Judge rejects Bayer’s attempts to move Essure case to federal court

By Sam Knef | Dec 8, 2017

ST. LOUIS — U.S. District Judge Ronnie L. White is allowing plaintiffs suing Bayer HealthCare and others over the permanent birth control system Essure to remand their case filed on March 30 to St. Louis City Circuit Court. 

In an order dated Nov. 29, White held that there is not complete diversity in the claims brought by plaintiffs from 33 states, including Missouri, and therefore there is "no basis for fraudulent joinder."

Defendants had removed the case to federal court in the Eastern District of Missouri on May 18, on the basis of diversity jurisdiction and under the Class Action Fairness Act (CAFA).

The CAFA, passed in 2005, removes most class actions to federal court, when, for instance, the controversy exceeds $5 million and when the class comprises at least 100 plaintiffs, among other things.

In support of removing the case to federal court, defendants argued that they were not subject to personal jurisdiction with respect to non-Missouri plaintiffs.

Plaintiffs, on the other hand, argued in response that remand was appropriate because complete diversity did not exist and their claims were not fraudulently joined.  They also argued that removal under CAFA was not appropriate because the court could not consider pending petitions in other cases to be tried in conjunction and that the court could not aggregate those cases to create federal jurisdiction under CAFA.

White indicated that he agreed with a "long line of cases" in the circuit court that allowed plaintiffs to file separate cases, each containing fewer than 100 plaintiffs, to avoid removal as a mass action under CAFA.

"The Court holds that CAFA does not apply here and CAFA cannot form a basis for federal subject matter jurisdiction," White wrote.

White also held that defendants' argument that the plaintiffs' state law claims raise substantial federal questions because they were based on numerous alleged violations of federal requirements was "misplaced."

“Plaintiffs' claims for Federal Food, Drug, and Cosmetic Act (FDCA) violations related to Essure were necessary to escape preemption,” White wrote. “However, as courts in this district have noted that the ‘the federal issues raised by plaintiffs' state law claims are not capable of resolution in federal court without disrupting the federal-state balance approved by Congress.’"

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