United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA JUDGE
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.
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
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.
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).
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 ...