Dyson et al v. Bayer Corporation et al

Filing 47

MEMORANDUM AND ORDER re: 18 MOTION to Remand Case to State Court to St. Louis City filed by Plaintiff Elizabeth Roach, Plaintiff Lykeithia Thomas, Plaintiff Laura Mora, Plaintiff Freda Johnson, Plaintiff Tiffany Ord-Hester, Pl aintiff Shirley Chappell, Plaintiff Rebecca Macias, Plaintiff Emily McLaughlin, Plaintiff Crystal Wordes, Plaintiff Elizabeth Aubrey, Plaintiff Darci Saypack, Plaintiff Jessica Coulter, Plaintiff Collene Belgin, Plaintiff Amanda Bray, P laintiff Temeaka Walker, Plaintiff Rachel Simpson, Plaintiff Laurona Phelps, Plaintiff Jane Vo, Plaintiff Misty Fernandez-River, Plaintiff Stephanie Virgin, Plaintiff Tara Hultgren, Plaintiff Evangelina Garcia, Plaintiff Elise Barba , Plaintiff Jeane Pina, Plaintiff Jennifer Zapata, Plaintiff Misty Wham, Plaintiff Mikayla Hill-Levesque, Plaintiff Fonda Ivy, Plaintiff Hannah Ball, Plaintiff Nedra Dyson, Plaintiff Lesley Malone, Plaintiff Angel Walls, Plaintiff Marie Brown, Plaintiff Adriane Criswell, Plaintiff Samantha Escobedo, Plaintiff Katrina Botts, Plaintiff Allison Peeples, Plaintiff Taitiana Lynn, Plaintiff Staci Hall, Plaintiff Melissa Stone, Plaintiff Reyannh Starns, Plaintiff Ashley Reid, Plaintiff Lisa Presley, Plaintiff Bobby Hernandez, Plaintiff Jessica Huston, Plaintiff Brandy Burnett Steffek, Plaintiff Lindsay Watson, Plaintiff Kendra Clark, Plaintiff Felicia Quezada, Plaintiff Jeannie Alvarado, Plaintiff Sam antha Wood, Plaintiff Kimberly King, Plaintiff April Molinar, Plaintiff Melinda Burkhart, Plaintiff Amanda Howard, Plaintiff Tiffany Landenberger, Plaintiff Lathosha Long, Plaintiff Abbigale Medlock, Plaintiff Summer Swager, Plaintiff Megan Cottrill, Plaintiff Stephanie Dotson, Plaintiff Tina Kimrey, Plaintiff Christina Holmes, Plaintiff Spencer Williamson, Plaintiff Breonna Stewart, Plaintiff Heather Gockel, Plaintiff Renee Pearson, Plaintiff Deanna Ross, Plaintiff Izzy Paris, Plaintiff Jessa Vandergrift, Plaintiff Jamie Shuemake, Plaintiff Crystal Coe, Plaintiff Channay Bun, Plaintiff Lisa Todd, Plaintiff Janie Vanwinkle, Plaintiff Bobbie Sue Corley, Plaintiff Jackie Richardson, Plaintiff Jenni fer Ayers, Plaintiff Kristen Mowry, Plaintiff Shonda Jeffrey, Plaintiff Heather Felix, Plaintiff Tiwianna Thomas, Plaintiff Shantel Smith, Plaintiff Artesia Holloway, Plaintiff Rikki Jo King, Plaintiff Sara Readdy, Plaintiff Analicia Graves, Plaintiff Rosemary Burns, Plaintiff Michelle Rubio, Plaintiff Laci Diaz-Rogers, Plaintiff Tiffany Patch, Plaintiff Arnisha Singleton, Plaintiff Tasha Morris, Plaintiff Lashonda Tripplett, Plaintiff Jennifer Silbaugh, 11 M OTION to Dismiss :Plaintiffs' Petition filed by Defendant Bayer Essure Inc., Defendant Bayer Corp., Defendant Bayer Healthcare LLC, Defendant Bayer Healthcare Pharmaceuticals, Inc., 22 MOTION to Stay and for Extension of Time per L.R. 6-1.05 filed by Plaintiff Elizabeth Roach, Plaintiff Lykeithia Thomas, Plaintiff Laura Mora, Plaintiff Freda Johnson, Plaintiff Tiffany Ord-Hester, Plaintiff Shirley Chappell, Plaintiff Rebecca Macias, Plaintiff Emi ly McLaughlin, Plaintiff Crystal Wordes, Plaintiff Elizabeth Aubrey, Plaintiff Darci Saypack, Plaintiff Jessica Coulter, Plaintiff Amanda Bray, Plaintiff Collene Belgin, Plaintiff Temeaka Walker, Plaintiff Rachel Simpson, Plaintiff Laur ona Phelps, Plaintiff Jane Vo, Plaintiff Misty Fernandez-River, Plaintiff Stephanie Virgin, Plaintiff Tara Hultgren, Plaintiff Evangelina Garcia, Plaintiff Elise Barba, Plaintiff Jeane Pina, Plaintiff Jennifer Zapata, Plaintiff Mist y Wham, Plaintiff Mikayla Hill-Levesque, Plaintiff Fonda Ivy, Plaintiff Hannah Ball, Plaintiff Nedra Dyson, Plaintiff Lesley Malone, Plaintiff Marie Brown, Plaintiff Angel Walls, Plaintiff Adriane Criswell, Plaintiff Samantha Escobedo , Plaintiff Katrina Botts, Plaintiff Allison Peeples, Plaintiff Taitiana Lynn, Plaintiff Staci Hall, Plaintiff Melissa Stone, Plaintiff Reyannh Starns, Plaintiff Ashley Reid, Plaintiff Lisa Presley, Plaintiff Bobby Hernandez, Plainti ff Jessica Huston, Plaintiff Brandy Burnett Steffek, Plaintiff Lindsay Watson, Plaintiff Kendra Clark, Plaintiff Felicia Quezada, Plaintiff Jeannie Alvarado, Plaintiff Samantha Wood, Plaintiff Kimberly King, Plaintiff April Molinar, Pl aintiff Amanda Howard, Plaintiff Melinda Burkhart, Plaintiff Tiffany Landenberger, Plaintiff Lathosha Long, Plaintiff Abbigale Medlock, Plaintiff Summer Swager, Plaintiff Tina Kimrey, Plaintiff Stephanie Dotson, Plaintiff Megan Cottri ll, Plaintiff Christina Holmes, Plaintiff Spencer Williamson, Plaintiff Breonna Stewart, Plaintiff Heather Gockel, Plaintiff Renee Pearson, Plaintiff Deanna Ross, Plaintiff Izzy Paris, Plaintiff Jessa Vandergrift, Plaintiff Jamie Shuem ake, Plaintiff Crystal Coe, Plaintiff Channay Bun, Plaintiff Lisa Todd, Plaintiff Janie Vanwinkle, Plaintiff Bobbie Sue Corley, Plaintiff Jackie Richardson, Plaintiff Jennifer Ayers, Plaintiff Kristen Mowry, Plaintiff Shonda Jeffrey, Pl aintiff Heather Felix, Plaintiff Tiwianna Thomas, Plaintiff Shantel Smith, Plaintiff Artesia Holloway, Plaintiff Rikki Jo King, Plaintiff Sara Readdy, Plaintiff Analicia Graves, Plaintiff Rosemary Burns, Plaintiff Michelle Rubio, Plai ntiff Laci Diaz-Rogers, Plaintiff Tiffany Patch, Plaintiff Arnisha Singleton, Plaintiff Tasha Morris, Plaintiff Lashonda Tripplett, Plaintiff Jennifer Silbaugh, 24 MOTION for Leave to Conduct Jurisdictional Discovery filed by Plaintiff Elizabeth Roach, Plaintiff Lykeithia Thomas, Plaintiff Laura Mora, Plaintiff Freda Johnson, Plaintiff Tiffany Ord-Hester, Plaintiff Shirley Chappell, Plaintiff Rebecca Macias, Plaintiff Emily McLaughlin, Plaintiff Crystal Wordes, Plaintiff Elizabeth Aubrey, Plaintiff Darci Saypack, Plaintiff Jessica Coulter, Plaintiff Amanda Bray, Plaintiff Collene Belgin, Plaintiff Temeaka Walker, Plaintiff Rachel Simpson, Plaintiff Laurona Phelps, Plaintiff Jane Vo, P laintiff Misty Fernandez-River, Plaintiff Stephanie Virgin, Plaintiff Tara Hultgren, Plaintiff Evangelina Garcia, Plaintiff Elise Barba, Plaintiff Jeane Pina, Plaintiff Jennifer Zapata, Plaintiff Misty Wham, Plaintiff Mikayla Hill-Lev esque, Plaintiff Fonda Ivy, Plaintiff Hannah Ball, Plaintiff Nedra Dyson, Plaintiff Lesley Malone, Plaintiff Marie Brown, Plaintiff Angel Walls, Plaintiff Adriane Criswell, Plaintiff Samantha Escobedo, Plaintiff Katrina Botts, Plainti ff Allison Peeples, Plaintiff Taitiana Lynn, Plaintiff Staci Hall, Plaintiff Melissa Stone, Plaintiff Reyannh Starns, Plaintiff Ashley Reid, Plaintiff Lisa Presley, Plaintiff Bobby Hernandez, Plaintiff Jessica Huston, Plaintiff Brand y Burnett Steffek, Plaintiff Lindsay Watson, Plaintiff Kendra Clark, Plaintiff Felicia Quezada, Plaintiff Jeannie Alvarado, Plaintiff Samantha Wood, Plaintiff Kimberly King, Plaintiff April Molinar, Plaintiff Amanda Howard, Plaintiff M elinda Burkhart, Plaintiff Tiffany Landenberger, Plaintiff Lathosha Long, Plaintiff Abbigale Medlock, Plaintiff Summer Swager, Plaintiff Tina Kimrey, Plaintiff Stephanie Dotson, Plaintiff Megan Cottrill, Plaintiff Christina Holmes, Pla intiff Spencer Williamson, Plaintiff Breonna Stewart, Plaintiff Heather Gockel, Plaintiff Renee Pearson, Plaintiff Deanna Ross, Plaintiff Izzy Paris, Plaintiff Jessa Vandergrift, Plaintiff Jamie Shuemake, Plaintiff Crystal Coe, Plaint iff Channay Bun, Plaintiff Lisa Todd, Plaintiff Janie Vanwinkle, Plaintiff Bobbie Sue Corley, Plaintiff Jackie Richardson, Plaintiff Jennifer Ayers, Plaintiff Kristen Mowry, Plaintiff Shonda Jeffrey, Plaintiff Heather Felix, Plaintiff T iwianna Thomas, Plaintiff Shantel Smith, Plaintiff Artesia Holloway, Plaintiff Rikki Jo King, Plaintiff Sara Readdy, Plaintiff Analicia Graves, Plaintiff Rosemary Burns, Plaintiff Michelle Rubio, Plaintiff Laci Diaz-Rogers, Plaintiff Tiffany Patch, Plaintiff Arnisha Singleton, Plaintiff Tasha Morris, Plaintiff Lashonda Tripplett, Plaintiff Jennifer Silbaugh, 14 MOTION to Sever filed by Defendant Bayer Essure Inc., Defendant Bayer Corp., Defendant Bayer Healthcare LLC, Defendant Bayer Healthcare Pharmaceuticals, Inc. IT IS HEREBY ORDERED that defendants' motion to dismiss (#11) is GRANTED in part with respect to personal jurisdiction and is HELD IN ABEYANCE with respect to federal preemption and failure to plead a plausible claim. IT IS HEREBY ORDERED that claims of all non-Missouri plaintiffs are DISMISSED for lack of personal jurisdiction. IT IS FURTHER ORDERED that the remaining Missouri resident plaintiffs shall have until February 20, 2018 to file a response brief addressing Sections III and IV of defendants' memorandum in support of their motion to dismiss. Defendants shall have until February 27, 2018 by which to file a reply brief. IT IS FURTHER ORDERED that the defend ants' motion to sever (#14) is DENIED as moot. IT IS FURTHER ORDERED plaintiffs' motion for remand (#18) is DENIED. IT IS FURTHER ORDERED that plaintiffs' motion to stay (#22) is DENIED as moot. IT IS FINALLY ORDERED that plaintiffs' motion for leave to conduct jurisdictional discovery (#24) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 1/24/18. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NEDRA DYSON, et al.

Plaintiffs,
v.
BAYER CORPORATION, et al.,

Defendants,

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No. 4:17CV2584 SNLJ

MEMORANDUM AND ORDER
A group of 95 plaintiffs filed this products liability lawsuit against defendants
Bayer Corporation, Bayer HealthCare LLC, Bayer Essure Inc., and Bayer HealthCare
Pharmaceuticals Inc. (collectively, “Bayer”) alleging that Bayer’s Essure product caused
them harm. Plaintiffs filed their lawsuit in the City of St. Louis, Missouri on August 31,
2017. Defendants removed the matter to this Court on October 16, 2017. Defendants
filed a motion to dismiss and a motion to sever on October 23. Shortly thereafter,
plaintiffs filed a motion to remand and a motion to stay ruling and briefing on the
defendants’ motions until after subject matter jurisdiction is addressed. The motion for
remand (#18) and motion to stay (#22) have been thoroughly briefed, but plaintiff has not
filed responses to the motion to dismiss. Plaintiff has also filed a motion for leave to
conduct jurisdictional discovery (#24), which is fully briefed.

I.

Background
Plaintiffs claim they were injured by a permanent birth control device that is

manufactured and distributed by the Bayer defendants. The device --- Essure --- was
approved by the Food and Drug Administration (“FDA”) in 2002. The plaintiffs bring
fourteen counts including negligence, strict liability, manufacturing defect, fraud, breach
of warranties, violation of consumer protection laws, Missouri products liability,
violation of the Missouri Merchandising Practices Act, and punitive damages. Of the 95
plaintiffs, only three allege they are citizens of Missouri or had their implant procedure
completed in Missouri. Defendants --- which are not Missouri citizens --- removed the
case in part1 on the basis of diversity jurisdiction. The presence of at least some of the 92
non-Missouri plaintiffs defeats this Court’s diversity jurisdiction. But defendants, relying
on the recent United States Supreme Court opinion Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., 137 S. Ct. 1773 (2017) (hereinafter, “BMS”), argue that this Court lacks
personal jurisdiction over the claims of the 92 non-Missouri plaintiffs, and that those
claims should thus be dismissed. Because there would be complete diversity between the
three remaining Missouri plaintiffs and defendants, and because the amount in
controversy exceeds $75,000, defendants contend this Court has jurisdiction over the
remaining claims.
1

Defendants also contend that this Court possesses (1) federal question jurisdiction due to
plaintiffs’ claims relationship to the federal regulatory process for the approval of the Essure
product and procedure and (2) diversity jurisdiction pursuant to the Class Action Fairness Act
(“CAFA”) when the Court considers the four other nearly-identical complaints filed by
plaintiffs’ counsel on behalf of well over 100 plaintiffs. See Hinton v. Bayer Corp., No. 4:16-cv01679 (E.D. Mo.), Johnson v. Bayer Corp., No. 4:17-cv-01533 (E.D. Mo.),McClain, v. Bayer
Corp., 4:17-cv-01534, and Schaffer v. Bayer Corp., No. 4:17-cv-01973 (E.D. Mo.).

2

Plaintiffs argue that this Court should not look to personal jurisdiction. Instead,
plaintiffs say this Court should recognize it does not have subject matter jurisdiction over
this matter and remand the case to St. Louis County. Subject matter jurisdiction,
plaintiffs argue, provides a more straightforward analysis. Personal jurisdiction, on the
other hand, poses questions that plaintiffs say entitle them to discovery. Plaintiffs
contend that the Bayer defendants conducted marketing and clinical trials in St. Louis,
Missouri, and that the marketing and clinical trials provide the facts necessary to make a
prima facie case of personal jurisdiction.
Plaintiffs have not responded to the motion to dismiss or motion to sever because
they seek a stay of the consideration of personal jurisdiction in favor of resolving the
subject matter jurisdiction questions at hand.
II.

Discussion
Central to all pending motions are matters regarding this Court’s jurisdiction.

Thus, jurisdiction and related motions will be discussed first below.
A.

Jurisdiction

“Jurisdiction to resolve cases on the merits requires both authority over the
category of claim in suit (subject-matter jurisdiction) and authority over the parties
(personal jurisdiction), so that the court’s decision will bind them.” Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 577 (1999). Here, plaintiffs contend that this Court
lacks subject matter jurisdiction over their claims and thus this Court should remand the
matter to state court. Defendants argue that the Court has subject matter jurisdiction but
not personal jurisdiction over certain claims and that the non-Missouri plaintiffs’ claims

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should be dismissed --- then, defendants say, this Court will have diversity jurisdiction
over the remaining claims.
The question of which to consider first --- personal jurisdiction or subject matter
jurisdiction --- can have important consequences. This Court has discretion to consider
personal jurisdiction before subject matter jurisdiction where it has “a straightforward
personal jurisdiction issue presenting no complex question of state law, and the alleged
defect in subject-matter jurisdiction raises a difficult and novel question.” Id. at 588.
Defendants urge the Court to consider personal jurisdiction first, relying heavily
upon BMS and Jordan v. Bayer Corp., No. 4:17cv865(CEJ), 2017 WL 3006993 (E.D.
Mo. July 14, 2017). In Jordan, this Court addressed a case nearly identical to this one in
which plaintiffs brought claims against Bayer defendants related to use of the Essure
device. The Court, relying upon Ruhrgas, addressed defendants’ personal jurisdiction
arguments first and concluded that BMS was dispositive, holding that “there is no
personal jurisdiction as to [the non-Missouri-related plaintiffs’2] claims because there is
no ‘connection between the forum and the specific claims at issue.’” Jordan, 2017 WL
3006993, at *4 (quoting BMS, 137 S.Ct. at 1781). Because the 86 non-Missouri-related
plaintiffs alleged no “affiliation between the forum and the underlying controversy,”
BMS, 137 S.Ct. at 1780, those claims were dismissed. The Court denied without
prejudice the defendants’ motion to dismiss for failure to state a claim or federal
preemption and allowed the eight remaining plaintiffs to file an amended complaint.
2

One Illinois plaintiff alleged she had her device implanted in Missouri. Her claim therefor
established personal jurisdiction over defendants. Id.

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Notably, the Court’s decision in Jordan occurred shortly after BMS was decided.3
The plaintiffs here have added allegations they say make a prima facie case of personal
jurisdiction. Plaintiffs concede that Essure was not implanted in Missouri for the nonresidents, but they contend Bayer engaged in extensive contacts with Missouri during
Essure’s development: plaintiffs say Bayer created a marketing strategy, created
labeling, and obtained FDA approval of Essure in Missouri. Specifically, Missouri was
one of eight principal sites in the United States chosen to conduct pre-market clinical
trials. The original manufacturer of Essure used Missouri hospitals and contracted with
Missouri physicians to serve as clinical investigators. The results of the ensuing studies
were used to support the FDA approval process. Plaintiffs allege that defendants made
untrue representations and omitted material information to the FDA, plaintiffs, and
plaintiffs’ physicians by sponsoring biased medical trials. (Petition ¶ 1044.) St. Louis,
Missouri was also the first city in the United States to commercially offer the Essure
procedure. Furthermore, plaintiffs believe that Missouri was one of the first cities
targeted for an aggressive marketing campaign.
Defendants respond that those additional allegations do not suffice to either make
a case for personal jurisdiction or for jurisdictional discovery. Moreover, defendants
argue that the personal jurisdiction question remains more straightforward than the
question of subject matter jurisdiction. This Court agrees that, despite these new
3

The Jordan plaintiffs filed an amended complaint similar to the complaint here --- adding
personal jurisdiction allegations --- shortly before the Jordan decision was filed. However, that
amended complaint was not properly before the Court because it had been filed without leave of
Court. The Court has recently allowed the amendment. See Jordan v. Bayer Corp., 4:17-CV00865-AGF, 2018 WL 339305, at *2 (E.D. Mo. Jan. 8, 2018).

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allegations made by plaintiffs, personal jurisdiction remains the more straightforward
inquiry. See BMS, 137 S.Ct. at 1781; Jordan, 2017 WL 3006993, at *2; see also State ex
rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W.3d 41(Mo. banc 2017). To address subject
matter jurisdiction at this juncture would involve deciding whether non-Missouri
plaintiffs had been fraudulently joined or misjoined, which is a notoriously complex
issue. See In re Prempro Prods. Liab. Litig., 591 F.3d 613, 622 (8th Cir. 2010) (noting
that doctrine of fraudulent misjoinder is “novel” and declining to rule on whether to
accept or reject it); Filla v. Norfolk S. Ry., 336 F.3d 806, 809 (8th Cir. 2003) (noting that
doctrine of fraudulent joinder is “difficult[]” to apply). As shown below, the personal
jurisdiction inquiry is a much simpler matter.4 Further, because plaintiffs do not make a
prima facie showing for personal jurisdiction, see Lakin v. Prudential Securities, Inc.,
348 F.3d 704, 709 (8th Cir. 2003), the motion for jurisdictional discovery (#24) will be
denied.
“To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must
plead ‘sufficient facts to support a reasonable inference that the defendant[ ] can be
subjected to jurisdiction within the state.’” Creative Calling Sols., Inc. v. LF Beauty Ltd.,
799 F.3d 975, 979 (8th Cir. 2015) (quoting K–V Pharm. Co. v. J. Uriach & CIA, S.A.,
648 F.3d 588, 591–92 (8th Cir. 2011)). “The evidence must be viewed in a light most
favorable to the plaintiff; however, the burden does not shift to the party challenging

4

Plaintiffs have not yet responded to the defendants’ motion to dismiss in light of their motion to
stay (#22) and motion to remand (#18). Because the plaintiffs have made their arguments for
personal jurisdiction in their other motions’ briefing, however, the Court will consider the
motion to dismiss now in the interest of judicial economy.

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jurisdiction.” Jordan, 2017 WL 3006993, at *3 (citing Fastpath, Inc. v. Arbela Techs.
Corp., 760 F.3d 816, 820 (8th Cir. 2014).
Personal jurisdiction may be either general or specific. Fastpath, 760 F.3d at 593.
Plaintiffs do not argue that general jurisdiction may be applied to defendants, so the
Court will address only specific jurisdiction. “Specific jurisdiction refers to jurisdiction
over causes of action arising from or related to a defendant’s actions within the forum
state....” Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir. 1994))
(quoting Sondergard v. Miles, Inc., 985 F.2d 1389, 1392 (8th Cir. 1993)). “Specific
personal jurisdiction can be exercised by a federal court in a diversity suit only if
authorized by the forum state’s long-arm statute and permitted by the Due Process Clause
of the Fourteenth Amendment.” Dairy Farmers of America, Inc. v. Bassett & Walker
Int’l, Inc., 702 F.3d 472, 475 (8th Cir. 2012) (quoting Viasystems, Inc. v. EBM-Papst St.
Georgen GmbH & Co., KG, 646 F.3d 589, 593 (8th Cir. 2011)). These are separate
questions: “The reach of a state long arm statute is a question of state law, while the
extent to which the reach of a long arm statute is limited by due process is a question of
federal law.” Jordan, 2017 WL 3006993, at *3 (internal quotations to Inst. Food Mktg.
Assocs., Ltd. v. Golden State Strawberries, Inc., 747 F.2d 448, 455 (8th Cir. 1984)
omitted).
“Missouri’s long-arm statute authorizes personal jurisdiction over corporate
defendants who transact business or commit a tort within the state.” Id.; § 506.500.1(1),
(3) RSMo. “Because the Missouri long-arm statute authorizes the exercise of jurisdiction
over non-residents to the extent permissible under the due process clause,” this Court

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considers “whether the assertion of personal jurisdiction would violate” due process.
Eagle Tech. v. Expander Americas, Inc., 783 F.3d 1131, 1136 (8th Cir. 2015) (quotations
and citations omitted). In determining “whether asserting personal jurisdiction over a
party comports with due process,” this Court considers five factors: “(1) the nature and
quality of the contacts with the forum state; (2) the quantity of those contacts; (3) the
relationship of those contacts with the cause of action; (4) Missouri’s interest in
providing a forum for its residents; and (5) the convenience or inconvenience to the
parties.” Id. The Court gives “significant weight to the first three factors.” Aly v.
Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 848 (8th Cir.), cert. denied sub nom.
Hanzada for Imp. & Exp. Co., Ltd. v. Aly, 138 S. Ct. 203 (2017) (quoting Fastpath, Inc.
v. Arbela Techs. Corp., 760 F.3d 816, 819 (8th Cir. 2014)).
The recent Supreme Court decision BMS focuses on the connection between the
nonresidents’ claims and the forum. BMS, 137 S.Ct. at 1782. In BMS, out-of-state
plaintiffs and California plaintiffs brought claims in California state court based on
injuries allegedly caused by defendant BMS’s drug Plavix. Id. at 1777. The California
court held that out-of-state plaintiffs established personal jurisdiction over defendants
despite the fact that those plaintiffs suffered no injury in California. However, on writ of
certiorari, the United States Supreme Court ordered that the claims of the out-of-state
plaintiffs must be dismissed, stating “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. at 1780 (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). The

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Supreme Court further cautioned that, under the California court’s approach, “the
strength of the requisite connection between the forum and the specific claims at issue is
relaxed if the defendant has extensive forum contacts that are unrelated to those claims.”
Id. at 1781. The Supreme Court called this “a loose and spurious form of general
jurisdiction.” Id. Instead, the Court held that the defendant’s activities in the forum were
not adequately linked to the claims brought by non-resident plaintiffs; in other words,
because the claims did not arise from the defendant’s activities, specific personal
jurisdiction was not available. See id. In that regard, the Court observed,
the nonresidents were not prescribed Plavix in California, did not purchase
Plavix in California, did not ingest Plavix in California, and were not
injured by Plavix in California. The mere fact that other plaintiffs were
prescribed, obtained, and ingested Plavix in California—and allegedly
sustained the same injuries as did the nonresidents—does not allow the
State to assert specific jurisdiction over the nonresidents’ claims. As we
have explained, “a defendant’s relationship with a ... third party, standing
alone, is an insufficient basis for jurisdiction.” Walden, 571 U.S., at ––––,
134 S.Ct., at 1123. This remains true even when third parties (here, the
plaintiffs who reside in California) can bring claims similar to those
brought by the nonresidents. Nor is it sufficient—or even relevant—that
BMS conducted research in California on matters unrelated to Plavix. What
is needed—and what is missing here—is a connection between the forum
and the specific claims at issue.
Id.
The Supreme Court also observed, however, in discussing the facts of the case,
that “BMS did not develop, create a marketing strategy for, manufacture, label, package,
or work on the regulatory approval for Plavix in [California.]” Id. at 1778. Plaintiffs
seize upon that language and suggest the Supreme Court offered those factors as a
blueprint for establishing personal jurisdiction. Plaintiffs thus believe they have solved

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their personal jurisdiction problems because they allege that the defendants worked on
regulatory approval for Essure in Missouri and also worked on the Essure marketing
campaign in Missouri. Plaintiffs argue that they have at least made a prima facie case for
personal jurisdiction and that they should be able to conduct jurisdictional discovery to
prove the plaintiffs’ claims’ connections to Missouri.
Even assuming that discovery would prove exactly what plaintiffs contend
happened in Missouri with respect to Essure marketing and clinical trials, the individual
plaintiffs’ claims are too attenuated from those activities to prove specific, “case-linked”
personal jurisdiction. The links that plaintiffs propose, if allowed, would violate the Due
Process Clause. With respect to plaintiffs’ arguments that personal jurisdiction may be
supported by the alleged Missouri marketing campaign genesis, those arguments are
contrary to BMS. In fact, the BMS plaintiffs themselves alleged that BMS marketed,
advertised, and actively sought to promote Plavix in California specifically. Id. at 1779,
1783. Plaintiffs here go a step farther, saying defendants used Missouri as “ground zero”
for its national campaign --- that is, St. Louis was the first city to commercially offer the
Essure procedure and was one of eight “test marketing” campaign sites. (Petition ¶ 165.)
Plaintiffs also state that defendants cite to data from the Missouri clinical trials on
Essure’s labels and in marketing materials distributed to plaintiffs and their physicians.
(Id.) Plaintiffs add that defendants’ success with Essure in St. Louis allowed defendants
to achieve profitability and launch a nationwide advertising campaign. (Id.) However,
the non-Missouri plaintiffs do not allege they viewed Essure advertising in Missouri.
That Missouri happened to be Essure’s first marketed area has no bearing on the non-

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Missouri plaintiffs’ claims where those plaintiffs did not see marketing in Missouri, were
not prescribed Essure in Missouri, did not purchase Essure in Missouri, and were not
injured by Essure in Missouri. Thus the allegations still do not suffice to provide the
necessary “connection between the forum and the specific claims at issue.” BMS, 137
S.Ct. at 1781.
As for plaintiffs’ allegations about the clinical trials having occurred in Missouri,
plaintiffs argue that such activities play directly into BMS’s invitation to prove personal
jurisdiction by showing the defendant “work[ed] on the regulatory approval of the
product” in Missouri. Id. at 1778. But the Missouri clinical trials --- the existence of
which defendants readily admit --- are simply too attenuated to serve as a basis for
specific personal jurisdiction for defendants. Indeed, the trials would serve more
properly as evidence of general personal jurisdiction. The non-Missouri plaintiffs do not
allege they participated in a Missouri clinical study or that they reviewed and relied on
Missouri clinical studies in deciding to use Essure. Plaintiffs also seem to suggest that
specific jurisdiction exists because Essure could not have been approved without clinical
trials, and some of those clinical trials occurred in Missouri. But again, this does not
serve as an “adequate link” between Missouri and nonresidents’ claims that their
individual device injured them in another state. See id. at 1781.
In contrast, courts have found specific personal jurisdiction, for example, where a
non-Missouri defendant sold a car over the internet to a Missouri resident. Andra v. Left
Gate Prop. Holding, Inc., 453 S.W.3d 216, 226–27 (Mo. banc 2015). In another case,
where an insurance company brought a declaratory judgment claim against an Arizona

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defendant in Missouri seeking a declaration that the insurance company had no liability
regarding a workers’ compensation claim, this Court found specific personal jurisdiction
over defendant because the defendant had initiated the workers’ compensation claim in
Missouri. New Hampshire Ins. Co. v. Pennington, 1:17CV00142 ACL, 2018 WL
465787, at *4 (E.D. Mo. Jan. 18, 2018). On the other hand, however, no specific
personal jurisdiction was found in Missouri over a railroad company for an accident that
occurred in Indiana despite the fact that the railroad had many miles of train track (and
numerous employees) in Missouri --- the Missouri activities were not sufficiently related
to the claim, which occurred entirely in Indiana. Dolan, 512 S.W.3d at 49.
The Court concludes that it does not have jurisdiction over defendants for the nonMissouri plaintiffs’ claims. As a result, the non-Missouri plaintiffs’ claims will be
dismissed. Because the Court has diversity jurisdiction over the Missouri plaintiffs’
claims, the Court will deny the plaintiffs’ motion to remand (#18).
B.

Federal Preemption

Defendants also argue in their motion to dismiss that the entire complaint should
be dismissed because the claims are preempted by federal law. The parties’ briefing on
this matter within the motion to remand devolved into an argument about jurisdiction,
and thus the matter has not been fully addressed. The parties shall complete briefing on
this matter before the Court fully adjudicates the motion to dismiss.
C.

Failure to Plead a Plausible Claim for Relief

As with defendants’ federal preemption argument, defendants’ argument that
plaintiffs failed to plead a plausible claim for relief has also not been fully addressed by
the parties. The parties shall complete briefing on this matter before the Court fully
adjudicates the motion to dismiss.

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Accordingly,
IT IS HEREBY ORDERED that defendants’ motion to dismiss (#11) is
GRANTED in part with respect to personal jurisdiction and is HELD IN ABEYANCE
with respect to federal preemption and failure to plead a plausible claim.
IT IS HEREBY ORDERED that claims of all non-Missouri plaintiffs are
DISMISSED for lack of personal jurisdiction.
IT IS FURTHER ORDERED that the remaining Missouri resident plaintiffs shall
have until February 20, 2018 to file a response brief addressing Sections III and IV of
defendants’ memorandum in support of their motion to dismiss. Defendants shall have
until February 27, 2018 by which to file a reply brief.
IT IS FURTHER ORDERED that the defendants’ motion to sever (#14) is
DENIED as moot.
IT IS FURTHER ORDERED plaintiffs’ motion for remand (#18) is DENIED.
IT IS FURTHER ORDERED that plaintiffs’ motion to stay (#22) is DENIED as
moot.
IT IS FINALLY ORDERED that plaintiffs’ motion for leave to conduct
jurisdictional discovery (#24) is DENIED.
Dated this

24th

day of January, 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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