United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1205

___________

In re: Prempro Products Liability *

Litigation, *

--------------------------------------- *

*

Sandra Kirkland; Patricia Lawton- *

Wilson; Monica Lee; Katherine *

Maiello; Dorothy Mallette; Nola *

McAdoo; Lillian Meeks; Brenda *

Nicholson; Joanne Nickel; Barbara *

Norvell; Reva Orr; Regina Parker; * Appeals from the United States

April Patterson; Kathleen Perkinson; * District Court for the

Donna Peters; Joanne Peterson; Mary * Eastern District of Arkansas.

Phillips; Viola Plieseis; Joyce *

Podhayski; Kathleen Preston; Lydia *

Ross; Diane Simon; Ruth Sitzmann; *

Mary Sorenson; Flora Spencer; Sue *

Standriff; Patricia Stone; Tena *

Valentine; Diana Walters; Marion *

Walters; Judy Wegenast; Charlene *

Weinmann; Helen Whaley; Marilyn *

Will; Francine Wixen; Joyce Wood, *

*

Plaintiffs-Appellants, *

*

Joyce Yonushewski, *

*

Plaintiff, *

*

Phyllis Goode; Carol Haney; Patricia *

Kruse; Sally Laufketter; Ann Moran; *

Judith Petersen; Patricia Rogers; Jewell *

Tolkin; Donna Wheeler; Charlene *
McComas; Muriel Pitsinger; Ruby *

Robbins; Mary Steele; Donna Taube; *

Joyce Waugh; Alba Cordon; Bertha *

Watcher; Joan Thompson, *

*

Plaintiffs-Appellants, *

*

Nancy States; Anna Soloman, *

*

Plaintiffs, *

*

v. *

*

Wyeth, and its divisions; Wyeth *

Pharmaceuticals, Inc.; ESI Lederle; *

Pfizer, Inc.; Pharmacia & Upjohn *

Company; Pharmacia Corporation; *

Barr Laboratories, Inc.; Mead *

Johnson & Company; Solvay *

Pharmaceuticals; Novartis *

Pharmaceuticals Corporation; Watson *

Laboratories, Inc.; Greenstone Ltd.; *

Does 1-10, *

*

Defendants-Appellees. *

___________

No. 09-1250

___________

In re: Prempro Products Liability *

Litigation, *

--------------------------------------- *

*

*

Rick Jasperson, as Trustee for Next-of- *

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Kin Decedents Gail Gilliam, Marcia *

Kunkel, Elizabeth Roszak, Mary Solis, *

Bea Zissel a/k/a Phyllis Bea Zissel, *

*

Plainiff-Appellant, *

*

v. *

*

Wyeth, and its divisions; Wyeth *

Pharmaceuticals, Inc.; ESI Lederle; *

Pfizer, Inc.; Pharmacia & Upjohn *

Company; Pharmacia Corporation; *

Does 1-10, *

*

Defendants-Appellees. *

___________

No. 09-1373

___________

Dorothy Allen; Judith Allen; Loretta *

Andrews; Janet Arbogast; Karen *

Awald; Carol Bannerman; Phyllis *

Barnes; Joanne Barrett; Joanne Black; *

Mary Bowden; Hazel Burgess; Joyce *

Burpee; Virginia Campbell; Adrianne *

Carrera; Lois Carter; Margaret *

Chamness; Mary Chrisco; Peggy *

Clemons; Sally Collins; Barbara *

Couch; Mary Dawson; Lois Duffy; *

Linda Eells; Frances Farr; Marjorie *

Flaman; Margaret Foltz; Wanda Foltz; *

Delois Foster; Jo Garrison O’Neil; *

Sharon Haemker; Margaret Harris; *

Louise Hess; Wanda Hinceman; Alice *

Holtzman; Rita Hren; Nancy Hunter; *

-3-
Yvonne Hutchinson; Glenda Ivey; *

Doris Jerome; Grace Kiger; Patsy *

Anderson; Juanita Brouwer; Nata *

Cargan; Nancy Jo Carter; Jan Costa *

Rydjeske; Wilma Cowart; Patricia *

Fernau; Isabel Fragoso; Doris Gist; *

Helen Penny Aros, *

*

Plaintiffs-Appellants, *

*

Patricia Brunner, *

*

Plaintiff, *

*

Joan Casto; Marian Conner; Janet *

Edwards; Wilma Faulkner; Nancy *

Katte; Nan Maury; Betty Bethea, *

*

Plaintiffs-Appellants, *

*

Rachel Epstein; Marguerite *

Hjalmarson, *

*

Plaintiffs, *

*

v. *

*

Wyeth, and its divisions; Wyeth *

Pharmaceuticals, Inc.; ESI Lederle; *

Pfizer, Inc.; Pharmacia & Upjohn *

Company; Pharmacia Corporation; *

Barr Laboratories, Inc.; Mead Johnson *

& Company; Greenstone Ltd.; Does *

1-10, *

*

Defendants-Appellees. *

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___________

Submitted: September 24, 2009

Filed: January 6, 2010

___________

Before MURPHY, BRIGHT and RILEY, Circuit Judges.

___________

BRIGHT, Circuit Judge.

The plaintiffs, women and next-of-kin of deceased women, sued a number of

manufacturers of hormone replacement therapy drugs, asserting the drugs caused

breast cancer. The defendants, manufacturers of hormone replacement therapy drugs

(“manufacturers”), removed the cases to federal court. The plaintiffs moved to

remand to state court on the grounds that complete diversity of citizenship was

lacking, thereby depriving the court of subject matter jurisdiction. The district court

concluded that the plaintiffs’ claims were misjoined to defeat diversity jurisdiction,

dropped the non-diverse plaintiffs, and dismissed these cases. Plaintiffs appeal, and

we reverse the district court’s orders denying plaintiffs’ motions to remand and

granting the manufacturers’ motions to dismiss duplicative cases.

I. BACKGROUND

A. Hormone Replacement Therapy

Hormone replacement therapy (“HRT”) drugs are used in the treatment of

menopausal symptoms. Such symptoms include hot flashes, chills, headache,

irritability, and vaginal atrophy. HRT drugs consist of a combination of estrogen and

progestin. The Women’s Health Initiative (WHI), a group focused on defining the

risks and benefits of strategies that could reduce heart disease, cancer, and fractures

in post-menopausal women, began studying the effects of HRT drugs in the 1990s. 

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The WHI enrolled 161,809 post-menopausal women between 50 and 79 years of age

into a set of clinical trials.

WHI studied the effect of estrogen plus progestin in 16,608 women with an

intact uterus. Women were either assigned a daily dose of estrogen plus progestin or

a placebo. In 2002, an independent data and safety monitoring board revealed that the

number of cases of breast cancer in the estrogen plus progestin group had crossed the

boundary established as a signal of increased risk. The independent board

recommended that the trial be ended early based on an increased breast cancer risk. 

The results of the WHI study were published in The Journal of the American Medical

Association. See Risks and Benefits of Estrogen Plus Progestin in Healthy

Postmenopausal Women, 288 J. Am. Med. Ass’n. 321-333 (2002), available at

http://jama.ama-assn.org/cgi/content/full/288/3/321.

B. The Lawsuits

This case concerns three lawsuits. The Kirkland suit was brought by 57 women

who each alleged injuries resulting from their use of HRT medications. The Kirkland

plaintiffs alleged they each developed breast cancer after taking HRT drugs that were

manufactured, marketed, and sold by one or more of eleven manufacturers. Fourteen

Kirkland plaintiffs are citizens of the same state as at least one of the manufacturers. 

Three of those fourteen plaintiffs asserted claims against manufacturers with the same

citizenship. For example, Nancy States is a citizen of Pennsylvania, the same state as

Wyeth Pharmaceuticals, Inc., a company that manufactured and marketed HRT drugs

she took.

The Jasperson suit was brought by Rick Jasperson, as trustee of the next-of-kin

of six decedents who used HRT drugs. The Jasperson plaintiffs alleged that in each

case, the next-of-kin sustained injuries when a woman family member developed

breast cancer as a result of taking HRT drugs that were manufactured, marketed, and

-6-
sold by one or more of six defendants. One of the six decedents, Elizabeth 

Mendelson, was a citizen of New Jersey, the same state as Pharmacia Corporation,

Wyeth, and Pharmacia & Upjohn Company, companies that manufactured and

marketed HRT drugs that Mendelson took.

The Allen suit was brought by 60 women who also alleged they each developed

breast cancer as a result of HRT medications manufactured, marketed, and sold by one

or more of eight defendants. Five Allen plaintiffs are citizens of the same state as at

least one of the defendants. Three of these five plaintiffs asserted claims against

manufacturers who were citizens of the same state. For example, Rachel Epstein is

a citizen of New York, the same state as Pfizer, a company that manufactured and

marketed HRT drugs that she took. 

C. Procedural History

The Kirkland, Jasperson, and Allen plaintiffs filed suits for damages in

Minnesota state court in July 2008. In each of the three consolidated cases, the

plaintiffs alleged they or a decedent family member had developed breast cancer from

taking HRT medications. The plaintiffs asserted state law claims for negligence, strict

liability, breach of implied warranty, breach of express warranty, fraud, negligent

misrepresentation, and statutory violations of the False and Misleading Advertising

Act, the Prevention of Consumer Fraud Act, and the Uniform Deceptive Trade

Practices Act. 

The manufacturers removed all three cases to the United States District Court

for the District of Minnesota. In the manufacturers’ removal petitions, they argued

diversity jurisdiction existed under the fraudulent misjoinder doctrine. They alleged

that the plaintiffs joined their claims together against the manufacturers to defeat

diversity jurisdiction. The manufacturers argued that the plaintiffs’ claims were

fraudulently misjoined, stating that those claims did not arise out of the same

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transaction or occurrence, a requirement for joinder under Federal Rule of Civil

Procedure 20(a).

The plaintiffs filed motions to remand the cases to state court for lack of subject

matter jurisdiction, asserting that complete diversity between the plaintiffs and

defendants did not exist. Before the plaintiffs’ motions were addressed, the litigation

came before the United States Judicial Panel on Multidistrict Litigation (“MDL”). 

The Kirkland and Jasperson cases were transferred to the Eastern District of Arkansas

and assigned to an MDL judge. Plaintiffs requested that the MDL court rule on their

pending motions to remand to state court.

Before the MDL court ruled on the question of remand, on December 19, 2008,

the manufacturers moved to dismiss most of the claims brought by the Kirkland

plaintiffs and all of the claims brought on behalf of the Jasperson decedents on the

grounds that the plaintiffs’ claims were duplicative of earlier filed California claims.1

Plaintiffs’ oppositions to the motions were due on December 30, 2008, and they

requested an extension of time to reply to the manufacturers’ motions to dismiss. 

On December 29, 2008, the court denied plaintiffs’ requests for an extension,

stating that it “did not grant your Motion for Extension of Time to Respond, because

I’m satisfied that you couldn’t say anything that would change my mind on the issues

involved here.” On that same day, the court denied in part plaintiffs’ motions to

remand the Kirkland and Jasperson cases to state court, concluding that the plaintiffs

were misjoined. The court stated that there was no reason for the joinder of the nondiverse plaintiffs other than to defeat diversity jurisdiction, and explained 

MDL courts have repeatedly held that misjoined plaintiffs will not defeat

diversity . . . . 

1

The California lawsuits had also been transferred to an MDL court. 

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[E]ven if a non-diverse plaintiff [has] a valid cause of action against a

defendant, that plaintiff may not prevent removal based on diversity of

citizenship if there is no reasonable basis for the joinder of that nondiverse plaintiff with the other plaintiffs. (Quotations omitted). 

Appellants’ Add. at 134-35.

The court concluded that the plaintiffs had failed to properly join under Rule

20 because “[t]he only thing common among Plaintiffs is that they took an HRT drug

-- but not necessarily the same HRT drug. Plaintiffs are residents of different states

and were prescribed different HRT drugs by different doctors, for different lengths of

time, in different amounts, and they suffered different injuries.” Id. at 135.

The court granted four of the Kirkland and Jasperson plaintiffs’ motions to

remand because those plaintiffs had asserted claims against a defendant who was from

the same state. The court denied 59 Kirkland and Jasperson plaintiffs’ motions to

remand because the plaintiffs were not asserting claims against manufacturers from

the same state. The court granted the manufacturers’ motions to dismiss as to these

59 plaintiffs. The court dropped the 59 plaintiffs from the lawsuit and dismissed their

claims, because they duplicated previously-filed California claims. 

On December 30, 2008, the plaintiffs moved pursuant to Rule 59(e) to alter or

amend the December 29 orders of dismissal. The plaintiffs argued that the court

improperly dismissed the cases without giving them an opportunity to respond to the

motions, and the court abused its discretion by dismissing the cases rather than staying

the Minnesota actions pending disposition of the California cases. The district court

denied the Rule 59(e) motions on December 30, 2008. 

In February 2009, the United States Judicial Panel on MDL transferred the

Allen case to the same MDL court for coordinated proceedings with other pending

HRT cases. On February 10, 2009, plaintiffs refiled their motions to remand the Allen

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case to state court. The court denied the motions on that same day, stating that the

plaintiffs were improperly joined under Rule 20 and that he could “see no reason for

the joinder of the non-diverse plaintiffs other than to defeat diversity jurisdiction.” 

Id. at 383. The court granted three of the Allen plaintiffs’ motions to remand because

those women had asserted claims against a manufacturer who was from the same state. 

The court granted the manufacturers’ motions to dismiss as to the remaining 57

plaintiffs. The court dropped the remaining 57 plaintiffs from the lawsuit and

dismissed their claims because of their duplicative cases.

As a result of the district court’s orders in Kirkland, Jasperson, and Allen, seven

plaintiffs’ cases were remanded to state court and the remaining 116 plaintiffs were

dropped from the litigation and their cases were dismissed.

The dismissed plaintiffs2

 appeal (1) the district court’s December 29, 2008,

orders and judgments denying plaintiffs’ motions to remand to state court and granting

defendants’ motions to dismiss duplicative cases; and (2) the district court’s December

30, 2008, orders on plaintiffs’ Rule 59(e) motions to alter or amend the final orders

of dismissal. Plaintiffs argue the district court: (1) erred in denying their motions to

remand to state court when it adopted the fraudulent misjoinder doctrine; (2) erred by

dismissing the plaintiffs from the cases without giving them a reasonable opportunity

to be heard; and (3) abused its discretion by refusing to stay the duplicative Minnesota

claims pending final resolution of the California claim. We reverse on the first issue,

thus we need not address the final two issues.

2

The plaintiffs whose cases were remanded to state court are not parties to these

appeals.

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II. DISCUSSION

On appeal, the plaintiffs argue the district court erred in denying their motions

to remand by applying a discredited theory known as “fraudulent misjoinder”3

 when

it concluded they were improperly joined to defeat diversity jurisdiction.

“We review the district court’s denial of the remand motion de novo.” Menz

v. New Holland North America, Inc., 440 F.3d 1002, 1004 (8th Cir. 2006); see also

Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir. 2007) (“Whether a plaintiff has

fraudulently joined a party to defeat diversity jurisdiction is a question of subject

matter jurisdiction we review de novo.”).

A defendant may remove a state law claim to federal court only if the action

originally could have been filed there. Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir.

2005). Diversity jurisdiction under 28 U.S.C. § 1332 requires an amount in

controversy greater than $75,000 and complete diversity of citizenship among the

litigants. 28 U.S.C. § 1332(a). “Complete diversity of citizenship exists where no

defendant holds citizenship in the same state where any plaintiff holds citizenship.” 

OnePoint Solutions, LLC v. Borchert, 486 F.3d 342, 346 (8th Cir. 2007).

After removal, a plaintiff may move to remand the case to state court, and the

case should be remanded if it appears that the district court lacks subject matter

jurisdiction. 28 U.S.C. § 1447(c). The defendant bears the burden of establishing

federal jurisdiction by a preponderance of the evidence. Altimore v. Mount Mercy

College, 420 F.3d 763, 768 (8th Cir. 2005). All doubts about federal jurisdiction

should be resolved in favor of remand to state court. Wilkinson, 478 F.3d at 963.

3

Some courts refer to this judicially-created doctrine as “procedural

misjoinder.” 

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Courts have long recognized fraudulent joinder as an exception to the complete

diversity rule. See 14B Charles Alan Wright et al., Federal Practice and Procedure

§ 3723, at 788-789 (4th ed. 2009). Fraudulent joinder occurs when a plaintiff files a

frivolous or illegitimate claim against a non-diverse defendant solely to prevent

removal. Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 809 (8th Cir. 2003). When

determining if a party has been fraudulently joined, a court considers whether there

is any reasonable basis in fact or law to support a claim against a nondiverse

defendant. Wilkinson, 478 F.3d at 964. 

A more recent, somewhat different, and novel exception to the complete

diversity rule is the fraudulent misjoinder doctrine which one appellate court4

 and

several district courts5

 have adopted. Fraudulent misjoinder 

occurs when a plaintiff sues a diverse defendant in state court and joins

a viable claim involving a nondiverse party, or a resident defendant, even

though the plaintiff has no reasonable procedural basis to join them in

4

Although the Eleventh Circuit is the only federal appellate court to adopt

fraudulent misjoinder, see Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360

(11th Cir. 1996), abrogated on other grounds by, Cohen v. Office Depot, Inc., 204

F.3d 1069 (11th Cir. 2000), the Fifth and Ninth Circuits have acknowledged it,

although not expressly adopted it. See In re Benjamin Moore & Co., 309 F.3d 296,

298 (5th Cir. 2002) (citing Tapscott, 77 F.3d at 1360) (“[I]t might be concluded that

misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction.”); In re

Benjamin Moore & Co., 318 F.3d 626, 630-31 (5th Cir. 2002) (“[W]ithout detracting

from the force of the Tapscott principle that fraudulent misjoinder of plaintiffs is no

more permissible than fraudulent misjoinder of defendants to circumvent diversity

jurisdiction, we do not reach its application in this case.”); California Dump Truck

Owners Ass’n v. Cummins Engine Co., Inc., 24 Fed. Appx. 727, 729 (9th Cir. 2001)

(“For purposes of discussion we will assume, without deciding, that this circuit would

accept the doctrines of fraudulent and egregious joinder as applied to plaintiffs.”).

5

See, e.g., Coleman v. Conseco, Inc., 238 F. Supp. 2d 804 (S.D. Miss. 2002);

Greene v. Wyeth, 344 F. Supp. 2d 674 (D. Nev. 2004); Smith v. Nationwide Mut. Ins.

Co., 286 F. Supp. 2d 777 (S.D. Miss. 2003). 

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one action because the claims bear no relation to each other. In such

cases, some courts have concluded that diversity is not defeated where

the claim that destroys diversity has “no real connection with the

controversy” involving the claims that would qualify for diversity

jurisdiction.

Ronald A. Parsons, Jr., Should the Eighth Circuit Recognize Procedural Misjoinder?,

53 S.D. L. Rev. 52, 57 (2008).

The Eleventh Circuit first considered and adopted the fraudulent misjoinder

doctrine in Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996). 

Tapscott concerned a putative class action filed in Alabama state court. Id. at 1355. 

In the initial complaint, one Alabama plaintiff sued four defendants, one of whom was

an Alabama resident. Id. The first amended complaint added sixteen named plaintiffs

and twenty-two named defendants. Id. The plaintiffs then amended their complaint

again, naming four additional plaintiffs, all Alabama residents, and three named

defendants. Id. One of those defendants, Lowe’s Home Centers, was a North

Carolina resident. Id. 

The initial complaint and first amended complaint alleged fraud violations

arising from the sale of automobile service contracts. Id. The second amended

complaint alleged fraud violations arising from the sale of extended service contracts

in connection with the sale of retail products. Id. The result of the amended

complaints and joinder under Rule 20 was to create two distinct groups of plaintiffs

and defendants: the non-diverse “automobile class” and the diverse “merchant class.” 

Id. at 1359-60, n.16.

Lowe’s Home Centers removed the case to federal court and moved to sever the

claims against it from the claims against the automobile class defendants. Id. at 1355. 

The plaintiffs moved to remand to state court for lack of federal subject matter

jurisdiction. Id. The district court granted Lowe’s Home Centers’ motion to sever

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and denied the plaintiffs’ motion to remand to state court, holding that there was “no

allegation of joint liability between Lowe’s and any other defendant and no allegation

of conspiracy” and “there was an improper and fraudulent joinder, bordering on a

sham.” Id. at 1360 (internal quotations omitted).

On appeal, the Eleventh Circuit Court of Appeals affirmed the district court’s

denial of the plaintiffs’ motion to remand. Id. The court held there was misjoinder

under Rule 20 because there was “no real connection” between the two sets of alleged

transactions. Id. The court reasoned that the alleged transactions concerning the

automobile class were wholly distinct from the transactions involving the merchant

class. Id. The only similarity between the two classes was that both classes violated

particular fraud provisions in the Alabama state code. Id. The Eleventh Circuit

cautioned that “mere misjoinder” is not fraudulent misjoinder. Id. However, the

plaintiffs’ joinder of these two groups of unrelated defendants was “so egregious as

to constitute fraudulent joinder.” Id. Therefore, the Eleventh Circuit reasoned that the

district court did not err in concluding the plaintiffs attempted to defeat diversity

jurisdiction by misjoinder. Id.

Courts’ reactions to Tapscott have been mixed. Some district courts have

adopted the doctrine as a means of ensuring defendants their statutory right of removal

to the federal courts and precluding plaintiffs from preventing removal to federal

court. See, e.g., In re Diet Drugs, No. 98-20478, 1999 WL 554584, at *3 (E.D. Pa.

July 16, 1999) (unreported) (explaining that plaintiffs’ egregious misjoinder

“wrongfully deprives Defendants of their right of removal.”); Reed v. American

Medical Sec. Group, Inc., 324 F. Supp. 2d 798, 805 (S.D. Miss. 2004) (adopting the

fraudulent misjoinder doctrine because “diverse defendants ought not be deprived of

their right to a federal forum by such a contrivance as this.”). See also Laura J. Hines

& Steven S. Gensler, Driving Misjoinder: The Improper Party Problem in Removal

Jurisdiction, 57 Ala. L. Rev. 779, 825 (2006) (explaining that fraudulent misjoinder

protects access to federal courts). 

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Other courts have criticized Tapscott, arguing that questions of joinder under

state law do not implicate federal subject matter jurisdiction, federal jurisdiction is to

be narrowly construed, and the fraudulent misjoinder doctrine has created an

unpredictable and complex jurisdictional rule. See, e.g., Osborn v. Metropolitan Life

Ins. Co., 341 F. Supp. 2d 1123, 1127 (E.D. Cal. 2004) (rejecting fraudulent misjoinder

because “the last thing the federal courts need is more procedural complexity.”);

Rutherford v. Merck & Co., 428 F. Supp. 2d 842, 851 (S.D. Ill. 2006) (holding that

Tapscott is an improper expansion of federal diversity jurisdiction, and misjoinder

should be resolved by a state court); 14B Charles Alan Wright et al., Federal Practice

and Procedure § 3723, at 876 (4th ed. 2009) (explaining that fraudulent misjoinder

adds “a level of complexity – and additional litigation – to a federal court’s decision

regarding removal.”).

The Eighth Circuit Court of Appeals has not yet considered the fraudulent

misjoinder doctrine. See Parsons, supra, at 60. We make no judgment on the

propriety of the doctrine in this case, and decline to either adopt or reject it at this

time. Rather, on the record in this case, we conclude that even if we adopted the

doctrine, the plaintiffs’ alleged misjoinder in this case is not so egregious as to

constitute fraudulent misjoinder. 

Rule 20(a)(1), Federal Rules of Civil Procedure, allows multiple plaintiffs to

join in a single action if (i) they assert claims “with respect to or arising out of the

same transaction, occurrence, or series of transactions or occurrences;” and (ii) “any

question of law or fact common to all plaintiffs will arise in the action.”6

 In 

6

Whether the federal or state rules on joinder apply has also received conflicting

results post-Tapscott. Compare Tapscott, 77 F.3d at 1360 (applying, without analysis,

the federal rules of joinder to determine that the plaintiffs egregiously misjoined the

defendants), and Brooks v. Paulk & Cope, Inc., 176 F. Supp. 2d 1270, 1274 (M.D.

Ala. 2001) (applying the Federal Rules of Civil Procedure), with Osborn, 341 F. Supp.

2d at 1128 (“[M]ost courts looking at this issue have applied the state rule. This seems

the better choice since the question is whether the parties were misjoined in state

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construing Rule 20, the Eighth Circuit has provided a very broad definition for

the term “transaction.” As stated in Mosley v. General Motors Corp., 497 F.2d 1330

(8th Cir. 1974): 

“Transaction” is a word of flexible meaning. It may

comprehend a series of many occurrences, depending not

so much upon the immediateness of their connection as

upon their logical relationship. 

Accordingly, all “logically related” events entitling a person to institute

a legal action against another generally are regarded as comprising a

transaction or occurrence. The analogous interpretation of the terms as

used in Rule 20 would permit all reasonably related claims for relief by

or against different parties to be tried in a single proceeding. Absolute

identity of all events is unnecessary. 

Id. at 1333 (citations omitted); see also 7 Charles A. Wright et al., Federal Practice

and Procedure, § 1653, at 415 (3d ed. 2001) (explaining that the transaction/

occurrence requirement prescribed by Rule 20(a) is not a rigid test and is meant to be

“read as broadly as possible whenever doing so is likely to promote judicial

economy.”).

After considering the Rule 20 joinder standards, we conclude that the

manufacturers have not met their burden of establishing that plaintiffs’ claims are

court.”), and Asher v. Minnesota Mining and Mfg. Co., No. 04CV522KKC, 2005 WL

1593941, at *6 (E.D. Ky. June 30, 2005) (unreported) (stating that more courts apply

state procedural rules). However, we decline to address this choice of law issue

because the standards for joinder under Fed. R. Civ. P. 20 and Minn. R. Civ. P. 20.01

are identical in all significant respects, and application of the state joinder rules does

not affect our analysis. Therefore, for purposes of this case only, we apply the federal

rules in addressing the misjoinder allegation.

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egregiously misjoined.7

 Plaintiffs’ claims arise from a series of transactions between

HRT pharmaceutical manufacturers and individuals that have used HRT drugs. 

Plaintiffs allege the manufacturers conducted a national sales and marketing campaign

to falsely promote the safety and benefits of HRT drugs and understated the risks of

HRT drugs. Plaintiffs contend their claims are logically related because they each

developed breast cancer as a result of the manufacturers’ negligence in designing,

manufacturing, testing, advertising, warning, marketing, and selling HRT drugs. 

Some of the plaintiffs allege to have taken several HRT drugs made by different

manufacturers. 

Furthermore, given the nature of the plaintiffs’ claims, this litigation is likely

to contain common questions of law and fact. See Hines & Gensler, supra, at 822

(“When plaintiffs join together to sue a defendant based on the purchase of a common

product or having engaged in a common transaction, it seems rather clear that their

claims will involve some common question of law or fact.”). One such common

question might be the causal link between HRT drugs and breast cancer. Causation

for all of the plaintiffs’ claims will likely focus on the 2002 WHI study suggesting a

link between HRT drugs and breast cancer and whether the manufacturers knew of the

dangers of HRT drugs before the publication of that study.

Based on the plaintiffs’ complaints, we cannot say that their claims have “no

real connection” to each other such that they are egregiously misjoined. See Tapscott,

77 F.3d at 1371. This is unlike Tapscott where the alleged transactions concerning

the automobile class were wholly distinct from the transactions involving the

merchant class and there was “no real connection” between the two sets of

transactions. Id. Here, there may be a palpable connection between the plaintiffs’

7

We observe that the district court determined that removal was proper because

the plaintiffs failed to meet the requirements of Fed. R. Civ. P. 20(a). But it was the

manufacturers’ burden as the removing party to prove that federal jurisdiction exists. 

See Altimore, 420 F.3d at 768.

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claims against the manufacturers as they all relate to similar drugs and injuries and the

manufacturers’ knowledge of the risks of HRT drugs.

Furthermore, the manufacturers have presented no evidence that the plaintiffs

joined their claims to avoid diversity jurisdiction. “[T]he majority of courts demand

more than simply the presence of nondiverse, misjoined parties, but rather a showing

that the misjoinder reflects an egregious or bad faith intent on the part of the plaintiffs

to thwart removal.” Hines & Gensler, supra, at 803. Without any evidence that the

plaintiffs acted with bad faith, we decline to conclude they egregiously misjoined their

claims.

We clarify that we make no judgment on whether the plaintiffs’ claims are

properly joined under Rule 20. See Moore v. SmithKline Beecham Corp., 219 F.

Supp. 2d 742, 746 (N.D. Miss. 2002) (“Of course, the court is not faced with and

expresses no opinion as to the issue of whether joinder is proper in this case; rather,

the court’s task is solely to determine whether the Plaintiffs are so egregiously

misjoined that fraudulent joinder has taken place.”). It may be that the plaintiffs’

claims are not properly joined, and it has been suggested that the proper procedure

may be for the manufacturers to argue that to the state court.8

 See Johnson v. Glaxo

Smith Kline, 214 F.R.D. 416, 421 (S.D. Miss. Mar. 29, 2002) (holding that even if

defendants are correct that plaintiffs’ claims are improperly joined, the issue of “mere

misjoinder” is more appropriately addressed to the state district court). However, it

8

Considering the uncertainty surrounding the propriety of the joinder of

plaintiffs’ claims, the preferable course of action may have been for defendants to

challenge the misjoinder in state court before it sought removal. See 14B Charles A.

Wright et al., Federal Practice and Procedure § 3723, at 658 (3d ed. 1998) (“[T]he

fraudulent-joinder doctrine and its allied jurisprudence adds a further level of

complexity – and additional litigation – to a federal court’s decision regarding

removal jurisdiction . . . . In many situations this confusion easily could be avoided

by having the removing party challenge the misjoinder in state court before seeking

removal.”).

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is not clear that the joinder is so egregious and grossly improper under the broadlyinterpreted joinder standards that it warrants an adoption and application of the

fraudulent misjoinder doctrine. See Walton v. Tower Loan of Miss., 338 F. Supp. 2d

691, 695 (N.D. Miss. 2004) (“[F]or Tapscott to be applicable, this court would be

required to find a level of misjoinder that was not only improper, but grossly improper

. . . .”). Therefore, absent evidence that plaintiffs’ misjoinder borders on a “sham,”

see Tapscott, 77 F.3d at 1360, we decline to apply Tapscott to the present case.

III. CONCLUSION

Because the joinder of claims in this case does not constitute egregious

misjoinder, complete diversity does not exist and the district court erred in denying

plaintiffs’ motions to remand to state court. We reverse the district court’s orders and

judgments granting in part and denying in part plaintiffs’ motions to remand to state

court and instruct the district court to remand all of the cases to Minnesota state court

for lack of diversity jurisdiction. Because the district court lacked jurisdiction to act

in this matter, we also vacate the district court’s orders granting the manufacturers’

motions to dismiss the duplicative cases.9

______________________________

9

We need not consider plaintiffs’ remaining claims because resolution of the

fraudulent misjoinder issue renders resolution of any other claims unnecessary.

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