United States District Court, W.D. Kentucky, Louisville Division
CYNTHIA HAYES, AS EXECUTRIX OF THE ESTATE OF DONNA ANN HAYES PLAINTIFF
COLGATE-PALMOLIVE COMPANY, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge.
matter is before the Court on Plaintiff's Emergency
Motion to Remand [DN 10], Plaintiff's Motion for Leave to
File Excess Pages [DN 23], and Defendant Johnson &
Johnson's Motion for Leave to File Excess Pages [DN 25].
Fully briefed, these matters are ripe for decision. For the
following reasons, both Motions for Leave to Files Excess
Pages are GRANTED and Plaintiff's Emergency Motion to
Remand is GRANTED. Plaintiff's request for attorney's
fees and costs is DENIED.
Ann Hayes (“Decedent”) brought an action in
Jefferson Circuit Court on July 25, 2016. [DN 1-2, DN 10 at
1]. Decedent alleged that her malignant mesothelioma was a
result of her use of Defendant Johnson & Johnson's
(“J&J”) talcum powder products containing
asbestos- specifically, J&J's Cashmere Bouquet and
Shower to Shower talcum products. [DN 1-2 at 10-11, DN 10 at
1]. Decedent also sued other parties in her state action but
the causes of action against J&J are the only ones
relevant to the instant Motion. [DN 1-2 at 5-8]. Decedent
died of malignant mesothelioma on December 7, 2016.
[Id. at 3-4]. Cynthia Hayes
(“Plaintiff”), was appointed executrix of the
estate of Decedent on January 18, 2017. [Id. at 4].
The state court action was revived, and Plaintiff, as
executrix, was substituted as the plaintiff on February 20,
2017. [Id.]. This case has been heavily litigated in
state court for almost three years.
February 13, 2019, the producer of the talcum powder, Imerys
Talc America, Inc. (“Imerys”), filed a Notice of
Suggestion of Pendency of Bankruptcy and Automatic Stay of
Proceedings, informing the Jefferson Circuit Court of its
commencement of bankruptcy proceedings in the United States
Bankruptcy Court for the District of Delaware pursuant to
Chapter 11 of title 11 of the United States Code.
weeks later, J&J participated in oral arguments in the
state court action regarding its own motion for summary
judgment and other pre-trial motions filed by the parties.
[Id.]. On April 12, 2019, the state court issued a
ruling denying summary judgment to J&J and ruling on most
of the motions in limine. [Id.]. Despite having two
months since Imerys filed its Notice in the Jefferson Circuit
Court-the event J&J relies on as creating the basis for
federal subject matter jurisdiction-J&J gave no
indication it was going to remove the action to federal
April 18, 2019, over two months after Imerys' Notice to
the Jefferson Circuit Court, J&J filed in the District
Court of Delaware its Motion to Fix Venue for Claims Related
to Imerys' Bankruptcy (“Motion to Fix
Venue”). [Id. at 5]. J&J then filed its
Notice of Removal of the state court talcum powder claims on
April 25, 2019. [DN 1]. It appears that J&J only intended
to remove to federal court Plaintiff's claims against it.
[DN 26 n.32]. Accordingly, Plaintiff's action against
Defendant Colgate-Palmolive Company remains in state court.
As grounds for removal, J&J maintains that federal
subject matter jurisdiction exists because the state court
action is related to Imerys' Chapter 11 bankruptcy.
See §§ 1334(b), 1452(a). [Id. at
4]. J&J proposes three grounds upon which the Court may
find related-to jurisdiction: (1) indemnity agreements; (2)
shared insurance policies; and (3) identity of interest.
filed the instant Emergency Motion to Remand on April 29,
2019. [DN 10]. Plaintiff offered several bases upon which the
Court could remand the action to state court: (1)
J&J's removal to federal court was untimely and, as
such, its right of removal is waived [Id. at 5- 7];
(2) even if J&J removed in a timely fashion, J&J
continued to litigate the action in state court for two
months after it allegedly had the right to remove, thus
demonstrating its clear intent to litigate in state court
[Id. at 7-8]; (3) if the Court finds that J&J
did not waive its right to remove to federal court, the state
court action is not sufficiently related to Imerys'
pending bankruptcy to supply the Court subject matter
jurisdiction [Id. at 9-19]; (4) even if the Court
finds there to be subject matter jurisdiction, abstention is
mandatory [Id. at 20-23]; and (5) even if mandatory
abstention does not apply, the factors relevant to permissive
abstention warrant remand [Id. at 23- 28]. In its
Response, J&J asks the Court to either deny or defer
ruling on Plaintiff's Motion to Remand until the District
Court of Delaware rules on its Motion to Fix Venue. [DN 26 at
1, DN 1, DN 1-4]. J&J appears hopeful that the District
Court of Delaware will find that the pending state court
personal injury and wrongful death actions against it are
sufficiently related to Imerys' Chapter 11 bankruptcy
pending in its court such that that it will fix venue in
Delaware for all such actions. However, the Court is not
required to defer its determination as to whether it may
exercise jurisdiction over Plaintiff's state court talcum
powder claims because of J&J's filing in the District
Court of Delaware.
well established that federal courts are courts of limited
jurisdiction, possessing only the authority to hear cases
authorized by the Constitution and statute. Hudson v.
Coleman, 347 F.3d 138, 141 (6th Cir. 2003). The party
who seeks to invoke a federal district court's
jurisdiction bears the burden of establishing the court's
authority to hear the case. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). The Court is
mindful that statutes conferring removal jurisdiction, like
the one invoked by J&J, are to be strictly construed.
Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949
(6th Cir. 1994). All doubts as to the propriety of removal
are resolved in favor of remand. Brierly v. Alusuisse
Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.
U.S.C. § 1452 provides for the removal of claims related
to bankruptcy cases. Subsection (a) of that statute specifies
that “[a] 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, if such district court
has jurisdiction of such claim or cause of action under
section 1334 of this title.” § 1452(a). Section
1334(b) grants district courts with “original but not
exclusive jurisdiction of all civil proceedings arising under
title 11 [of the Bankruptcy Code], or arising in or related
to cases under title 11.” 28 U.S.C. § 1334(b).
Once a claim is removed to federal district court pursuant to
§ 1452(a), the court to which the claim has been removed
“may remand such claim or cause of action on any
equitable ground.” § 1452(b). An order under this
subsection “is not reviewable by appeal or otherwise by
the court of appeals under section 158(d), 1291, or 1292 [of
Title 28] or by the Supreme Court . . . .” Id.
“any equitable ground” language of § 1452(b)
provides federal courts broad authority and discretion in
determining whether remand is proper. Ector Investors,
L.P. v. BML, Inc. (In re Warren Producers,
Inc.), 358 B.R. 717, 719 (Bankr. W.D. Ky. 2007) (citing
Grace Cmty. v. KPMG Peat Marwick, LLP (In re Grace Cmty.,
Inc.), 262 B.R. 625, 629 (Bankr. E.D. Pa. 2001)).
Section 1452(b), and its counterpart 1334(c), governing
abstention, evince a strong congressional intent that
although certain matters may be heard in federal court, many
should remain in state court. This is particularly true where
the action removed to federal court does not maintain a
strong connection to the bankruptcy case. Specifically, where
there is no basis for federal jurisdiction independent of
§ 1334(b) and the litigation can be timely completed in
state court, trial of state law issues should be allowed to
proceed in state court. § 1334(c)(2).
within the Sixth Circuit have established a No. of
considerations relevant to determining whether an action
should be remanded based on equitable grounds. Those
(1) duplicative and uneconomical effort of judicial resources
in two forums; (2) prejudice to the involuntarily removed
parties; (3) forum non conveniens; (4) the state's
ability to handle a suit involving questions of state law;
(5) comity considerations; (6) lessened possibility of an
inconsistent result; ...