motions are
DENIED as moot, without prejudice to re-raise the issues, if appropriate, in the
state court.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit
Court of the City of St. Louis, State of Missouri.

_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 2nd day of August, 2017.

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