United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon Judge.
before the Court is plaintiffs' motion to remand (Doc.
15). Naturally, defendants oppose the motion (Doc. 22). Based
on the applicable case law and the record, the Court grants
the motion to remand for lack of subject matter jurisdiction.
March 16, 2017, plaintiffs LeRoy Pirtle and Evelyn Forester
filed a ninety count complaint against Janssen Research &
Development, LLC; Janssen Ortho LLC; Janssen Pharmaceuticals,
Inc.; Bayer HeatlhCare Pharmaceuticals Inc.; Bayer Pharma AG;
Bayer Corporation; Bayer HealthCare, LLC; Bayer HealthCare
AG; and Bayer AG in the St. Clair County, Illinois Circuit
Court (Doc. 1-1). Plaintiffs seek damages for personal
injuries and economic damages suffered as a result of a
defective and dangerous pharmaceutical product, Xarelto
(rivaroxaban), which was designed, researched, developed,
manufactured, tested, labeled, advertised, marketed,
promoted, distributed and sold by defendants and
defendants' representatives. Plaintiffs allege that they
experienced “serious and dangerous side effects,
” including “life-threatening bleeding, ”
that led to “permanent and lasting” “severe
and personal injuries” due to the ingestion of Xarelto.
April 28, 2017, defendants removed the case to this Court
based on diversity jurisdiction, 28 U.S.C. § §
1332, 1441 and 1446 (Doc. 1). That same date, defendants also
removed four other cases based on the same allegations
contained in this complaint and filed by the same lawyers as
plaintiffs' lawyers. See Woodall, et al., v. Janssen
Research & Development, LCC, et al., 17-0441-DRH;
Bandy, et al., v. Janssen Research & Development,
LLC, et al., 17-0440-DRH; Douthit, et al., v.
Janssen Research & Development, LLC, et al.,
17-0439-DRH and Braun, et al., v. Janssen Research &
Development, LLC, et al., 17-0443-DRH. On May 2, 2017,
the Court allowed defendants up to and including June 5, 2017
to respond/answer the complaint (Doc. 8). On May 3, 2017,
defendants moved to stay this matter pending its likely
transfer to the In re Xarelto (Rivaroxaban) Products
Liability Litigation MDL No. 2592 (Doc. 12) and the
Court granted the same (Doc. 14).
the entry of the stay Order, plaintiffs filed a motion to
remand on May 3, 2017 (Doc. 15). Plaintiffs maintain that the
Court lacks subject matter jurisdiction as there is no
diversity jurisdiction because it is uncontested that
plaintiff Forester and multiple defendants, Janssen Research
& Development, LLC, Janssen Pharmaceuticals, Inc., Bayer
HeatlhCare Pharmaceuticals, Inc., and Bayer HeatlhCare, LLC,
all are citizens of the state of New Jersey. In light of the
remand motion, the Court, on May 4, 2017, entered the
Assuming this case was a run-of-mill tag along case and,
therefore, a stay would be non-controversial, the Court
granted the stay in this case as a matter of course. As it
turns out, plaintiff's counsel on the same day the motion
for a stay was filed, but subsequent thereto, filed a motion
to remand contesting subject matter jurisdiction on the basis
of a lack of diversity. Therefore, the stay that is in place
will not apply to the issue surrounding the remand motion.
The defendants are directed to file responses to said motion
no later than May 19, 2017. It is quite likely that Judge
Fallon has more than enough on his docket and does not need
five remand motions to deal with. However, if the MDL judge
already has a "standardized" order in place on this
issue, defendants should feel free to advise this Court of
that fact in their responses. Further, the JPML has now filed
a CTO for transfer of this case to the MDL. Of course, a CTO
does not prevent this Court from ruling on pending motions
until said transfer is finalized. Parties should proceed on
the schedule set out heretofore unless they consent to have
the motion heard by Judge Fallon. However, the undersigned
judge will not expedite this matter in order to rush so that
an order can be issued prior to a final transfer order. The
pending matter will be handled in the ordinary course of
court business unaffected by the timing of the Panel's
handling of the tag along issues associated with whether or
not to transfer this case to the MDL.
(Doc. 20). On May 19, 2017, defendants filed their opposition
to the motion to remand motion (Doc. 22). Defendants argue
this lawsuit is really two distinct cases filed by citizens
of Illinois and New Jersey and that this is an attempt to
defeat defendants' removal rights, to avoid the
jurisdiction of this Court and to improperly prevent its
transfer to MDL No. 2592. Specifically, defendants maintain
that this Court lacks personal jurisdiction over defendants
with regard to Forester's claims and that with her claims
dismissed the Court has subject matter jurisdiction via
diversity jurisdiction over Pirtle's claims as Pirtle is
a citizen of Illinois. As the motion to remand is ripe, the
Court turns to address the merits of the
action may be removed to federal court if the district court
has original jurisdiction. 28 U.S.C. § 1441. Courts have
original jurisdiction of civil actions if there is complete
diversity between the parties and the amount in controversy
exceeds $75, 000, exclusive of interest and costs. Complete
diversity means that “none of the parties on either
side of the litigation may be a citizen of the state of which
a party on the other side is a citizen.” Howell v.
Tribune Entertainment Co., 106 F.3d 215, 217
(7th Cir. 1997) (citations omitted). The removal statute is
construed narrowly and any doubts regarding jurisdiction are
resolved in favor of remand. Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); Doe
v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir.
1993). If the district court lacks subject matter
jurisdiction, the action must be remanded to state court
pursuant to 28 U.S.C. § 1447(c). The burden of
establishing federal jurisdiction falls on the party seeking
removal. Doe, 985 F.2d at 911.
there is no dispute that plaintiff Forester and defendants
Janssen Research & Development, LLC, Janssen
Pharmaceuticals, Inc., Bayer HeatlhCare Pharmaceuticals,
Inc., and Bayer HeatlhCare, LLC, all are citizens of the
state of New Jersey. Thus, complete diversity does not exist on
the face of the complaint. Rather, defendants contend that
out-of-state plaintiff Forester's claims should be
dismissed for lack of personal jurisdiction in that Forester
was improperly joined with Pirtle's claims to defeat
diversity jurisdiction. This doctrine is called
“procedural misjoinder, ” also known as
“fraudulent misjoinder, ” and was first
recognized in Tapscott v. MS Dealer Serv.
Corp.¸77 F.3d 1352, 1360 (11th Cir. 1996). This
doctrine has been rejected repeatedly by this Court and
several other District Judges in this Judicial District.
See Sabo v. Dennis Techs., LLC, 2007 WL 1958591
(S.D. Ill. July 2, 2007)(Herndon, J.); In re Yasmin and
Yaz (Drospirenone) Marketing, Sales Practices and Products
Liability Litigation, 779 F.Supp.2d 846, 853 (S.D. Ill.
2011) (Herndon, C.J.); Abel v. SmithKline Beecham
Corp., 2013 WL 5835404 (S.D. Ill. October 30, 2013)
(Herndon, C.J.)(compiling cases and reaffirming the
Court's previous decisions on fraudulent misjoinder);
In re Pradaxa (Dabigatran Etexilate) Products Liability
Litigation, 2014 WL 257831 (S.D. Ill. January 23, 2014)
(Herndon, C.J.); See e.g. Rutherford v. Merck Co.,
428 F.Supp.2d 842, 851 (S.D. Ill. 2006) (Murphy, J.);
Aranda v. Walgreen Co., 2011 WL 3793648 (S.D. Ill.
Aug. 24, 2011) (Gilbert, J.); Rios v. Bayer Corporation,
et al., 2016 WL 5929246 (S.D. Ill. October 12, 2016)
joinder, which the Seventh Circuit has recognized,
“occurs either when there is no possibility that a
plaintiff can state a cause of action against nondiverse
defendants in state court, or where there has been outright
fraud in the pleading.” See Gottlieb v. Westin
Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). “In
determining whether there is diversity of citizenship,
fraudulently joined parties are disregarded.”
Id. In contrast, procedural misjoinder, which the
Seventh Circuit has not had occasion to discuss, typically
invokes a defendant's argument that a plaintiff's
complaint has egregiously misjoined unrelated, non-fraudulent
claims of nondiverse plaintiffs, in an attempt to avoid
federal court. See Tapscott, 77 F.3d at 1360. Thus,
the doctrine of procedural misjoinder requires a court to
evaluate the applicable permissive joinder rules.
Court has discussed extensively its reasoning in respectfully
declining to recognize the doctrine of procedural misjoinder.
See Sabo, 2007 WL 1958591 at *6-8; In re
Yasmin, 779 F.Supp.2d at 853-857; Abel Corp.,
2013 WL. 5835404 at * 2; In re Pradaxa, 2014 WL
257831 at *2-3. Based on the above, the Court clearly does
not have diversity jurisdiction over plaintiffs'
complaint. Further, the Court need not determine the
existence of personal jurisdiction. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 587-88, 119 S.Ct. 1563,
143 L.E.2d 760 (1999)(stating that if subject matter
jurisdiction involves “no arduous inquiry, ” then
“both expedition and sensitivity to state courts'
coequal stature should impel the federal court to dispose of
that issue first”).
Accordingly, the Court GRANTS the motion to remand (Doc. 15).
As the Court lacks subject matter jurisdiction, the Court,
pursuant to 28 U.S.C. § 1447(c), REMANDS this ...