The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DANIELLE ANN POWERS CASE NO. 6:19-CV-00504
VERSUS JUDGE DOUGHTY
BEACON C M P CORP ET AL MAGISTRATE JUDGE HANNA
REPORT AND RECOMMENDATION
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. (Case 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 title or by the Supreme Court of the United States
under section 1254 of this title.
28 U.S.C. §1452
I. Whether the Court should defer ruling on Plaintiff’s Motion to Remand
pending a decision to fix venue by the Delaware Court.
Initially, J&J argued in its Notice of Removal that the Court should defer
ruling on Plaintiff’s Motion to Remand pending resolution of J&J’s Motion to Fix
Venue for Claims Related to Imerys’s Bankruptcy, which J&J filed in the United
States District Court in Delaware on April 18, 2019. (Rec. Doc. 1, ¶7). If the
Delaware court grants J&J’s Motion, all talc claims, including the instant case,
would be consolidated in that Court. (See J&J’s Motion to Fix Venue at Rec. Doc.
1-2). Therefore, J&J urges the Court to defer ruling on remand until the Delaware
court determines the appropriate venue.
A threshold question is whether venue or jurisdiction should be decided first,
since J&J essentially asks the Court to maintain jurisdiction, yet to defer to the
Delaware District Court for a determination on venue. Although this is not the first
court to face the issue, the Fifth Circuit has not before considered it. This Court is
persuaded by the analysis in Briese v. Conoco-Philips Co., wherein the court
determined that a “situation-specific” approach should be taken in determining
whether to consider venue or jurisdiction first. Briese v. Conoco-Phillips Co., No.
2:08-CV-1884, 2009 WL 256591, at *3 (W.D. La. Feb. 3, 2009).
In a procedurally similar case, Marquette Transport Co. v. Trinity Marine, the
court held that transfer to the bankruptcy court was proper for a decision as to
jurisdiction (i.e. that transfer should occur before the jurisdiction determination).
Marquette Transport Co. v. Trinity Marine Products, Inc., 2006 WL 2349461
(E.D.La. Aug. 11, 2006). In that case one of the defendants in a consolidated
products liability action filed for bankruptcy in Illinois. Shortly thereafter, two
defendants removed the cases to the Eastern District of Louisiana pursuant to 28
U.S.C. §§1334 and 1452. Id. The plaintiffs moved for remand arguing that federal
jurisdiction was lacking or, alternatively, that the court should abstain from
considering the matter. Id. at *2. Subsequently, another defendant filed motions to
transfer the consolidated actions to Illinois. Id. In determining that transfer trumped
a jurisdictional finding, the court reasoned that “because the jurisdictional question
in this matter is necessarily intertwined with the pending bankruptcy proceedings,
the Court finds that first considering defendants' transfer motions will serve the
interest of judicial economy and that the bankruptcy court is best suited to resolve
the issue of section 1334 jurisdiction.” Id. at *2. Contrast Briese, wherein the
bankruptcy proceedings had concluded long before removal, such that there was no
reason to transfer to the bankruptcy court prior to considering jurisdiction. Briese,
supra, at *3.
An alternative approach was taken by the court in Jackson v. Johnson &
Johnson, an identical talc-related case against J&J and Imerys, recently decided by
the Eastern District of Louisiana. Jackson v. Johnson & Johnson, No. CV 19-9983,
2019 WL 2537837 (E.D. La. June 20, 2019). In that case, the court declined to
consider the existence of J&J’s pending Motion to Fix Venue (the same Motion J&J
urges this Court to consider in deference), finding that “the possibility that this case
may be transferred to Delaware at some undefined time justifie[d] neither the denial
of plaintiff’s motion to remand, nor deferring ruling on the motion.” Id. at *4.
The Court agrees with the approach taken by the court in Jackson, supra. A
finding by the Delaware District Court to consolidate the related cases and fix venue
in that Court would have the same effect regardless of whether this Court were to
maintain jurisdiction or remand to State Court. Thus, the Court finds it would be
inequitable to hinge this Court’s jurisdiction on an anticipated decision by the
Delaware District Court.
II. Whether the Court has subject matter jurisdiction under 28 U.S.C.
§1334(b).
Having determined to proceed with a jurisdictional analysis, the Court next
considers the merits of Plaintiff’s Motion to Remand. Plaintiff first argues that this
Court does not have subject matter jurisdiction, because her claims are not “related
to” the Debtors’ Chapter 11 bankruptcy, as required by 28 U.S.C. 1334. “For the
purpose of determining whether a particular matter falls within bankruptcy
jurisdiction…it is necessary only to determine whether a matter is at least ‘related
to’ the bankruptcy.” Matter of Wood, 825 F.2d 90, 93 (5th Cir.1987). In adopting the
test enunciated by the Third Circuit in Pacor, Inc. v. Higgins, the Fifth Circuit
defined the “related” inquiry as “whether the outcome of that proceeding could
conceivably have any effect on the estate being administered in bankruptcy.” Id.,
quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984). (Emphasis in
original.)
J&J posits three reasons in support of its removal based upon “related to”
jurisdiction: 1) the triggering of rights and obligations arising under supply
agreements between J&J and the Debtors; 2) the Debtors’ demand for coverage
under J&J’s insurance policies; and 3) an identity of interest between the Debtors
and J&J. Plaintiff disputes all three grounds.
The Court declines to engage in a detailed analysis of whether the case is
sufficiently “related to” the Debtors’ bankruptcy, not only because of the Delaware
District Court’s pending decision on whether to consolidate all talc cases in that
court, but also because the Court agrees that remand is proper. As discussed below,
the doctrines of equitable remand and permissive abstention support the Court’s
decision to decline to exercise jurisdiction at this stage in the proceedings.
III. Whether the Court should abstain under 28 U.S.C. §1334(c) and/or
equitably remand under §1452(b).
Alternative to her argument that her claims are not “related to” the Debtors’
Delaware bankruptcy, Plaintiff urges the Court to abstain from exercising
jurisdiction (assuming it exists) pursuant to 28 U.S.C. §1334 and to otherwise
remand pursuant 28 U.S.C. 1452(b), which authorizes the court to remand “on any
equitable ground.” The Fifth Circuit succinctly discussed permissive and mandatory
abstention as follows:
Under the “permissive abstention” doctrine, 28 U.S.C. § 1334(c)(1),
courts have broad discretion to abstain from hearing state law claims
whenever appropriate “in the interest of justice, or in the interest of
comity with State courts or respect for State law.” See also Wood v.
Wood (In re Wood), 825 F.2d 90, 93 (5th Cir.1987) (noting that §
1334(c)(1) “demonstrate[s] the intent of Congress that concerns of
comity and judicial convenience should be met, not by rigid limitations
on the jurisdiction of federal courts, but by the discretionary exercise of
abstention when appropriate in a particular case”). Under § 1334(c)(2),
however, courts must abstain from hearing a state law claim for which
there is no independent basis for federal jurisdiction other than §
1334(b) “if an action is commenced, and can be timely adjudicated, in
a State forum of appropriate jurisdiction.” Mandatory abstention
applies only to non-core proceedings—that is, proceedings “related to
a case under title 11,” but not “arising under title 11, or arising in a case
under title 11.” 28 U.S.C. §§ 157(b)(1) & 1334(c)(2). A court, however,
may abstain at its discretion from deciding either core or non-core
proceedings under § 1334(c)(1) if the interests of justice, comity, or
respect for state law so require.
Matter of Gober, 100 F.3d 1195, 1206 (5th Cir.1996).
In addition to these doctrines of abstention, the Court is authorized by
§1452(b) to remand on equitable grounds. In determining whether equitable remand
is appropriate, the following considerations are relevant: (1) forum non conveniens;
(2) whether the action has been bifurcated by removal; (3) whether a state court is
better able to respond to questions involving state law; (4) expertise of a particular
court; (5) duplicative and uneconomic effort of judicial resources in two forums; (6)
prejudice to the involuntarily removed parties; (7) comity; and (8) a lessened
possibility of an inconsistent result. Browning v. Navarro, 743 F.2d 1069, 1076 n.21
(5th Cir. 1984). The Court is vested with “broad discretion to grant or deny a motion
to remand on any equitable ground.” Id.
The Court need not conduct a detailed analysis of whether the instant
proceedings constitute core or non-core proceedings for purposes of the abstention
analysis, because consideration of justice and the equities in this case justify remand
pursuant to §1334(c)(1) (permissive abstention) and §1452(b) (equitable remand).
First, Delaware would constitute an inconvenient forum for Plaintiff, who lives in
Louisiana and who sustained damages in Louisiana. Moreover, this case has been
pending in Louisiana State Court since February 2016 and, according to Plaintiff,
was ready to be tried in State Court in January 2019. Second, to maintain jurisdiction
will result in bifurcation of the case vis-à-vis J&J and the various other defendants.
Third, Plaintiff’s claims arise under Louisiana tort law and products liability, issues
which are more properly addressed by Louisiana state courts. Finally, it makes little
sense to require Plaintiff to prosecute her claims against J&J in a new forum in
Delaware, while having to prosecute her claims against the other defendants in the
Louisiana forum of her original choice. As one court aptly noted in a similar case,
“[f]ailure to remand would require the plaintiffs to pursue their claims in multiple
forums, even if the stay were lifted, and would cause needless waste of already
limited judicial resources.” Wise v. Cypress Manor Care Ctr., Inc., No. 05-1555,
2005 WL 2487950, at *2 (W.D. La. Oct. 6, 2005). Likewise, the Court finds that
remand and permissive abstention are appropriate in this instance.
This Court joins multiple other District Courts across the country in
remanding identical state-law claims against J&J, despite J&J’s pending Motion to
Fix Venue in Delaware. See e.g. inter alia, Carrera v. Johnson & Johnson, No.
119CV00536LJOEPG, 2019 WL 2499187, at *6 (E.D. Cal. June 17, 2019);
Removed State Court Talc Actions v. Johnson & Johnson, No. CV 19-3080-CJC
(JCX), 2019 WL 2191808, at *4 (C.D. Cal. May 21, 2019); O'Riorden v. Johnson &
Johnson, No. 19-CV-10751-ADB, 2019 WL 2371782, at *2 (D. Mass. June 5,
2019); Holman v. Johnson & Johnson, 600 B.R. 6, 19 (Bankr. N.D. Ill. 2019); In re
Imerys Talc Am., Inc., No. 19-10289-LSS, 2019 WL 2575048, at *5 (Bankr. W.D.
Okla. June 21, 2019); In re Johnson & Johnson, No. 19-CV-3480(LGS), 2019 WL
2497856, at *3 (S.D.N.Y. June 4, 2019), and the multitude of cases cited therein.
Conclusion
For the reasons discussed herein, it is recommended that Plaintiff’s Motion
for Remand and Abstention (Rec. Doc. 6) be GRANTED.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b),
parties aggrieved by this recommendation have fourteen days from service of this
report and recommendation to file specific, written objections with the Clerk of
Court. A party may respond to another party’s objections within fourteen days after
being served with of a copy of any objections or responses to the district judge at the
time of filing.
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in the report and recommendation within
fourteen days following the date of its service, or within the time frame authorized
by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual
findings or the legal conclusions accepted by the district court, except upon grounds
of plain error. See Douglass v. United Services Automobile Association, 79 F.3d
1415 (5 Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
$636(b)(1).
THUS DONE in Chambers, Lafayette, OES of July, 2019.
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