United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
before the Court is a Motion to Remand (Doc. 8) filed by
Plaintiffs, a Motion to Dismiss (Doc. 9) filed by Defendants,
and a Motion to Sever filed by Defendants (Doc. 12). For the
reasons set forth below, the Court grants the Motion to
Remand, denies as moot the Motion to Dismiss, and denies as
moot the Motion to Sever.
& Procedural Background
to the Complaint, Defendants Bayer Corporation, Bayer
Healthcare LLC, Bayer Essure, Inc., and Bayer Healthcare
Pharmaceuticals, Inc. (collectively “Defendants”)
manufactured, marketed, promoted, distributed and sold a
medical device called Essure (Doc. 1-1, p. 12). Essure was
marketed as a form of permanent female birth control that was
safer and more effective than alternative forms of birth
control (Id.). The device was developed to prevent
pregnancy through the insertion of micro-inserts into the
fallopian tubes that then expand and anchor, causing fibrous
tissue growth and, in turn, bilateral occlusion (blockage) of
the fallopian tubes (Id.). The device was intended
to be implanted for each patient's lifetime (Id.
at p. 13).
is a Class III medical device that received
“Conditional Premarket Approval” from the Food
and Drug Administration (“FDA”) before it was
marketed to the public (Doc. 1-1, p. 15-16). The Complaint
alleges that the Essure device would “deform, crack,
fracture, or break” leading to personal injuries in
patients, including Plaintiffs (Id. at p. 31-32).
are composed of seventeen women from Illinois and one from
Indiana who suffered health issues and unintended pregnancies
stemming from their use of Essure (Doc. 1-1, p. 8-9,
¶13-30). Specifically, they bring claims of negligence,
strict products liability, breach of express warranty, breach
of implied warranty, and fraud (Doc. 1-1).
case was initially filed in Madison County state court on
October 17, 2018 (Doc. 1-1, p. 2). On November 16, 2018,
Defendants removed the case to this Court, asserting that
removal is proper because the Court has jurisdiction over the
case pursuant to 28 U.S.C. §§ 1331, 1332(a) and
1441 (Doc. 1-1, p. 1). The Amended Notice of Removal alleges
that Plaintiff Kelli Payne is a citizen of the state of
Indiana (Doc. 27, p. 2). Defendants acknowledge that Ms.
Payne is a citizen of Indiana, and her citizenship destroys
diversity, but assert that Ms. Payne was fraudulently joined
and procedurally misjoined as a plaintiff in an effort to
defeat federal diversity jurisdiction (Doc. 27, p. 2).
November 21, 2018, Plaintiffs moved to remand the case on the
basis that Ms. Payne's presence in this case destroys
diversity and federal question jurisdiction does not exist
(Doc. 8). Plaintiffs specifically argue that Ms. Payne has
not been fraudulently joined or procedurally misjoined.
Plaintiffs also argue that federal question jurisdiction
pursuant to 28 U.S.C. §§ 1331 and 1441 does not
exist because there is no federal remedy for a violation of
the Federal Food, Drug, and Cosmetic Act, and a federal
preemption defense does not establish federal question
jurisdiction. On December 21, 2018, Defendants filed a
response in opposition to Plaintiffs' motion to remand
(Doc. 16). Plaintiffs filed a timely reply brief (Doc. 20).
November 23, 2018, Defendants moved to dismiss the case on
the basis that Plaintiff's claims are preempted by
federal law, they fail to plausibly plead a claim for relief,
and they are time-barred (Docs. 9 and 10). On January 2,
2019, Plaintiffs filed a response in opposition to
Defendants' motion to dismiss (Doc. 17). Defendants filed
a timely reply brief (Doc. 25).
November 23, 2018, Defendants moved to sever Plaintiffs'
claims on the basis that they are misjoined under Federal
Rule of Civil Procedure 20 (Docs. 12 and 13). On January 2,
2019, Plaintiffs filed a response in opposition to Defendants
motion to sever (Doc. 18). A week later, Defendants filed a
reply brief (Doc. 22).
is governed by 28 U.S.C. § 1441, which provides, in
pertinent part, that “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant
or the defendants, to the district court of the United States
for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a); see
also Pooter v. Janus Inv. Fund, 483 F.Supp.2d 692,
694-95 (S.D. Ill. 2007). Under 28 U.S.C. § 1332, a
federal district court has original subject matter
jurisdiction over actions involving complete diversity
between the parties plus an amount in controversy exceeding
$75, 000, exclusive of interest and costs. See 28
U.S.C. § 1332(a)(1); LM Ins. Corp. v. Spaulding
Enters. Inc., 533 F.3d 542, 547 (7th Cir. 2008).
Complete diversity means that “none of the parties on
either side of the litigation may be a citizen of a 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).
28 U.S.C. § 1331, a federal district court also has
original jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United
States.” Federal courts may only exercise jurisdiction
under § 1331 if “a well-pleaded complaint
establishes either that federal law creates the cause of
action or that the plaintiff's right to relief
necessarily depends on resolution of a substantial question
of federal law.” Empire Healthchoice Assur., Inc.
v. McVeigh, 547 U.S. 677, 690 (2006).
party seeking removal, as the proponent of federal subject
matter jurisdiction, has the burden of proof as to the
existence of such jurisdiction. See Meridian Sec. Ins.
Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006);
see also Anglin v. Bristol-Myers Squibb Co., No.
12-60, 2012 WL 1268143, at *1 (S.D. Ill. Apr. 13, 2012).
“'Courts should interpret the removal statute
narrowly and presume that the plaintiff may choose his or her
forum.' Put another way, there is a strong presumption in
favor of remand.” Fuller v. BNSF Ry. Co., 472
F.Supp.2d 1088, 1091 (S.D. Ill. 2007) (quoting Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993));
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