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Powers v. Beacon C M P Corp.

United States District Court, W.D. Louisiana, Lafayette Division

July 1, 2019

DANIELLE ANN POWERS
v.
BEACON C M P CORP ET AL

          DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          PATRICK J. HANNA JUDGE

         Before the Court is the Motion to Remand and Abstention filed on behalf of Plaintiff, Danielle Ann Powers (Rec. Doc. 6), filed in response to the removal by Defendants, Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively “J&J”) (Rec. Doc. 1). J&J opposes the Motion (Rec. Doc. 12), and Plaintiff has replied (Rec. Doc. 16). Colgate-Palmolive Company submitted a brief in which it “takes no position on the merits of the removal.” (Rec. Doc. 8). The Motion was referred to the undersigned magistrate judge for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of this Court. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, it is recommended that Plaintiff's Motion be GRANTED.

         Factual Background

         Plaintiff filed this lawsuit arising out of the death of her mother allegedly caused by talc-containing products distributed by J&J. Among various other defendants, Plaintiff sued J&J and Imerys Talc America, Inc., the alleged manufacturer of the talc contained in J&J products, in Louisiana state court in February 2016. (Rec. Doc. 1-2). This case is one of many such suits for talc-related damages pending around the country in both state and federal courts. (See documents at Rec. Doc. 1-2 to 1-6). According to Plaintiff, the parties were prepared to proceed with trial in January 2019, but for a stay pending appellate proceedings and Imerys's subsequent bankruptcy filing. (Rec. Doc. 6-1 at 8).

         On February 13, 2019, Imerys (and affiliated companies) filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. (No. 19-10289-LSS). Thereafter, on April 18, 2019, J&J filed a Motion to Fix Venue for Claims Related to Imerys's Bankruptcy Under 28 U.S.C. §§157(b)(5) and 1334(b) in the United State District Court for the District of Delaware. (Rec. Doc. 1-2 to 1-6). In that Motion, J&J seeks to have all pending talc-related claims against it consolidated in the Delaware District Court on the grounds that these lawsuits are related to Imerys's bankruptcy. That Motion remains pending.

         In the meantime, upon Imerys's filing of its Chapter 11 Petition, J&J removed this case to this Court, asserting the Court's jurisdiction over civil proceedings arising in or related to cases under Chapter 11. (Rec. Doc. 1). J&J has removed only those claims against it. Plaintiff filed the Motion for Remand and Abstention now before the Court. (Rec. Doc. 6). Plaintiff argues this case is not sufficiently “related to” Imerys's Chapter 11 to confer subject matter jurisdiction and that, regardless, the Court should remand on equitable grounds and/or abstain from maintaining jurisdiction in light of the advanced procedural posture of the case, as well as the fact that Plaintiff is no longer proceeding against Imerys in her state law-based claims. (See Rec. Doc. 6-1, fn. 9).

         Applicable Law

          J&J removed this matter pursuant to 28 U.S.C. §1334(b) and §1452:

Except as provided in subsection (e)(2), and notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.
28 U.S.C. §1334(b)
(a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, 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.
(b) The court to which such claim or cause of action is removed may remand such claim or cause of action on any equitable ground. An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this ...

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