Hensley v. Forest Pharm., Inc.

• Decision Date: 14 May 2014
• Docket Number: Case No. 4:14CV00181 ERW.
• Citation: 21 F.Supp.3d 1030
• Parties: Kimberly HENSLEY, Individually and as Mother and Natural Guardian of K.H., a Minor, Plaintiff, v. FOREST PHARMACEUTICALS, INC., Forest Laboratories, Inc., and Smithkline Beecham Corp., d/b/a GlaxoSmithkline, and GlaxoSmithkline, LLC, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

21 F.Supp.3d 1030

Kimberly HENSLEY, Individually and as Mother and Natural Guardian of K.H., a Minor, Plaintiff
v.
FOREST PHARMACEUTICALS, INC., Forest Laboratories, Inc., and Smithkline Beecham Corp., d/b/a GlaxoSmithkline, and GlaxoSmithkline, LLC, Defendants.

Case No. 4:14CV00181 ERW.

United States District Court, E.D. Missouri, Eastern Division.

Signed May 14, 2014.

21 F.Supp.3d 1031

Sarah Shoemake Doles, Carey and Danis, Clayton, MO, for Plaintiff.

Sandra Jane Wunderlich, Stinson and Leonard LLP, G. Keith Phoenix, Andrew D. Ryan, Casey F. Wong, Sandberg Phoenix, P.C., St. Louis, MO, for Defendants.

21 F.Supp.3d 1032

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on Plaintiff's Motion to Remand [ECF No. 14].

I. BACKGROUND

On January 17, 2014, Plaintiff Kimberly Hensley, the natural mother of K.H., a minor, filed this action against defendants Forest Pharmaceuticals, Inc. (“Forest Pharmaceuticals”), Forest Laboratories, Inc. (“Forest Laboratories”), and GlaxoSmithKline, LLC, formerly Smith Kline Beecham Corporation, d/b/a GlaxoSmith Kline (“GSK LLC”), in the Circuit Court for the Twenty–First Judicial Circuit, St. Louis County, Missouri [ECF Nos. 1, 1–1, 4]. Plaintiff and K.H. are citizens and residents of Indiana. At all times relevant to this matter, GSK LLC, a limited liability company with sole Delaware citizenship, designed, manufactured, marketed, and distributed the prescription drug Paxil. Forest Laboratories, a corporation with citizenship in Delaware and New York, and Forest Pharmaceuticals, a corporation with citizenship in Delaware and Missouri (Forest Laboratories and Forest Pharmaceuticals collectively referred to as “Forest Defendants”), designed, manufactured, marketed, and distributed the prescription drug Lexapro. In her Complaint, Plaintiff alleges that K.H. was born with various congenital birth defects caused by Plaintiff's ingestion of Lexapro and Paxil during her pregnancy. Plaintiff brings her action to recover medical and other expenses related to treatment for birth defects and other related illnesses suffered by K.H.; she also seeks punitive damages for the injuries suffered as a direct result of her ingestion of Lexapro and Paxil during her pregnancy with K.H.

GSK LLC obtained a copy of Plaintiff's state court pleading through its counsel on January 28, 2014. On January 31, 2014, before service was effected on any of the defendants, GSK LLC filed a Notice of Removal in this Court [ECF No. 1]. In its Notice of Removal, GSK LLC asserted that, because none of the named defendants had been served with a copy of Plaintiff's pleading, the notice was timely, and removal did not require Forest Defendants' consent [ECF No. 1 at 2]. GSK LLC further asserted the Court had original subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332, and the matter could be removed to this Court under 28 U.S.C. § 1441, because there is complete diversity of citizenship between Plaintiff and defendants, and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. GSK LLC contended 28 U.S.C. § 1441(b)(2)'s “forum-defendant rule” did not preclude removal because the Missouri defendant, Forest Pharmaceuticals, had not been served as of the filing of the removal.

On February 18, 2014, GSK LLC filed a Motion to Dismiss Plaintiff's pleading pursuant to Federal Rules of Civil Procedure 8(a)(2), 12(b)(6), and 9(b) [ECF No. 12]. Plaintiff filed the present Motion to Remand on February 24, 2014 [ECF No. 14]. Plaintiff also filed “Plaintiff's Agreed Motion to Stay Briefing on and Consideration of Defendants' Motion to Dismiss” on February 25, 2014 [ECF No. 16]. In the Agreed Motion, Plaintiff informed the Court she and GSK LLC had conferred, and had agreed to a proposed briefing schedule on GSK LLC's motion to dismiss; and she requested an Order staying any further briefing and deferring consideration of the motion until the Court ruled on the present Motion to Remand. The Court granted the Agreed Motion on February 26, 2014 [ECF No. 17]. GSK LLC

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filed its Opposition to Plaintiff's Motion to Remand on March 6, and Plaintiff filed her Reply on March 14, 2014 [ECF Nos. 18, 23]. On March 7, 2014, Plaintiff filed a Return of Service of Summons and Complaint for each named defendant [ECF Nos. 19–22]. Forest Defendants subsequently filed their Answers to Plaintiff's Complaint [ECF Nos. 27, 28].

II. STANDARD FOR FEDERAL COURT JURISDICTION

“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). If a federal court takes action in a dispute over which it lacks subject matter jurisdiction, that action is a nullity. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17–18, 71 S.Ct. 534, 95 L.Ed. 702 (1951). However, “ ‘[f]ederal courts have a virtually unflagging obligation ... to exercise the jurisdiction given them.’ ” Barzilay v. Barzilay, 536 F.3d 844, 849 (8th Cir.2008) (alteration in original) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) ).

A claim may be removed to federal court only if it could have been brought in federal court originally; thus, the diversity and amount in controversy requirements of 28 U.S.C. § 1332 must be met, or the claim must be based upon a federal question pursuant to 28 U.S.C. § 1331. Peters v. Union Pac. R.R. Co., 80 F.3d 257, 260 (8th Cir.1996). The party invoking jurisdiction bears the burden of proof that the prerequisites to jurisdiction are satisfied. Green v. Ameritrade, Inc., 279 F.3d 590, 595 (8th Cir.2002).

Removal statutes must be strictly construed because they impede upon states' rights to resolve controversies in their own courts. Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir.2002). Although a defendant has a statutory right to remove when jurisdiction is proper, the...