Timms et al v. Johnson & Johnson et al

Filing 28

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. 16) isGRANTED.IT IS FURTHER ORDERED that Plaintiffs Emergency Motion to Remand (Doc. 9) isGRANTED.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, 23) 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 7/20/17. (KKS)

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

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No. 4:17-CV-01859-JAR

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Plaintiffs’ Emergency Motion to Remand (Doc. 9),
Plaintiffs’ Motion to Expedite Ruling on Plaintiffs’ Emergency Motion to Remand and Notice of
Waiver of Plaintiffs’ Reply (Doc. 16), 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. 23). The motions are fully briefed and
ready for disposition.
Background
This action was originally filed on April 4, 2016, in the Circuit Court for the City of St.
Louis, Missouri (Doc. 13). In their petition, 80 plaintiffs, who are from 31 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 May 20, 2016, the Johnson & Johnson Defendants first removed this action to this
Court, arguing that all the out-of-state plaintiffs had been fraudulently joined to defeat diversity
jurisdiction, and that their citizenship should thus be disregarded for the purpose of determining
the Court’s diversity jurisdiction. On July 11, 2016, the Court remanded this case back to the
Circuit Court for the City of St. Louis, concluding that the issue of subject matter jurisdiction
was more straightforward than the issue of personal jurisdiction. Timms v. Johnson & Johnson,
4:16-cv-00733-JAR, 2016 WL 3667982, at *2-4 (E.D. Mo. July 11, 2016).
On June 29, 2017, the Johnson & Johnson Defendants removed the action to this Court
for a second time, again with the consent of Imerys Talc America Inc. (Docs. 1, 1.3). In their
second notice of removal, the Johnson & Johnson Defendants again 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 in light
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), 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, 24).
Defendants further contend that their second notice of removal is timely because it was
filed within thirty days of the Supreme Court’s decision in Bristol-Meyers, 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,

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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.” BristolMeyers, 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 nonresident defendant and 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, 24).
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. 9-10).
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.

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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:
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 second notice of removal 14 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

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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. 1 As such, the Court is not persuaded that Plaintiffs acted
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’
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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
jurisdiction before reaching the issue of personal jurisdiction, determined that joinder of out-ofstate Plaintiffs was permissible, and remanded such cases—this case included—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, 2016 WL 3667982, at
*2-4 (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. 4:17cv-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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Emergency Motion to Remand and Notice of Waiver of Plaintiffs’ Reply (Doc. 16) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Emergency Motion to Remand (Doc. 9) 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 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, 23) 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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