Robinson et al v. Janssen Pharmaceuticals, Inc. et al
MEMORANDUM AND ORDER OF REMAND - IT IS HEREBY ORDERED that Plaintiffs Second Motion to Remand (ECF No. 12 ) is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. (cc: Circuit Court of the City of St. Louis) Signed by District Judge Jean C. Hamilton on 12/6/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GWEN ROBINSON, et al.,
INC., f/k/a ORTHO-MCNEILJANSSEN PHARMACEUTICALS,
INC., et al.,
No. 4:17CV2018 JCH
MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on Plaintiffs’ Second Motion to Remand,
filed August 2, 2017. (ECF No. 12). By way of background, Plaintiffs filed this
action in Missouri state court, claiming personal injuries resulting from the design,
development, testing, packaging, distribution, marketing, and selling of the drug
products Risperdal and/or Invega.
The sixty-seven Plaintiffs are citizens of a
number of states, including Missouri, Pennsylvania, and New Jersey.
For purposes of this case, Defendant Janssen Pharmaceuticals, Inc., is a
citizen of Pennsylvania and New Jersey. Defendant Johnson & Johnson is a citizen
of New Jersey. Defendant Janssen Research & Development, LLC, is a citizen of
Defendant Patriot Pharmaceuticals, LLC, is a citizen of
Defendants first removed this case on March 9, 2017, based on diversity
jurisdiction under 28 U.S.C. § 1332(a).
T h e Court found that subject matter
jurisdiction was lacking, and remanded the case on April 10, 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 that the Court’s
diversity jurisdiction then would apply to the remaining Missouri Plaintiffs’
Defendants’ impetus for this second removal was the United States Supreme
Court’s ruling in Bristol-Myers Squibb Co. v. Superior Court of California, San
Francisco Cty., 137 S.Ct. 1773 (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.
In addition, Defendants cite cases from this
Court, Jordan v. Bayer Corp., No. 4:17CV865 CEJ (E.D. Mo. July 14, 2017), and
Siegfried v. Boehringer Ingelheim Paramceuticals, Inc., No. 4:16CV1942 CDP
(E.D. Mo. June 27, 2017), in which the claims of non-resident plaintiffs were
dismissed based on the Bristol-Myers decision.1 These cases did not involve the
issue of removal under 28 U.S.C. § 1446(b)(3).
Defendants’ legal ground for their second attempt to remove this case is
the changed circumstances exception to the time limitation for removal set forth
in 28 U.S.C. § 1446(b).
Under that statute, 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.”
U . S . C . § 1446(b)(1). When an initial pleading is not removable, “a notice
of removal may be filed within 30 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.” 28 U.S.C. § 1446(b)(3).
Defendants assert that because they changed the legal landscape, by making
clear that specific jurisdiction over the non-Missouri Plaintiffs does not exist, the
ruling in Bristol-Myers qualifies as an order and/or other paper, and thus triggers a
new 30-day period for removal under section 1446(b)(3).
The orders and other
There is currently a motion for reconsideration pending in Jordan.
paper exception is predominately limited to orders and other paper issued in the
individual case that is being removed, however.
Orders and rulings in separate
cases with different parties do not trigger the recommencement of the 30-day time
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. 4:17CV1996 SNLJ (ECF No. 49, Sept. 27,
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 case to state court.
IT IS HEREBY ORDERED that Plaintiffs’ Second Motion to Remand
(ECF No. 12) is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit
Court of the City of St. Louis, State of Missouri.
Dated this 6th Day of December 2017.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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