United States District Court, E.D. Louisiana
ORDER & REASONS
E. FALLON U.S. DISTRICT COURT JUDGE.
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.
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.
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.
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.
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).
LAW AND ANALYSIS
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
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).
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).
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. ...