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Jackson v. Johnson & Johnson

United States District Court, E.D. Louisiana

June 20, 2019

CATHY M. JACKSON
v.
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC.

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's emergency motion to remand. For the reasons that follow, the motion is GRANTED.

         Background

         This lawsuit is one of roughly 2, 400 personal injury and wrongful death actions attributing the use of Johnson & Johnson's talcum powder products to the development of cancer.

         Cathy Jackson began using Johnson & Johnson's Baby Powder and Shower to Shower products in 1968 to powder her perineal area. She ceased using the products in April of 2017 when she was diagnosed with ovarian cancer. The following year, on March 19, 2018, Ms. Jackson brought a products liability action in Orleans Parish Civil District Court against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (collectively, “J&J”); Imerys Talc America, Inc., J&J's talc supplier; and K&B Louisiana Corporation, the owner of the drugstore at which she regularly purchased the offending products. Alleging that the defendants were on notice of, yet failed to warn about, the dangers associated with talcum powder use, Ms. Jackson's petition asserts various state law causes of action and seeks to recover punitive damages.

         Meanwhile, on February 13, 2019, Imerys Talc America, J&J's talc powder supplier, filed for bankruptcy under Chapter 11 in the United States Bankruptcy Court for the District of Delaware. This filing automatically stayed the prosecution of all pending talc-related claims against Imerys. Two months later, J&J began to remove talc-related state court claims filed against it across the country, pursuant to 28 U.S.C. § 1452(a), on the ground that they are “related to” the Imerys bankruptcy proceeding and that federal courts therefore have jurisdiction under 28 U.S.C. § 1334. In addition, on April 18, 2019, J&J filed a Motion to Fix Venue with the United States District Court for the District of Delaware, seeking the transfer of all talc-related state and federal actions to Delaware for resolution, pursuant to 28 U.S.C. § 157(b)(5). Twelve days later, on April 30, 2019, J&J filed an Emergency Motion for Provisional Transfer Under 28 U.S.C. § 157(b)(5), urging the Delaware Court to provisionally transfer all personal injury and wrongful death talc claims against J&J, prior to ruling on J&J's Motion to Fix Venue.

         The following day, on May 1, 2019, J&J removed Jackson's state court talc claims asserted against it, invoking this Court's jurisdiction under §§ 1452(a) and 1334(b).[1] As grounds for removal, J&J submits that the Imerys bankruptcy proceeding gives rise to “related to” jurisdiction because (1) supply agreements between J&J and Imerys provide for contractual indemnification; (2) J&J shares insurance with the debtor; and (3) there is an identity of interest between J&J and Imerys with respect to the state court claims. On May 9, 2019, Judge Noreika of the District of Delaware denied J&J's Emergency Motion for Provisional Transfer. See In re Imerys Talc America, Inc., BR No. 19-10289-LSS, 2019 WL 2052351 (D. Del. May 9, 2019). Judge Noreika determined that J&J had not demonstrated the need for immediate, ex parte relief and that there would be no prejudice to deciding J&J's Motion to Fix Venue “in due course.” Id. at *3.[2]

         Jackson now moves to remand on the following grounds: (1) removal was untimely; (2) the removed claims are not sufficiently related to Imerys' bankruptcy proceeding to confer federal subject matter jurisdiction; and (3) even if this Court has jurisdiction, this is a proper case for either mandatory abstention or equitable remand. In response, J&J urges the Court to either deny or defer ruling on the motion to remand until the District Court of Delaware rules on the pending Motion to Fix Venue. J&J hopes that the Delaware District Court will find the state personal injury and wrongful death claims against it sufficiently related to Imerys' bankruptcy proceeding in that District and therefore fix venue in Delaware for all such actions.[3]

         I.

         A.

         Federal courts are courts of limited jurisdiction, possessing only the authority granted by the United States Constitution and conferred by the United States Congress. Energy Mgmt. Services, LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). As such, “[i]t is presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Id. It is also well-established that the “statutory procedures for removal are to be strictly construed” and that “any doubt as to the propriety of removal should be resolved in favor of remand.” Energy Mgmt. Services, Inc., 739 F.3d at 257; Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (internal quotations omitted).

         B.

         Section 1452(a) of the Bankruptcy Code provides that “[a] party may remove any claim or cause of action . . . to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” 28 U.S.C. § 1452(a). Section 1334(b), in turn, states that district courts “have original but not ...


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