MEMORANDUM and ORDER
DAVID R. HERNDON, District Judge.
Introduction and background
Pending before the Court is plaintiffs' motion to remand (Docs. 16 & 17). Naturally, defendants oppose the motion (Doc. 22). Based on the applicable case law and the record, the Court grants the motion to remand for lack of subject matter jurisdiction.
On March 16, 2017, plaintiffs Francis Bandy and Barry Schultz filed a ninety count complaint against Janssen Research & Development, LLC; Janssen Ortho LLC; Janssen Pharmaceuticals, Inc.; Bayer HealthCare Pharmaceuticals Inc.; Bayer Pharma AG; Bayer Corporation; Bayer HealthCare, LLC; Bayer HealthCare AG; and Bayer AG in the Madison County, Illinois Circuit Court (Doc. 1-1). Plaintiffs seek damages for personal injuries and economic damages suffered as a result of a defective and dangerous pharmaceutical product, Xarelto (rivaroxaban), which was designed, researched, developed, manufactured, tested, labeled, advertised, marketed, promoted, distributed and sold by defendants and defendants' representatives. Plaintiffs allege that they experienced "serious and dangerous side effects," including "life-threatening bleeding," that led to "permanent and lasting" "severe and personal injuries" due to the ingestion of Xarelto.
On April 28, 2017, defendants removed the case to this Court based on diversity jurisdiction, 28 U.S.C. § § 1332, 1441 and 1446 (Doc. 1). That same date, defendants also removed four other cases based on the same allegations contained in this complaint and filed by the same lawyers as plaintiffs' lawyers. See Douthit, et al., v. Janssen Research & Development, LCC, et al., 17-0439-DRH; Woodall, et al., v. Janssen Research & Development, LLC, et al., 17-0441-DRH; Pirtle, et al., v. Janssen Research & Development, LLC, et al., 17-0442-DRH and Braun, et al., v. Janssen Research & Development, LLC, et al., 17-0443-DRH.
Despite the entry of the stay Order, plaintiffs filed a motion to remand on May 3, 2017 (Docs. 16 & 17). Plaintiffs maintain that the Court lacks subject matter jurisdiction as there is no diversity jurisdiction because it is uncontested that plaintiffs Schultz and Barnes, and multiple defendants, Janssen Research & Development, LLC, Janssen Pharmaceuticals, Inc., Bayer HeatlhCare Pharmaceuticals, Inc., and Bayer HeatlhCare, LLC, all are citizens of the state of New Jersey. In light of the remand motion, the Court, on May 5, 2019, entered the following Order:
(Doc. 21). On May 19, 2017, defendants filed their opposition to the motion to remand motion (Doc. 22). Defendants argue this lawsuit is really four distinct cases filed by citizens of Illinois, New Jersey and Louisiana and that this is an attempt to defeat defendants' removal rights, to avoid the jurisdiction of this Court and to improperly prevent its transfer to MDL No. 2592. Specifically, defendants argue that plaintiffs have sought to defeat defendants' right to removal by joining together one Illinois plaintiff with two New Jersey resident plaintiffs, who are a citizen of the same state as some of the defendants named in this case, and a Louisiana resident plaintiff. Specifically, defendants maintain that this Court lacks personal jurisdiction in Illinois over the claims of the New Jersey or Louisiana residents who used Xarelto in New Jersey and Louisiana, respectively, and whose claims do not arise out of the defendants' conduct in Illinois. Defendants go on to argue that the joinder of these four plaintiffs to prevent this Court from exercising diversity jurisdiction over the claims of the Illinois plaintiff is clearly improper. As the motion to remand is ripe, the Court turns to address the merits of the motion.
A civil action may be removed to federal court if the district court has original jurisdiction. 28 U.S.C. § 1441. Courts have original jurisdiction of civil actions if there is complete diversity between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the 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). The removal statute is construed narrowly and any doubts regarding jurisdiction are resolved in favor of remand. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). If the district court lacks subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c). The burden of establishing federal jurisdiction falls on the party seeking removal. Doe, 985 F.2d at 911.
Here, there is no dispute that plaintiffs Schultz and Barnes and defendants Janssen Research & Development, LLC, Janssen Pharmaceuticals, Inc., Bayer HeatlhCare Pharmaceuticals, Inc., and Bayer HeatlhCare, LLC, all are citizens of the state of New Jersey.
This doctrine is called "procedural misjoinder," also known as "fraudulent misjoinder," and was first recognized in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1352, 1360 (11th Cir. 1996). This doctrine has been rejected repeatedly by this Court and several other District Judges in this Judicial District. See Sabo v. Dennis Techs., LLC, 2007 WL 1958591 (S.D. Ill. July 2, 2007)(Herndon, J.); In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, 779 F.Supp.2d 846, 853 (S.D. Ill. 2011) (Herndon, C.J.); Abel v. SmithKline Beecham Corp., 2013 WL 5835404 (S.D. Ill. October 30, 2013) (Herndon, C.J.)(compiling cases and reaffirming the Court's previous decisions on fraudulent misjoinder); In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2014 WL 257831 (S.D. Ill. January 23, 2014) (Herndon, C.J.); See e.g. Rutherford v. Merck Co., 428 F.Supp.2d 842, 851 (S.D. Ill. 2006) (Murphy, J.); Aranda v. Walgreen Co., 2011 WL 3793648 (S.D. Ill. Aug. 24, 2011) (Gilbert, J.); Rios v. Bayer Corporation, et al., 2016 WL 5929246 (S.D. Ill. October 12, 2016) (Yandle, J.).
Fraudulent joinder, which the Seventh Circuit has recognized, "occurs either when there is no possibility that a plaintiff can state a cause of action against nondiverse defendants in state court, or where there has been outright fraud in the pleading." See Gottlieb v. Westin Hotel Co., 990 F.2d 323, 327 (7th Cir.1993). "In determining whether there is diversity of citizenship, fraudulently joined parties are disregarded." Id. In contrast, procedural misjoinder, which the Seventh Circuit has not had occasion to discuss, typically invokes a defendant's argument that a plaintiff's complaint has egregiously misjoined unrelated, non-fraudulent claims of nondiverse plaintiffs, in an attempt to avoid federal court. See Tapscott, 77 F.3d at 1360. Thus, the doctrine of procedural misjoinder requires a court to evaluate the applicable permissive joinder rules.
This Court has discussed extensively its reasoning in respectfully declining to recognize the doctrine of procedural misjoinder. See Sabo, 2007 WL 1958591 at *6-8; In re Yasmin, 779 F.Supp.2d at 853-857; Abel Corp., 2013 WL. 5835404 at * 2; In re Pradaxa, 2014 WL 257831 at *2-3. Based on the above, the Court clearly does not have diversity jurisdiction over plaintiffs' complaint. Further, the Court need not determine the existence of personal jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88, 119 S.Ct. 1563, 143 S.W.2d 760 (1999)(stating that if subject matter jurisdiction involves "no arduous inquiry," then "both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first").
Accordingly, the Court