We commented last week that we were not surprised by the numerous post-BMS personal jurisdiction decisions we were seeing. Lots of courts and parties around the country were watching and waiting for this one. So, let’s add some more. This time from another of plaintiffs’ favorite “magnet jurisdictions” – Missouri. Historically, product liability plaintiffs bringing pharmaceutical and medical device cases have flocked to Missouri (the City of St. Louis in particular) among other notoriously plaintiff-friendly venues as litigation tourists. They would file multi-plaintiff complaints against drug and device companies not located in Missouri, including at least 1 Missouri plaintiff – to tie the case to the state — and at least 1 plaintiff from defendant’s home state – to destroy diversity.
So, when defendants would remove these multi-plaintiff complaints, which we always do, we would have to argue misjoinder and simultaneously move to dismiss all of the out of state plaintiffs for lack of personal jurisdiction. Previously, pre-BMS, the Eastern District of Missouri was rather hostile to such removals. Swiftly remanding case after case for lack of subject matter jurisdiction, opting to completely skip the personal jurisdiction issue altogether. Apparently, BMS is changing that – which frankly, we expected. But now we have some decisions.
The complaints in Siegfried v. Boehringer Ingelheim Pharm., Inc., 2017 WL 2778107 (E.D. Mo. Jun. 27, 2017) and Jordan v. Bayer Corp., 2017 U.S. Dist. LEXIS 109206 (E.D. Mo. Jul. 14, 2017) look pretty much as described above. Each case had 94 plaintiffs, of which only a handful were residents of Missouri (8 in Siegfried and 7 in Jordan). The remaining plaintiffs were from different states all over the country, including the states where defendants are citizens. Siegfried at *1; Jordan at *1-2. At least 1 to get personal jurisdiction and at least 1 to defeat diversity.
As do most courts when faced with competing issues of subject matter and personal jurisdiction, these courts cited Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) for the proposition that the court has discretion to determine which to consider first. Siegfried at *2; Jordan at *5. While federalism usually tips the scales toward deciding subject matter jurisdiction first, where personal jurisdiction “turns on federal constitutional issues” and/or “judicial economy” concerns, personal jurisdiction can be prioritized. Jordan at *5. Put even more simply, post-BMS, “[p]ersonal jurisdiction is now the more straightforward inquiry.” Siegfried, at *3. That’s because BMS is “dispositive of the specific personal jurisdiction issue” regarding out-of-state plaintiffs suing an out-of-state defendant. Jordan at *9. Specific personal jurisdiction is lacking. Therefore, reasoned the Siegfried court
Remanding this case for lack of complete diversity, only to have the case removed again later once the non-Missouri plaintiffs are dismissed, would be a waste of judicial resources.
Siegfried at *2. After BMS, neither the Eastern District of Missouri nor the original Missouri state court can exercise personal jurisdiction over the non-residents, so why remand the case to reach the same conclusion. Siegfried at *5. It would be an unnecessary extra step.
Applying a “straightforward” BMS analysis, both courts dismissed all of the out of state plaintiffs with no connection to Missouri. Siegfried at *5 (“nonresident plaintiffs did not ingest the drug in the forum, nor do they claim to have suffered resulting injuries in the forum. The personal injuries of the non-Missouri plaintiffs have no connection with Missouri. They did not arise out of, or relate to, defendants’ activities in Missouri.”); Jordan at *10-11 (“the non-Missouri plaintiffs do not allege that they acquired the  device from a Missouri source or that they were injured or treated in Missouri . . . . And the general exercise of business activities in the state cannot create an adequate link between the claims and the Missouri forum.”). Because the dismissal of the non-Missouri plaintiffs negated any challenge to complete diversity, the motions to remand in both cases were denied. Siegfried at *5; Jordan at *11. Yet another post-BMS victory.