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Cortez v. Johnson & Johnson

United States District Court, M.D. Louisiana

June 20, 2019

SANDRA CORTEZ
v.
JOHNSON & JOHNSON ET AL.

          RULING AND ORDER

          Brian A. Jackson, Judge

         Before the Court is the Motion (Doc. 9) of Sandra Cortez to remand this action to the 19th Judicial District Court for the Parish of East Baton Rouge. For the reasons that follow, the Motion (Doc. 9) is GRANTED.

         I. BACKGROUND

         At issue in this products-liability action is bankruptcy jurisdiction over the Louisiana-law claims a terminally ill Louisiana citizen asserted against J&J[1] in a Louisiana court. J&J seeks to compel that citizen to litigate her claims in Delaware based on tenuous ties to a bankruptcy petition filed by one of J&J's cosmetic-talc suppliers. The Court finds the equities dispositive and orders remand under 28 U.S.C. § 1452(b).

         In November 2018, Sandra Cortez sued J&J, Imerys Talc America, Inc., and K&B Louisiana Corporation in the 19th Judicial District Court for the Parish of East Baton Rouge. (Doc. 1 at p. 21). She alleges that she developed ovarian cancer because she regularly used cosmetic-talc products these companies manufactured, marketed, or sold. (Id. at pp. 21-33). She alleges negligence, redhibition, and civil-conspiracy claims under Louisiana law. (Id.).

         In April 2019, J&J removed the claims[2] against it to this Court under the bankruptcy removal statute, 28 U.S.C. § 1452(a). (Doc. 1). J&J asserts that the Court has jurisdiction under 28 U.S.C. § 1334(b) because this case is "related to" a bankruptcy petition filed by one of its talc suppliers, Imerys Talc America, Inc., in the United States Bankruptcy Court for the District of Delaware. (Id.). This case is related to that one, J&J asserts, because (1) Imerys Talc America, Inc. may have a duty to indemnify J&J against Cortez's claims, (2) Imerys Talc America, Inc. and J&J share insurance, and (3) Imerys Talc America, Inc. and J&J share an "identity of interest." (Id.).

         Cortez's claims are serious but not unique. Thousands of plaintiffs across the nation have sued J&J on a similar theory; the use of J&J cosmetic-talc products causes the user to develop cancer. J&J's basis for removal is not unique, either. J&J has removed thousands of state-court talc suits based on an alleged link to the Imerys Talc America, Inc. bankruptcy. In the Middle District of Louisiana alone, J&J has removed at least nine suits. See Civil Action Nos. 19-230-SDD-EWD, 19-231-BAJ-EWD, 19-233-JWD-EWD, 19-234-SDD-RLB, 19-240-SDD-EWD, 19-242-SDD-EWD, 19-250-BAJ-JW, 19-253-JWD-EWD, 19-255-SDD-RLB.

         Meanwhile, in Delaware, J&J has invoked 28 U.S.C. § 157(b)(5) and moved the United States District Court for the District of Delaware to "fix" venue for all similar talc suits. (Doc. 1 at ¶¶ 7-8). J&J's motion is fully briefed.[3] See In re Imerys Talc America, Inc., No. 1-19-MC-103-MN (D. Del. 2019).

         Now, Cortez moves to remand. (Doc. 9). She argues that the Court lacks related-to jurisdiction and the equities favor remand. (Id.). She emphasizes her poor prognosis and her right to an expedited trial in state court. (Id.). J&J opposes remand and urges the Court to await the United States District Court for the District of Delaware's ruling on its venue motion. (Doc. 14).

         II. LEGAL STANDARD

         This Courtis a court of limited jurisdiction. SeeKokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It "may not exercise that jurisdiction absent a statutory basis[.]" Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Because J&J removed this case, J&J '"bears the burden of showing that federal jurisdiction exists and that removal was proper.'" Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722, 723 (5th Cir. 2002)).

         III. DISCUSSION

         The parties filed lengthy briefs on the timeliness of removal, mandatory abstention, and related-to jurisdiction. (Docs. 9, 14). But this Court, like hundreds of others, finds the equities dispositive. See, e.g., In re State Court Talc Actions, F.Supp.3d__, 2019 WL 2497856, at *4 (S.D.N.Y. June 4, 2019); Wiman v. Triangle Enters., Inc., No. 5:19-CV-59-GNS, 2019 WL 2341671, at *2 (W.D. Ky. June 3, 2019); In re Removed State Court Talc Actions, No. 19-CV-3076-CJC, 2019 WL 2191808, at *4 (CD. Cal. May 21, 2019). The Court therefore assumes that removal was timely and related-to jurisdiction is present.

         The Court may remand claims removed under 28 U.S.C. § 1452(a) "on any equitable ground." 28 U.S.C. § 1452(b). Section 1452(b) grants the Court "broad discretion" to remand; any ...


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