United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge United States District Court.
case is one of thousands pending in state and federal courts,
including several within this district, in which plaintiffs
allege that Johnson & Johnson's cosmetic talcum
powder products contained asbestos and caused them to develop
mesothelioma. See, e.g., Hayes v.
Colgate-Palmolive Co., No. 3:19-cv-00316-JHM, 2019 WL
2396576 (W.D. Ky. June 6, 2019); Wiman v. Triangle
Enter., Inc., No. 5:19-CV-00059-GNS, 2019 WL 231671
(W.D. Ky. June 3, 2019); Removed State Court Talc Actions
v. Johnson & Johnson, No. CV 19-3080-CJC (JCX), 2019
WL 2191808, at *1 (C.D. Cal. May 21, 2019) (“There are
roughly 2, 400 talc-related actions that have been filed
against Johnson & Johnson in state courts
nationwide.”). Plaintiff Michael Clouse filed this
lawsuit against Johnson & Johnson and Johnson &
Johnson Consumer Inc. (J&J) in July 2018 in Jefferson
County, Kentucky, Circuit Court; the case was proceeding to a
January 2020 trial date when it was removed to this Court on
April 22, 2019. (Docket No. 10, PageID # 2753-54)
February 2019, Imerys Talc America, Inc. and two affiliated
companies (Debtors) that supplied cosmetic talc to J&J
over a period of years filed for bankruptcy in the United
States Bankruptcy Court for the District of Delaware. (D.N.
1, PageID # 1) J&J removed this case pursuant to Rule
9027 of the Federal Rules of Bankruptcy Procedure and 28
U.S.C. §§ 1334 and 1452 (D.N. 1), alleging that
this action is sufficiently “related to” the
Debtor's bankruptcy proceedings to provide this Court
with jurisdiction. (Id.) See In re Imerys Talc
Am., No. 19-10289 (Bankr. D. Del.).
also filed a motion in the U.S. District Court for the
District of Delaware to transfer all the related talc cases
to that court pursuant to 28 U.S.C. § 157(b)(5) and
1334(b). (D.N. 1, PageID # 630-926) Following removal in this
case, J&J filed a letter encouraging the Court to stay
any ruling on remand or other motions until the District of
Delaware ruled on the motion to transfer. (D.N. 8, PageID #
2741) Shortly thereafter, Clouse filed an emergency motion to
remand asking the Court to find that removal was untimely,
that the Court lacks subject-matter jurisdiction, and that
remand should be granted on equitable grounds. (D.N. 10)
District of Delaware recently denied J&J's motion to
transfer, finding that J&J “has not met its burden
to establish that ‘related-to' subject
matter[-]jurisdiction exists over State Court Talc Claims,
and, even if it had, this [Court] would abstain from hearing
the roughly 2, 400 cases in this district.” In re
Imerys Talc Am., Inc., et al., No. 19-mc-103 (MN) (D.
Del. July 19, 2019), ECF No. 21-1, at 4260. J&J has filed
a letter notifying the Court that it withdraws its opposition
to Clouse's emergency motion to remand. (See
D.N. 22) Therefore, the Court will deny J&J's motion
to stay as moot and will consider only Clouse's motion to
remand. Given that J&J no longer opposes the motion, the
Court's analysis will be abbreviated.
invoked this Court's jurisdiction pursuant to 28 U.S.C.
§§ 1334 and 1452. (D.N. 1, PageID # 1) When a case
is removed under section 1452, “[t]he burden of showing
federal jurisdiction is borne by the removing party.”
Church Joint Venture v. Graphic Enhancement Techs.
Corp., No. 13-1042, 2013 WL 3929725, at *2 (W.D. Tenn.
July 29, 2013) (citing Coyne v. Am. Tobacco Co., 183
F.3d 488, 493 (6th Cir. 1999)). “All doubts as to the
propriety of removal are resolved in favor of remand.”
Coyne, 183 F.3d at 493.
1452 permits a party to remove claims related to bankruptcy
cases. In particular, “[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.” 28 U.S.C. § 1452(a).
Meanwhile, 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).
District of Delaware noted in its order denying J&J's
motion to fix venue that it “is not aware of any case
in which a federal district judge has found subject matter
jurisdiction over a removed State Court Talc Claim against
[J&J].” In re Imerys Talc Am., Inc., et
al., No. 19-mc-103 (MN), ECF No. 21-1, at 4259-60. That
court went on to find that J&J failed to establish
“related-to” jurisdiction for three reasons: the
potential for indemnification in this situation is
insufficient; J&J failed to establish that shared
insurance policies would affect the bankruptcy estate; and
J&J and the Debtors “do not share an identity of
interest.” Id., at 4260-72.
Court agrees with the District of Delaware and the growing
number of district courts that have found that the potential
effect on the pending Delaware bankruptcy proceeding is too
remote to give rise to “related-to” jurisdiction.
(See D.N. 1-1, PageID # 942-45) See Carrera v.
Johnson & Johnson, No. 119CV00536LJOEPG, 2019 WL
2499187, at *4 (E.D. Cal. June 17, 2019) (finding no
“related-to” jurisdiction under similar facts);
San Nicolas v. Johnson & Johnson, No.
3:19-CV-01153-MBS, 2019 WL 2482380, at *2 (D.S.C. June 14,
2019) (“Discussing the potential for indemnification or
litigation regarding indemnification at this stage is mere
speculation. Imerys is not a party to this claim; as such,
Plaintiff does not seek relief from Imerys or its bankruptcy
estate.”); O'Riorden v. Johnson &
Johnson, No. 19-CV-10751-ADB, 2019 WL 2371782, at *2 (D.
Mass. June 5, 2019) (questioning whether
“related-to” jurisdiction is present on similar
facts); Kerkhof v. Johnson & Johnson, No.
8:19-cv-01502-PX (D. Md. June 3, 2019) (same); Kaufman v.
Johnson & Johnson Consumer, Inc., No. 19CV0520, 2019
WL 2297556, at *3 (W.D. Pa. May 30, 2019) (finding no
“related-to” jurisdiction because “the
outcome of the instant case will not bind Imerys or its
affiliates, and because Imerys is not a party here,
therefore, res judicata and collateral estoppel will not
apply to bind Imerys”); Holman v. Johnson &
Johnson, No. 19AP00645, 2019 WL 2214826, at *6 (Bankr.
N.D.Ill. May 22, 2019) (finding no “related-to”
jurisdiction based on the “potential for
indemnification or litigation regarding
indemnification” and because Imerys was not a party and
plaintiffs did not seek relief from Imerys in bankruptcy
court). Remand is therefore required. See 28 U.S.C.
1447(c) (“If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
this case were sufficiently related to the Delaware
bankruptcy proceeding to confer jurisdiction, remand would be
appropriate as a matter of equity. Once a claim is removed
pursuant to § 1452(a), the Court “may remand such
claim or cause of action on any equitable ground.”
§ 1452(b); see Hayes, 2019 WL 2396576, at *3
(“In short, the Court has unusually broad discretion in
determining whether remand is appropriate under 28 U.S.C.
§ 1452(b).”). “The key phrase ‘any
equitable ground' provides the bankruptcy [or district]
court with broad authority and discretion in determining
whether to remand a proceeding.” In re Warren
Producers, Inc., 360 B.R. 249, 253 (Bankr. W.D. Ky.
2007); see, e.g., Tavener v. Johnson &
Johnson, No. 5:19-CV-0459 (GTS/TWD), 2019 WL 2754423, at
*8-11 (N.D.N.Y. July 2, 2019) (applying eleven factors when
considering remand “on any equitable ground”
under 28 U.S.C. § 1452(b)). The broad standard in §
1452(b) “evince[s] a ...