ST. LOUIS — U.S. District Judge Stephen Limbaugh for a second time has granted plaintiffs' request to remand a proposed class action against Bayer over its birth control product, Essure, to state court.
In a ruling filed Sept. 27, Limbaugh, of the Eastern District of Missouri, held that the defendants' removal was not "procedurally proper" as it was not filed within 30 days of receiving the original state court complaint.
He was not persuaded by the arguments of Bayer attorneys who removed the case July 18 after the landmark ruling a month earlier in Bristol-Myers Squibb v. Superior Court of California. In that ruling, the U.S. Supreme Court held that a court cannot "exercise specific personal jurisdiction where a nonresident fails to show a connection between the nonresident's specific claim and the forum," Limbaugh wrote.
Bayer had argued that the Bristol-Myers Squibb decision triggered a new removal period.
"But Bristol-Myers is a separate case with different parties," he wrote.
In its second removal action, Bayer also cited a Missouri Supreme Court decision in State ex rel. Bayer Corp. v. Moriarty to support its position, "a ruling which issued a preliminary writ of prohibition, ordering a circuit court judge to show cause 'why a writ of prohibition should not issue prohibiting [her] from doing anything other than vacat[ing]' an order denying Bayer’s motion to dismiss," the order said.
And a third case that Bayer cited was Jordan v. Bayer in which Limbaugh found that the Bristol-Myers Squibb decision was dispositive of the specific jurisdiction issue in denying a plaintiffs’ motion to remand.
In those two cases, Limbaugh held that neither one formed the basis of an "order or other paper."
The case that Limbaugh remanded for a second time involves 94 plaintiffs from 26 different states and was originally filed Nov. 7, 2016.
After Bayer's first removal action, Limbaugh ruled that the plaintiffs had not fraudulently joined or fraudulently misjoined non-Missouri plaintiffs and remanded it.