JOHN A. ROSS, District Judge.
This is one of several cases filed in the Circuit Court of the City of St. Louis, Missouri, against Defendants Bayer Corporation, Bayer Healthcare LLC, Bayer Essure, Inc., Bayer Healthcare Pharmaceuticals, Inc., and Bayer A.G. (collectively "Bayer") seeking damages for injuries resulting from the use of the contraceptive device Essure, and removed to this district. Courts in this district have universally remanded these cases to the state court.
Plaintiffs filed their action on February 25, 2017, seeking damages for injuries sustained as a result of the implantation and use of Essure, a contraceptive device manufactured by Bayer. Plaintiffs bring state law claims for Negligence, Negligence Per Se, Negligent Misrepresentation, Failure to Warn, Manufacturing Defect, Common Law Fraud, Constructive Fraud, Fraudulent Concealment, Breach of Express Warranty, Breach of Implied Warranty, Violation of Missouri Products Liability laws, Violation of Missouri Merchandising Practices Act, and Gross Negligence/Punitive Damages.
As support for their state law claims, Plaintiffs allege, in relevant part, that Bayer violated provisions of the Federal Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. § 301 et seq., and related provisions of the Code of Federal Regulations ("CFR"). The 99 Plaintiffs reside in multiple states, including Missouri, Indiana, Pennsylvania, and New Jersey. Defendant Bayer Corporation is a citizen of Indiana, where it is incorporated, and Pennsylvania, where it has its principal place of business
On April 14, 2017, Bayer removed the action to this Court on the basis of diversity jurisdiction, 28 U.S.C. § 1332, federal question jurisdiction, 28 U.S.C. §§ 1331, 1441, 1446, and mass action jurisdiction pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). Despite the lack of complete diversity on the face of the complaint, Bayer contends there is complete diversity if the Court ignores the citizenship of the non-diverse Plaintiffs who, Bayer asserts, were fraudulently joined or fraudulently misjoined. Bayer further argues the Court should dismiss the claims of the non-Missouri Plaintiffs for lack of personal jurisdiction or, alternatively, under the doctrine of forum non conveniens.
Plaintiffs move to remand the case to state court, arguing that the Court should address subject matter jurisdiction before personal jurisdiction and remand for lack of subject matter jurisdiction because complete diversity does not exist and because their claims are not fraudulently joined. Plaintiffs further argue that CAFA does not confer the Court with diversity jurisdiction because in order to propose a joint trial under CAFA, 100 or more plaintiffs must be joined in a single complaint or move to consolidate multiple complaints. Plaintiffs contend that neither has occurred, thereby barring jurisdiction under CAFA. Furthermore, Plaintiffs argue that no federal question arises from their complaint.
An action is removable to federal court if the claims originally could have been filed in federal court. 28 U.S.C. § 1441;
Bayer contends the Court can and should consider the threshold issue of personal jurisdiction before determining whether the Court has subject matter jurisdiction over this case. In similar Essure device cases, judges in this district have consistently resolved the subjectmatter jurisdiction issues first, upon concluding that personal jurisdiction issues require a more fact-intensive inquiry than the straightforward issue of subject-matter jurisdiction.
Bayer also urges the Court to consider forum non conveniens issues prior to subjectmatter jurisdiction issues, because dismissing the non-Missouri Plaintiffs' claims on forum non conveniens grounds would leave only completely diverse parties before the Court. Bayer argues that each non-Missouri Plaintiff has an adequate alternative forum in her home state. Because the subject-matter jurisdiction issues are not arduous or difficult, the Court declines to resolve issues of forum non conveniens prior to subject-matter jurisdiction issues.
The Court will consider each of the bases for federal subject matter jurisdiction asserted in Bayer's Notice of Removal.
Removal in this case was premised on diversity jurisdiction, which requires an amount in controversy greater than $75,000 and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). "Complete diversity of citizenship exists where no defendant holds citizenship in the same state where any plaintiff holds citizenship."
"Courts have long recognized fraudulent joinder as an exception to the complete diversity rule."
The Eighth Circuit has not yet determined whether fraudulent misjoinder is a valid basis for removal.
The Eighth Circuit declined to either adopt or reject the fraudulent misjoinder doctrine, holding that "even if we adopted the doctrine, the plaintiffs' alleged misjoinder in this case is not so egregious as to constitute fraudulent misjoinder."
Courts in this district have relied on
In addition, to the extent Bayer contends that fraudulent joinder exists because the non-Missouri Plaintiffs cannot subject Bayer to general or specific personal jurisdiction in Missouri, the Court notes that in this district, courts have repeatedly held that an alleged lack of personal jurisdiction does not establish fraudulent joinder.
In the notice of removal, Bayer also invokes federal question jurisdiction pursuant to 28 U.S.C. § 1331, asserting that Plaintiffs' claims depend on the resolution of a substantial, disputed federal question and that the exercise of jurisdiction will not disrupt the balance between federal and state jurisdiction adopted by Congress. Bayer argues the Court has federal question jurisdiction because Plaintiffs' state law claims turn on whether Bayer violated federal regulatory requirements and the federal law questions do not arise only in the context of a preemption defense. Plaintiffs respond that there is no private federal cause of action for violations of the FDCA and that violations of the FDCA alleged as part of a state cause of action are not sufficiently "substantial" to support federal question jurisdiction.
In other Essure cases removed to this district, this Court has consistently rejected Bayer's federal question jurisdiction argument.
Finally, Bayer argues that federal jurisdiction is proper under CAFA. Under CAFA's "mass action" jurisdictional provision, federal courts have jurisdiction over certain civil actions "in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs' claims involve common questions of law or fact...." 28 U.S.C. § 1332(d)(11)(B)(i). Although this case involves only ninety-nine plaintiffs, Bayer argues that this case should be considered along with other similar Essure cases filed in this district to form a single mass action involving more than 100 plaintiffs. It argues that these cases are part of the same mass action because these complaints contain the same substantive allegations, allege the same causes of action, were filed by the same counsel, and were filed in the same jurisdiction. Bayer argues that Plaintiffs cannot avoid removal under CAFA by artificially separating their plaintiffs into groups of fewer than 100 plaintiffs.
However, the instant case does not involve the claims of 100 or more persons, and there is no indication in the record that this case will be consolidated or that Plaintiffs wish to have this case tried jointly with any other cases. The fact that there is nothing in the record to suggest that Plaintiffs here have made any attempt to consolidate this case with any other Essure cases against Bayer distinguishes this case from the Eighth Circuit's decision in
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Furthermore, Bayer's argument has been repeatedly rejected by courts in this district.
For these reasons, the Court concludes that it lacks subject matter jurisdiction over this case. This conclusion is supported by the well-reasoned opinions of other courts in this district, rejecting substantially similar arguments raised by Bayer in attempts to remove cases involving the Essure device to federal court. The Court will, therefore, grant Plaintiffs' motion to remand. Any remaining questions about personal jurisdiction or improper joinder may be addressed by the state court.
Accordingly,