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Feeley v. Bayer Corp.

United States District Court, S.D. Illinois

September 9, 2019

REGINA FEELEY, et al., Plaintiffs,



         Pending 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.

         Factual & Procedural Background

         According 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).

         Essure 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).

         Plaintiffs 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).

         The 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).

         On 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).

         On 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).

         Also on 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).

         Legal Standard

         Removal 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).

         Under 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).

         The 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)); Kalbfleisch ex rel. Kalbfleisch v. Columbia Community Unit School Dist. Unit No. 4, 644 ...

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