United States District Court, W.D. Kentucky, Paducah Division
CAROLYN WARD WIMAN; and LATTA W. WIMAN PLAINTIFFS
TRIANGLE ENTERPRISES, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge.
matter is before the Court on Plaintiffs' Emergency
Motion to Remand (DN 6). The motion is ripe for adjudication.
For the reasons outlined below, the motion is GRANTED.
STATEMENT OF FACTS AND CLAIMS
the parties' voluminous briefs, the facts relevant to the
court's decision in this case are simple and
straightforward: Defendants Johnson & Johnson and Johnson
& Johnson Consumer, Inc. (“Defendants”)
removed this action under Rule 9027 of the Federal Rules of
Bankruptcy Procedure, 28 U.S.C. § 1334, and 28 U.S.C.
§ 1452. (Notice Removal 1, DN 1). There is presently a
state action pending in the Graves Circuit Court, Kentucky,
where Plaintiffs Carolyn Ward Wiman and Latta W. Wiman
(“Plaintiffs”) assert various claims against
Defendants relating to their injuries allegedly caused from
using Defendants' talcum powder. (Notice Removal
Talc America, Inc. and two affiliated companies (“the
Debtors”)-suppliers of talc to Defendants but not named
defendants in the state court action-filed for bankruptcy in
the United States Bankruptcy Court for the District of
Delaware. (Notice Removal ¶ 1). Defendants now have a
pending motion before the Delaware District Court seeking to
fix venue for numerous personal injury cases related to
Defendants' talc products in the District of Delaware.
(Notice Removal ¶ 7). Simultaneously, Plaintiffs'
action has proceeded towards trial in the Graves Circuit
Court, with substantial discovery having been conducted and a
trial date set for November 2019. (Pls.' Mot. Remand 1,
DN 6 [hereinafter Pls.' Mot.]).
reason for removal is plainly stated in Defendants' May
1, 2019, letter to the Court: They hope this Court will
exercise jurisdiction over the state law claim and stay
proceedings pending the Delaware District Court's
resolution of their motion to fix venue. (Letter Defs.'
Counsel 2, DN 5). Defendants need this Court to allow removal
of the state court action because, while the Civil Rules
allow the District Court where a bankruptcy is pending to
consolidate claims related to the bankruptcy, those claims
must already be pending in another District Court. See 28
U.S.C. § 157(b)(5).
object on several grounds. Plaintiffs argue removal is
untimely pursuant to 28 U.S.C. § 1446(b). (Pls.'
Mot. 5-7). Next, Plaintiffs assert Defendants waived any
right of removal by engaging in defensive litigation for two
months before filing the notice of removal. (Pls.' Mot.
7). Plaintiffs further contend this Court lacks subject
matter jurisdiction because claims in this lawsuit are not
related to the bankruptcy. (Pls.' Mot. 8-13). To this
end, Plaintiffs urge that the mere existence of
indemnification agreements between Defendants and Debtors is
insufficient to create a nexus for “related to”
jurisdiction. (Pls.' Mot. 11). Further, Defendants'
and Debtors' shared insurance agreements and the
potential for future shared liability are also insufficient
to establish related to jurisdiction. (Pls.' Mot. 11-16).
Finally, Plaintiffs argue both mandatory and permissive
abstention factors favor remand in this case. (Pls.' Mot.
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). “The district court shall order
that personal injury tort and wrongful death claims shall be
tried in the district court in which the bankruptcy case is
pending, or in the district court in the district in which
the claim arose, as determined by the district court in which
the bankruptcy case is pending.” 28 U.S.C. §
157(b)(5). A party may remove an action “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 . . . .” 28
U.S.C. § 1452(a).
“[t]he court to which such claim or cause of action is
removed may remand such claim or cause of action on any
equitable ground.” 28 U.S.C. § 1452(b). Section
1334 similarly provides that “nothing in this section
prevents a district court in the interest of justice, or in
the interest of comity with State courts or respect for State
law, from abstaining from hearing a particular proceeding
arising under title 11 or arising in or related to a case
under title 11.” 28 U.S.C. § 1334(c)(1). The
Court's decision to remand under either Section 1452 or
1334 is not reviewable. 28 U.S.C. §§ 1334(d),
parties engage in a great deal of discussion concerning
federal court jurisdiction of claims ancillary to a pending
bankruptcy, permissive versus mandatory abstention, and
timeliness of filing. The Court concludes, however, that
while these arguments might be relevant under a different set
of facts, the circumstances here call for an equitable
solution. Plaintiffs' critical illness, the advanced
stage of the state court litigation, and respect for the
coequal state courts of Kentucky lead the Court to conclude
that remand is appropriate.
Ms. Wiman suffers from malignant peritoneal mesothelioma, a
universally fatal illness. (Pls.' Mot. 1).
Defendants' request that the Court stay this litigation
pending resolution of their motion in Delaware could well
deprive Ms. Wiman of her chance for a day in court while she
is still alive. While no legal doctrine or enumerated right
guarantees a terminally ill plaintiff the right to see their
case heard before they pass, the Court concludes that
fundamental notions of fairness and compassion counsel
against staying the proceedings for an unknown period.
Moreover, this case is not in its nascent stages. The Graves
Circuit Court has managed discovery, and the parties have
created an extensive case record. It would be imprudent to
call a halt to the process at this point.
assuming jurisdiction could be exercised, the Court would not
exercise that jurisdiction over a pending state law claim
with at best a marginal connection to a bankruptcy in
Delaware. In short, it seems inappropriate for Defendants to
use this Court as a pass-through jurisdiction in an attempt
to transfer proceedings to Delaware. Plaintiffs' claims
have nothing whatsoever to do with the Debtors but are
asserted against Defendants that are apparently subject to
jurisdiction of Kentucky state courts. Requiring Plaintiffs
to litigate their claims in Delaware under these
circumstances would seem to be patently unfair. See
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 130
(1995) (“Section 1452(b) broadly provides for district
court remand of claims related to bankruptcy cases ‘on
any equitable ground' . . . .”); see also
Estate of Scott v. Cervantes, No. 08-03293-MMM (CWx),
2008 WL 11337657, at *4 (C.D. Cal. July 29, 2008).
Plaintiffs have moved for their costs in responding to
Defendants' removal pursuant to 28 U.S.C. § 1447(c).
The Court enjoys wide discretion in awarding costs under
Section 1447(c). Bartholomew v. Town of
Collierville,409 F.3d 684, 686 (6th Cir. 2005). While
the Court concludes that equitable factors warrant remanding
the case, Defendants have not shown “an objectively
unreasonable basis for seeking ...