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Lea v. Johnson & Johnson

United States District Court, E.D. Louisiana

July 24, 2019

PHYLLIS LEA
v.
JOHNSON & JOHNSON, ET AL.

         SECTION "L" (4)

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE.

         Before the Court is Plaintiff Phyllis Lea's Emergency Motion to Remand. R. Doc. 16. The motion is opposed. R. Doc. 14. The Court now rules as follows.

         I. BACKGROUND

         On March 16, 2018, Plaintiff Phyllis Lea filed suit in the Civil District Court for the Parish of Orleans against Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (collectively, “J&J”), Imerys Talc America, Inc., and K&B Louisiana Corporation, seeking damages related to her ovarian cancer diagnosis. R. Doc. 16-1 at 3-4. Plaintiff contends her diagnosis is due to, and a consequence of, her regular perineal application of Defendants' asbestos-containing/contaminated talcum powder products. R. Doc. 16-1 at 3. This lawsuit is one of approximately 2, 400 personal injury and wrongful death suits filed throughout the country against J&J on similar grounds. R. Doc. 16-1 at 4.

         Imerys Talc America, Inc. (“Imerys”) is J&J's talcum powder supplier. R. Doc. 16-1 at 1. On February 13, 2019, Imerys and two affiliates filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the District of Delaware. R. Doc. 14 at 7. On April 18, 2019, J&J filed a Motion to Fix Venue in the United States District Court for the District of Delaware for all cases related to Imerys' bankruptcy proceedings. R. Doc. 14 at 7. On April 24, 2019, J&J removed Plaintiff's suit to this Court pursuant to 28 U.S.C. § 1452(a), on the basis that Plaintiff's claims are “related to” to the Imerys Chapter 11 bankruptcy proceedings and the Court therefore has federal subject matter jurisdiction under 28 U.S.C. § 1334(b). R. Doc. 14 at 11, 14. Moreover, on April 30, 2019, J&J filed an Emergency Motion for Provisional Transfer in the Delaware District Court, but the motion was denied. R. Doc. 14 at 8.

         II. PRESENT MOTION

         On June 6, 2019, Plaintiff filed an Emergency Motion to Remand to the Civil District Court for the Parish of Orleans. R. Doc. 16. On June 26, 2019, Plaintiff filed a notice of supplemental authority in support of her motion to remand. R. Doc. 17. Plaintiff asks the Court to remand for the following reasons: (1) J&J's Notice of Removal was untimely; (2) the Court lacks subject matter jurisdiction under 28 U.S.C. § 1334(b) because the claims are not sufficiently related to the Imerys bankruptcy proceeding; (3) mandatory abstention is warranted; and/or (4) equitable factors weigh heavily in favor of remand. R. Doc. 16-1 at 2-3.

         J&J opposes remand and asks the Court to hold Plaintiff's Emergency Motion to Remand in abeyance until the Delaware District Court rules on the Motion to Fix Venue. R. Doc. 14 at 1. In the alternative, J&J argues it “properly and timely removed this action under Rule 9027 of the Federal Rules of Bankruptcy Procedure . . . and the relevant bankruptcy statutes, 28 U.S.C. §§ 1334 and 1452.” R. Doc. 14 at 1. On July 19, 2019, the Delaware District Court denied J&J's Motion to Fix Venue, holding J&J had “not met its burden to establish that ‘related-to' subject matter jurisdiction exists over State Court Talc Claims, and, even if it had, [the Delaware District Court] would abstain from hearing the roughly 2, 400 cases in this district.” In re Imerys Talc America, Inc., et al., No. 19-MC-103 (MN), 2019 WL 3253366, at *2 (D. Del. July 19, 2019).

         III. LAW AND ANALYSIS

         Because the Delaware District Court denied J&J's Motion to Fix Venue, this Court need not address J&J's request to hold the Remand Motion in abeyance. As such, the Court will only address Plaintiff's argument for why remand is warranted.

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Thus, this Court “may not exercise that jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). As the party seeking removal, J&J bears the burden of establishing federal jurisdiction. See Energy Mgmt. Services, LLC v. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014). “[A]ny doubt as to the propriety of removal should be resolved in favor of remand.” In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007).

         Section 1452(a) of the Bankruptcy Code states any party “may remove any claim or cause of action in a civil action . . . to the district court for the district where such action is pending” when the district court has jurisdiction over the claim or cause of action under 28 U.S.C. § 1334. 28 U.S.C. § 1452(a). Section 1334(b), meanwhile, vests the district court with “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).

         The Court has authority to remand claims removed under § 1452(a) “on any equitable ground.” 28 U.S.C. § 1452(b). Indeed, § 1452(b) affords the Court “an unusually broad grant of authority.” Removed State Court Talc Actions v. Johnson & Johnson, No. 19-3080-CJC (JCX), 2019 WL 2191808, at *2 (C.D. Cal. May 21, 2019); see also Dubose v. Merchants & Farmers Bank, 318 F.Supp.2d 419, 428 (S.D.Miss. 2003) (“[R]emand authority under § 1452(b) is much broader than under the general federal removal statute.”). Moreover, a district court's remand order under § 1452(b) “is not reviewable by appeal or otherwise.” 28 U.S.C. § 1452(b); see also Arnold v. ...


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