Ackerson et al v. Janssen Pharmaceuticals, Inc. et al

Filing 28

MEMORANDUM AND ORDER OF REMAND IT IS HEREBY ORDERED that Plaintiffs' Second Motion to Remand (ECF No. 13 ) is GRANTED. IT IS FURTHER ORDERED that this matter is remanded to the Circuit Court for the Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri. IT IS FINALLY ORDERED that all other motions are DENIED as moot. Signed by District Judge Ronnie L. White on 11/29/17. (KXS) (copy mailed to St. Louis City Court)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARREN ACKERSON, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
JANSSEN PHARMACEUTICALS, INC., et al. )
)
Defendants.
)

Case No. 4:17CV2016 RLW

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Plaintiffs' Second Motion to Remand (ECF No. 13).
The motion is fully briefed and ready for disposition.
BACKGROUND
Plaintiffs filed this action in the Circuit Court for the Twenty-Second Judicial Circuit,
City of St. Louis, State of Missouri, on February 28, 2017. Plaintiffs allege injuries resulting
from Plaintiffs' use ofRisperdal® in any of its forms, including Risperdal CONSTA® and/or
Invega®. Plaintiffs are citizens of the States of Missouri, New Jersey, Alabama, Kentucky,
Texas, Ohio, Louisiana, New York, Mississippi, Georgia, Pennsylvania, North Carolina,
Tennessee, Kansas, Arizona, Illinois, Indiana, Connecticut, Delaware, Oklahoma, Colorado, and
West Virginia. Defendants Janssen Pharmaceuticals, Inc.; Johnson & Johnson; Janssen Research
& Development, LLC; and Patriot Pharmaceuticals, LLC (collectively "Removing Defendants")

are citizens of New Jersey and Pennsylvania.
On April 12, 2017, Defendants first removed this action to this Court, based in part on
diversity jurisdiction under 28 U.S.C. §1332(a). See Ackerson, et al. v. Janssen Pharms., Inc., et

al, No. 4:17-cv-01303-JCH. The Court found that subject matter jurisdiction was lacking and

remanded the case on May 3, 2017. See Ackerson, No. 4:17-cv-01303-JCH, 2017 WL 1684763
(E.D. Mo. May 3, 2017). On July 19, 2017, Defendants removed this case for a second time
asserting that all of the non-Missouri plaintiffs should be dismissed from the case and the Court's
diversity jurisdiction would apply to the remaining Missouri plaintiffs' claims. (ECF No. 1)
Defendants' impetus for the second removal was the United States Supreme Court's
decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S.
Ct. 1773, 1777 (2017). In that case, the Supreme Court held that state courts lack specific
jurisdiction over nonresident plaintiffs' claims that have no connection to the forum where the
lawsuit is filed, even if those plaintiffs join their claims with in-state plaintiffs. Defendants also
rely on orders by the district court in Jordan v. Bayer Corp., No. 4:17-CV-865 (CEJ), 2017 WL
3006993 (E.D. Mo. July 14, 2017) and Siegfried v. Boehringer Ingelheim Pharms., Inc., No.
4:16CV1942 CDP, 2017 WL 2778107 (E.D. Mo. June 27, 2017). In these cases, the claims of
non-resident plaintiffs similar to the present case were dismissed based on the Bristol-Myers
. . I
d ec1s10n.

Defendants' legal ground for their second attempt to remove this action is the order or
other paper exception to the time limitation for removal set forth in 28 U.S.C. §1446(b)(3).
Under § 1446, a case must be removed within 30 days "after the receipt by the defendant,
through service or otherwise, of 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." See 28 U.S.C. §1446(b)(l). When an
initial pleading is not removable, "a notice of removal may be filed within 30 days after receipt
1

The decisions in Jordan and Siegfried were issued after the Supreme Court's ruling in Bristo/Myers. Neither case involved the issue ofremoval under 28 U.S.C. § 1446(b)(3) or (c)(l).
Furthermore, there is currently a motion for reconsideration pending in Jordan.

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." 28 U.S.C. §1446(b)(3).
Defendants assert that the ruling in Bristol-Myers qualifies as an order and/or other paper
because it changed the legal landscape by clarifying that specific jurisdiction over the nonMissouri Plaintiffs does not exist and thus triggers a new 30-day period for removal under
Section 1446(b)(3). The orders and other paper exception, however, is predominantly limited to
orders and other paper issued in the individual case that is being removed. Orders and rulings in
separate cases with different parties do not trigger the recommencement of the 30-day limit. See

Dahl v. R.J Reynolds Tobacco Co., 478 F.3d 965, 969 (8th Cir. 2007) ("If Congress had
intended new developments in the law to trigger the recommencement of the thirty day time
limit, it could have easily added language making it clear that § 1446(b) was not only addressing
developments within a case."); Erhart v. Bayer, Corp., No. 4:17-CV-1996-SNLJ, 2017 WL
4280635, at *4 (E.D. Mo. Sept. 27, 2017) ("This Court is required to remand this action to state
court under 28 U.S.C. § 1446 because the second notice of removal (#1) was not filed within
thirty days of defendants receiving a copy of the original state court filing, and no 'order or other
paper' triggered a new removal period."); Dotson v. Bayer Corp., No. 4:17cv1986 RWS (ECF
No. 50, Nov. 17, 2017); Tabor v. Bayer Corp., No. 17cv1997 RWS (ECF No. 49, Nov. 17,
2017). As a result, Defendants' removal of this matter for a second time was procedurally
improper, and the Court will grant Plaintiffs' Second Motion to Remand this action to state
court.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Second Motion to Remand (ECF No. 13) is
GRANTED.

IT IS FURTHER ORDERED that this matter is remanded to the Circuit Court for the

Twenty-Second Judicial Circuit, City of St. Louis, State of Missouri.
IT IS FINALLY ORDERED that all other motions are DENIED as moot.

Dated this 29th day of November, 2017.

~~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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