United States District Court, E.D. Louisiana
CATHY M. JACKSON
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC.
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court is the plaintiff's emergency motion to remand.
For the reasons that follow, the motion is GRANTED.
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
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.
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.
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). 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
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
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).
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 ...