C.S. et al v. Forest Research Institute, Inc. et al

Filing 27

MEMORANDUM OPINION AND ORDER DENYING Plaintiffs' 20 MOTION to Stay Consideration of Defendants' 2 motion to dismiss, GRANTING Plaintiffs' 18 MOTION to Remand to Circuit Court; DENYING Defendants' 2 MOTION to Dismiss; and DENYING as moot Plaintiffs' 15 MOTION to Consolidate Cases. Signed by Judge Robert C. Chambers on 3/31/2016. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
Erica J. Atkinson, Individually and as the
Representative of the Estate of S.C., Deceased;

Civil Action No. 3:15-cv-09302

B.B., a minor, by and through his mother
and next friend Jennifer Barker;

Civil Action No. 3:15-cv-09303

K.W., a minor, by and through his mother
and next friend Brandi Workman;

Civil Action No. 3:15-cv-09304

B.A., a minor, by and through her mother
and next friend Jaclynn Bayley;

Civil Action No. 3:15-cv-09305

J.V., a minor, by and through his mother
and next friend Diane Vaspory;

Civil Action No. 3:15-cv-09306

C.S., a minor, by and through his mother
and next friend Rachel Stafford;

Civil Action No. 3:15-cv-09307

S.B, a minor, by and through her mother
and next friend Kathleen Burch;

Civil Action No. 3:15-cv-09308

D.R., a minor, by and through her mother
and next friend Loretta Ridener;

Civil Action No. 3:15-cv-09309

J.D., a minor, by and through his mother
and next friend Svenja Damele;

Civil Action No. 3:15-cv-09310

S.G., a minor, by and through her mother
and next friend Alexis Griffith;

Civil Action No. 3:15-cv-09311

Kassi Emerson, Individually and as the
Representative of the Estate of J.A., Deceased;

Civil Action No. 3:15-cv-09312

M.R., a minor, by and through his mother
and next friend Bianca Folwell;

Civil Action No. 3:15-cv-09313

Plaintiffs,
v.
Forest Research Institute, Inc.,
Forest Laboratories, Inc., and Forest
Pharmaceuticals,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending are identical motions to dismiss, consolidate, remand, and stay consideration in
numerous identical actions brought by minors, representatives of minors’ estates, and minors’
parents (collectively “Plaintiffs”) against Defendants Forest Research Institute, Inc., Forest

Laboratories, Inc., and Forest Pharmaceuticals (collectively “Defendants”). ECF Nos. 2 (motion
to dismiss), 12 (motion to consolidate), 17 (motion to remand), 19 (motion to stay). 1 First,
Defendants ask to dismiss out of state Plaintiffs for lack of personal jurisdiction. ECF No. 2.
Second, Plaintiffs ask the Court to stay consideration of Defendants’ motion to dismiss in order to
first consider Plaintiffs’ motion to remand these actions back to West Virginia state court. ECF
No. 19 (Motion to Stay); ECF No. 17 (Motion to Remand). Lastly, if this action remains before
the Court after it resolves these motions to dismiss and remand, Plaintiffs ask the Court to
consolidate their actions against Defendants into a single case. ECF No. 12. For the reasons
explained below, the Court DENIES Plaintiffs’ motion to stay consideration of Defendants’
motion to dismiss, GRANTS Plaintiffs’ motion to remand, DENIES Defendants’ motion to
dismiss, and DENIES as moot Plaintiffs’ motion to consolidate.
I.

Background

This action arises from birth defects allegedly resulting from ingestion of the prescription
drug Celexa or Lexapro by women during their pregnancy. See Compl., ECF No. 1–1. The twelve
actions listed in this order were initially brought through a single complaint filed in West Virginia
state court. Plaintiffs contend their claims are properly joined in a single action.2 Compl. ¶ 44.

1

Because the motions in each case are identical, the Court refers to them in the singular, although
technically there are identical motions in each case. Citations to electronic case file numbers are
to the numbers assigned in the first-listed case in the style of this Memorandum Opinion and Order,
No. 3:15-cv-09302, but the citations refer and apply to the same documents filed in the following
eleven cases with Civil Action Nos. 3:15-cv-09303, 3:15-cv-09304, 3:15-cv-09305, 3:15-cv09306, 3:15-cv-09307, 3:15-cv-09308, 3:15-cv-09309, 3:15-cv-09310, 3:15-cv-09311, 3:15-cv09312, 3:15-cv-09313.
2
Although plaintiffs have twelve separate case numbers in this proceeding, the Court treats these
actions as a single case because the claims were filed in a single complaint in West Virginia state
court, from which this case was removed. See J.C. ex rel. Cook v. Pfizer, Inc., No. 3:12-CV-04103,
2012 WL 4442518, at *3 (S.D.W. Va. Sept. 25, 2012) (holding administrative separation of claims
in state court did not determine the propriety of joinder in federal court where plaintiffs had
instituted the state court case by filing single complaint). The Court will discuss below whether or
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Plaintiffs are minors, representatives of minors’ estates, and minors’ parents claiming citizenship
individually in West Virginia, Ohio, Illinois, Nevada, Kentucky, New Jersey, New Mexico, Texas,
Indiana, and Florida. Compl. ¶¶ 34–45. Defendants are three pharmaceutical corporations claiming
citizenship in New Jersey, Missouri, and Delaware. Notice of Removal ¶ 4, ECF No. 1; Compl. ¶¶
52–54. Plaintiffs bring this action to recover damages, including medical and other expenses
related to the treatment resulting from birth defects, disorders, and other illnesses suffered by the
minor Plaintiffs, allegedly as a result of Defendants’ failure to warn, strict product liability for
design defect, negligent acts, breach of express and implied warranties, fraud, negligent infliction
of emotional distress, and wrongful death. See Compl. ¶¶ 123–203.
II.

Discussion

For the reasons offered below, this case must be remanded to West Virginia state court.
The Court first considers Plaintiffs’ motion to stay consideration of Defendants’ motion to dismiss;
second, Plaintiffs’ motion to remand based on lack of subject matter jurisdiction; third,
Defendants’ motion to dismiss based on lack of personal jurisdiction; and finally, Plaintiffs’
consolidation motion.
A. Motion to Stay Consideration of Defendants’ Motion to Dismiss
Plaintiffs ask for a stay, but their motion is moot. Essentially, Plaintiffs argue the Court
should consider Plaintiffs’ motion to remand for lack of subject matter jurisdiction before
considering Defendants’ motion to dismiss for lack of personal jurisdiction. Defendants vigorously
oppose this, and ask the Court to first consider their motion to dismiss. Because both motions are
fully ripe, there is no need to stay consideration and the Court will resolve both motions in this

not it is proper under Federal Rule of Civil Procedure 20 to join Plaintiffs’ claims.
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single Memorandum Opinion and Order. Therefore, the Court DENIES Plaintiffs’ motion to stay
consideration of Defendant’s motion to dismiss.
The sequence for considering and deciding multiple jurisdictional challenges presented at
the same time is a matter left to the discretion of district courts. Sinochem Int'l Co. v. Malaysia
Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to choose among
threshold grounds for denying audience to a case on the merits.’”) (quoting and citing Ruhrgas AG
v. Marathon Oil Co., 526 U.S., 574, 585 (1999)). When faced with both a constitutional question
and a statutory question, and where resolution of the statutory question may moot the constitutional
question, courts should first consider the statutory question, and then, if necessary decide the
constitutional question. See United States v. Sec. Indus. Bank, 459 U.S. 70, 78 (1982) (“We
consider the statutory question because of the cardinal principle that this Court will first ascertain
whether a construction of the statute is fairly possible by which the constitutional question may be
avoided.”) (internal quotations and citation omitted). Defendants’ personal jurisdiction challenge
involves a constitutional question, see Defs.’ Resp. to Mot. to Stay at 5 (“Defendants’ personal
jurisdiction arguments are premised on . . . constitutional law”), while Plaintiffs’ subject matter
jurisdiction inquiry involves only interpreting Federal Rule of Civil Procedure 20’s standard for
misjoinder and fraudulent joinder, see Defs.’ Resp. at 8–19 (arguing misjoinder and fraudulent
joinder under Federal Rule 20(a)); Pls.’ Memo in Supp. of Mot to Remand at 7. Under the cardinal
principle requiring resolution of statutory issues before avoidable constitutional issues, the Court
will first consider Plaintiffs’ motion to remand for lack of subject matter jurisdiction, then
Defendants’ motion to dismiss for lack of personal jurisdiction.
B. Motion to Remand Based on Lack of Subject Matter Jurisdiction

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Plaintiffs argue Defendants improperly removed this case to federal court. See, e.g., Mot.
to Remand at 2. In their removal notice, Defendants allege removal under 28 U.S.C. § 1441 is
proper because the Court has diversity jurisdiction over this action. Notice of Removal 2, ECF No.
1. Plaintiffs contend that complete diversity is not met in this case because two plaintiffs are
citizens of the same state as Defendants, and therefore, according to Plaintiffs, diversity
jurisdiction is destroyed. Defendants, who admit they are citizens of New Jersey, respond by
arguing that the two New Jersey Plaintiffs are improperly joined and, in the alternative,
fraudulently joined.3 And in either event, Defendants argue the New Jersey Plaintiffs should be
dismissed from this case, which would imbue the Court with diversity jurisdiction over this action.
Because the Court finds the New Jersey Plaintiffs are properly joined under Federal Rule of Civil
Procedure 20(a), and because the New Jersey Plaintiffs are not fraudulently joined, the Court finds
complete diversity lacking, diversity jurisdiction over this action is destroyed, and the case must
be remanded to West Virginia state court for lack of federal subject matter jurisdiction.
The party seeking removal bears the burden of demonstrating federal subject matter
jurisdiction. Sonoco Prods. Co. v. Physicians Health Plan, Inc., 338 F.3d 366, 370 (4th Cir. 2003)
(citation omitted)). This burden is significant, because removal jurisdiction must be strictly
construed against removal. See, e.g., Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148,
151 (4th Cir. 1994) (“Because removal jurisdiction raises significant federalism concerns, we must
strictly construe removal jurisdiction.”) (citation omitted); Baisden v. Bayer Corp., 275 F.Supp.2d
759, 761 (S.D.W. Va. 2003).

3

It is undisputed that Plaintiffs J.V. and Diane Vaspory are citizens of New Jersey, the same state
where Defendants are citizens. Notice of Removal ¶ 4, ECF No. 1; Compl. ¶¶ 40, 52–54.
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Under 28 U.S.C. § 1332, federal diversity jurisdiction requires complete diversity between
the parties and an amount in controversy exceeding $75,000. The complete diversity requirement
does not flow directly from the statutory language, but is instead a long-standing, judge-made rule
strictly construing the diversity statute. See Strawbridge v. Curtiss, 7 U.S. 267 (1806); Exxon Mobil
Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553 (2005). Thus in an action based on diversity
jurisdiction, “the presence in the action of a single plaintiff from the same State as a single
defendant deprives the district court of original diversity jurisdiction over the entire action.”
Allapattah, 545 U.S. at 553.
1. Misjoinder under Federal Rule 20(a)(1)
The Defendants have not met their burden of showing the New Jersey Plaintiffs’ claims
are improperly joined in one action with the claims of the remaining Plaintiffs. Under Federal Rule
20(a)(1), joinder of claims is appropriate when (A) the claims arise out of the same transaction,
series of transactions, or occurrences, and (B) the claims share some question of law or fact in
common. Fed. R. Civ. P. 20(a)(1). Misjoinder is present, and severance appropriate, when the
claims asserted by or against joined parties do not arise out of the same transaction or occurrence
or do not present some common question of law or fact. Jonas v. Conrath, 149 F.R.D. 520, 523
(S.D.W. Va. 1993) (citations omitted).
Applying Rule 20(a)(1)(A), the claims of the New Jersey Plaintiffs arise out of the same
transaction, series of transactions, or occurrences as the claims of the remaining plaintiffs. In
determining whether claims arise from the same transaction or occurrence, the focus is on the
relationship between events giving rise to the action. See Moore v. N.Y. Cotton Exch., 270 U.S.
593, 610 (1926) (“Transaction is a word of flexible meaning. It may comprehend many
occurrences, depending not so much upon the immediateness of their connection as upon their

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logical relationship.”). “Accordingly, all ‘logically related’ events entitling a person to institute a
legal action against another generally are regarded as comprising a transaction or occurrence.”
Mosley v. Gen. Motors Corp., 497 F.2d 1330 (8th Cir. 1974). The Supreme Court of the United
States has said that Rule 20(a) must be interpreted to allow for the “broadest possible scope of
action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly
encouraged.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 724 (1966). The rule must be
construed “in light of its purpose, which is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits.” Saval v. BL Ltd., 710 F.2d 1027,
1031 (4th Cir. 1983) (citations omitted). Absolute identity of all events giving rise to the claims is
unnecessary. Id.
Here, the events giving rise to Plaintiffs’ claims are logically related because each claim is
based on the same allegedly defective pharmaceutical design, negligent development and
production, fraudulent marketing, deceptive sales practices, breach of warranties, and distribution
without adequate labeling of known risks and without warning about the drugs’ inherent dangers.
Compl. ¶¶ 51, 85, 86, 88, 89–93, 104–119. The differences Defendants point out among Plaintiff
Mothers—differing medical histories, unique prescription regimens, varying individual
conversations with Defendants, differing dosages taken, ingesting Lexapro as opposed to Celexa
or vice versa (both drugs are the subject of this action)—do not defeat the logical relation between
these claims. The same is true for the immaterial differences among Plaintiff Minors’ claims;
differing birth dates, individualized prenatal care regimens, unique environmental risk factors, and
personal genetic risk factors do not destroy the logical relation shared among Plaintiff Minors’
claims. The differing factual circumstances among Plaintiff Mothers’ claims, and those among
Plaintiff Minors’ claims, may require resolving different issues at trial, but these differences do

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not create logically distinct transactions or occurrences for purposes of Rule 20(a)(1)(A); all
Plaintiffs allege generally the same causes of action against Defendants. Although there may be
some differences in the circumstances giving rise to Plaintiffs’ claims, that does not defeat the
logical relation among these claims which makes them the same transaction or occurrence.
Rule 20(a)(1)(B)’s requirement—that Plaintiffs state a common question of law or fact—
is also met. The facts alleged in support of each Plaintiffs’ claims are nearly identical. Each
Plaintiff Mother was prescribed, purchased, and ingested the same two birth defect-causing drugs;
and each Plaintiff Minor suffered a birth defect as a result. Compl. ¶ 50. Defendants’ knowledge
of adverse risks associated with its two pharmaceuticals will not change from claim to claim. Id. ¶
47–50. The products ingested are identical in design, manufacture, and labeling. Id. ¶ 51.
Defendants’ actionable conduct in designing, manufacturing, labeling, and marketing is all nearly
identical. Id. The defective nature of the two pharmaceuticals will be proven by the same national,
peer-reviewed standards applicable to each claim. Id. The warning labels are necessarily identical,
on account of federal regulations requiring such. Id. The issues for each Plaintiff’s claim related
to Defendants’ testing, manufacturing, research, development, adverse event reporting, refusal to
change their identical warning labels, marketing misrepresentations, and post-marketing studies
are all either identical or almost identical. Id. ¶ 47–48. As such, the Court finds the New Jersey
Plaintiffs’ claims share a question of law or fact in common with the remaining Plaintiffs’ claims.
Therefore, the New Jersey Plaintiffs are properly joined under Federal Rule 20(a)(1) to this action.
As a final matter, the Court finds its Grennell decision distinguishable from this case, and
instead, it relies on its Pfizer decision, which is directly on point. In Grennell this Court held
plaintiffs were fraudulently joined to an action over allegedly fraudulent sales practices because

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both prongs of Federal Rule 20(a)(1) were unmet.4 Grennell v. Western Southern Life Ins. Co.,
298 F.Supp.2d 390, 399 (S.D.W. Va. 2004). Federal Rule 20(a)(1)(A)’s transaction or occurrence
requirement was unmet because plaintiffs alleged defendants committed a fraud over the course
of 1,800 separate insurance policy sales transactions where each purchase was induced by a
different misrepresentation. Id. at 397–98. The Court noted that had plaintiffs relied upon the same
misrepresentations, the transaction or occurrence requirement would have been met. Id. at 398. In
this case, Plaintiffs allege they were induced to purchase one of two allegedly defective
pharmaceuticals by way of the same misrepresentations made by Defendants. Compl. ¶¶ 51, 89–
91. Thus, Grennell’s conclusion regarding 20(a)(1)(A)’s transaction or occurrence requirement is
not applicable to this case on that ground alone.
Additionally,

Grennell’s

conclusion

regarding

20(a)(1)(B)’s

common

question

requirement is also inapplicable. In Grennell, the common question requirement was unsatisfied
because although plaintiffs alleged claims arising under the same area of law—
misrepresentation—the facts that formed the bases for these claims were unique to each plaintiff.
Grennell, 289 F.Supp.2d at 399. “In the absence of allegations that [p]laintiffs were misled by the
same misrepresentation, joinder of [p]laintiffs’ fraud claims is not permitted under [Rule 20(a)’s
common question requirement].” Id. In Grennell, the only connection between plaintiffs was that
they were victims of the defendant’s separate acts of fraud. Id. By contrast, Plaintiffs in this case
allege many common questions of law and fact, including: whether or not the two pharmaceuticals
prescribed to Plaintiffs were defective; whether or not the defective product design gives rise to
strict liability, negligence liability, or no liability; and whether or not identical misrepresentations

4

The Court notes that its application of the fraudulent joinder doctrine in Grennell was identical
to misjoinder analysis, and in this Memorandum Opinion and Order, the Court has applied the two
analyses in a manner distinct from one another.
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that induced Plaintiff mothers to ingest the allegedly defective pharmaceuticals were fraudulent.
And there a host of other factual and legal questions shared by Plaintiffs, but reciting these is
unnecessary because Rule 20(a)(1)(B) requires only one common question of law or fact.
In the end, Plaintiffs’ claims are more alike than they are unalike, making Plaintiffs’ claims
in this case more akin to the claims joined in Pfizer. See Pfizer, Inc., 2012 WL 4442518, at *3
(finding 20(a)(1)(A)’s transaction or occurrence requirement met where plaintiffs’ claims arose
out of the same design, mass production, and distribution, without adequate labeling and warnings,
of an allegedly defective pharmaceutical); id at 6 (finding 20(a)(1)(B)’s common question
requirement met where plaintiffs shared questions of fact regarding product design, defendants’
knowledge, and defendants’ representations).
Having found Rule 20(a)(1)’s joinder requirement met with regard to the New Jersey
Plaintiffs’ claims, and looking to Pfizer, the Court concludes Defendants have not met their burden
of showing misjoinder of the New Jersey Plaintiffs to this action.
2. Fraudulent Joinder Doctrine
The New Jersey Plaintiffs are not fraudulently joined to this action. The “fraudulent
joinder” doctrine “permits a district court to disregard, for jurisdictional purposes, the citizenship
of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse
defendants, and thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999).
In Grennell, this Court held the fraudulent joinder doctrine applies to plaintiffs as well as
defendants. Grennell, 298 F.Supp.2d at 396. In such case, a defendant seeking to dismiss a
nondiverse plaintiff must prove that the nondiverse plaintiff cannot establish a claim against the
defendant, “even after resolving all issues of fact and law in the plaintiff's favor.” Marshall v.
Manville Sales Corp., 6 F.3d 229, 232–33 (4th Cir. 1993). The defendant must show that no

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possibility of a right to relief has been asserted. Id. at 233. The Fourth Circuit has held that “this
standard is even more favorable to the plaintiff than the standard for ruling on a motion to dismiss
under Fed. R. Civ. P. 12(b)(6).” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999);
see also Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992) (“[W]hile we will not
apply a Rule 12(b)(6) standard in examining [the plaintiff's claims], we will examine the complaint
and the district court's opinion to determine whether they could support a conclusion that the claims
. . . were not even colorable, i.e., were wholly insubstantial and frivolous.”).
In this case, Defendants do not contend the New Jersey Plaintiffs’ claims fail on the merits;
instead, they maintain the New Jersey Plaintiffs’ claims, and claims of other Plaintiffs who are not
citizens of West Virginia, must fail on jurisdictional grounds because courts in West Virginia do
not have personal jurisdiction over the Defendants with regard to claims brought by “out-of-state”
Plaintiffs. Def.’s Resp. at 9. The Court finds Defendants’ fraudulent joinder based on lack of
personal jurisdiction argument without merit. The Court is unable to locate a single case where the
fraudulent joinder doctrine has been applied to sever plaintiffs because the forum court might not
have personal jurisdiction over the defendants. The fraudulent joinder doctrine, as developed so
far, considers the merits of claims, not jurisdictional issues. Moreover, in this case the issue of
personal jurisdiction may require jurisdictional discovery concerning Defendants’ marketing and
distribution activities in West Virginia, making the jurisdiction issue inappropriate to resolve in
the context of a fraudulent joinder analysis and more appropriate for the state court to decide on
remand. Construing all facts in favor of the New Jersey Plaintiffs, the New Jersey Plaintiffs have
possible claims against Defendants in this action, making the fraudulent joinder doctrine
inapplicable to this action.

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In sum, the Court finds this case lacks complete diversity. Plaintiffs J.V. and Diane
Vaspory are citizens of New Jersey, the same state as Defendants. Furthermore, the New Jersey
Plaintiffs are properly joined to this action under Federal Rule of Civil Procedure 20, and they are
not fraudulently joined here. Therefore, the Court finds complete diversity lacking; diversity
jurisdiction over this action is destroyed; and the case must be remanded back to West Virginia
state court for lack of federal subject matter jurisdiction. For the foregoing reasons, the Court
GRANTS Plaintiffs’ motion to remand these actions back to West Virginia state court.
C. Motion to Dismiss Based on Lack of Personal Jurisdiction
Because these cases must be remanded to West Virginia state court, the Court DENIES
Defendants’ motion to dismiss based on lack of personal jurisdiction.
D. Consolidation of Plaintiffs’ Actions Against Defendants into a Single Case
Because these cases must be remanded to West Virginia state court, the Court DENIES as
moot Plaintiffs’ motion to consolidate these actions into one case.
III.

Conclusion

For the foregoing reasons, the Court DENIES Plaintiffs’ motion to stay consideration of
Defendants’ motion to dismiss, GRANTS Plaintiffs’ motion to remand, DENIES Defendants’
motion to dismiss, and DENIES as moot Plaintiffs’ motion to consolidate.
The Court DIRECTS the Clerk to send a copy of this written Memorandum Opinion and
Order to counsel of record and any unrepresented parties.

ENTER:

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Thursday, March 31, 2016