United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
the Court is Plaintiff Lorraine O'Riorden's
(“Plaintiff”) motion to remand. [ECF No. 7]. For
the reasons set forth below, Plaintiff's motion to remand
[ECF No. 7] is GRANTED. Accordingly, this action is
remanded to the Massachusetts Superior Court for Middlesex
County (“Superior Court”).
April 13, 2017, Plaintiff filed this personal injury
asbestos-related action against Johnson & Johnson and
Johnson & Johnson Consumer, Inc. (“Johnson &
Johnson” or “Defendants”) based on her use
of Johnson & Johnson personal talc products. See
[ECF No. 1-2 (“Complaint” or
“Compl.”)]. The Complaint also names Imerys Talc
America, Inc. (“Imerys”), one of Johnson &
Johnson's talc suppliers, as a defendant. [Id.].
On February 13, 2019, Imerys and two related entities filed a
petition for Chapter 11 bankruptcy in the U.S. Bankruptcy
Court for the District of Delaware. [ECF No. 1 ¶ 1].
April 18, 2019, Johnson & Johnson removed this action
pursuant to 28 U.S.C. §§ 1452(a) and 1334(b)
stating as grounds for removal that the case was
“related to” Imerys' Chapter 11 bankruptcy
proceeding. [ECF No. 1 ¶¶ 17-21]. This action was
one of at least five similar lawsuits Johnson & Johnson
removed to the District of Massachusetts on the same day.
See Notice of Removal at 1, Rivera v. Johnson
& Johnson, No. 19-cv-10747-LTS (D. Mass. Apr. 18,
2019); Notice of Removal at 1, Rodgers v. Johnson &
Johnson, No. 19-cv-10754-DJC (D. Mass. Apr. 18, 2019);
Notice of Removal at 1, Mitchell v. Johnson &
Johnson, No. 19-cv-10762-FDS (D. Mass. Apr. 18, 2019);
Notice of Removal at 1, Wilson v. Johnson &
Johnson, No. 19-cv-10764-RGS (D. Mass. Apr. 18, 2019).
April 18, 2019, Johnson & Johnson filed a Motion to Fix
Venue for Claims Related to Imerys' Bankruptcy in the
District of Delaware (“Motion to Fix Venue”) in
which it sought to consolidate 2, 400 talc actions in the
District of Delaware on the basis that “all individual
state-law personal injury or wrongful death claims against
[Johnson & Johnson] are ‘related to' the
[Imerys] bankruptcy. . . .” In re Imerys Talc Am.,
Inc., No. 19-mc-00103-MN, 2019 WL 2052351, at *2 (D.
Del. May 9, 2019); see [ECF No. 1-4]. Johnson &
Johnson later sought to provisionally transfer the 2, 400
cases on an emergency basis. Mot. for Provisional Transfer at
1, In re Imerys Talc Am., No. 19-mc-00103-MN (D.
Del. April 30, 2019), ECF No. 12. The request for provisional
transfer was denied on May 9, 2019. See In re Imerys Talc
Am., Inc., 2019 WL 2052351, at *5. An order on the
Motion to Fix Venue has not yet been issued.
2, 2019, Plaintiff timely filed a motion to remand her case
to Superior Court. [ECF No. 7]. She argued that the Court
lacked subject-matter jurisdiction over the case, was
required to remand the case due to mandatory abstention under
28 U.S.C. § 1334(c)(2), and, in any event, that the
removal was untimely and procedurally defective. [ECF No. 7-1
at 3-4]. On May 16, 2019, Defendants opposed remand and urged
this Court to defer ruling on the motion to remand until
after the District of Delaware issues an order on Johnson
& Johnson's Motion to Fix Venue. [ECF No. 16 at 7].
On May 30, 2019, Plaintiff submitted a reply brief. [ECF No.
23]. Both parties also have provided supplemental
authorities. See [ECF Nos. 8, 9, 14, 24].
defendant seeking removal bears the burden of showing that
the federal court has jurisdiction. See Danca v. Private
Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999).
Here, Defendants removed the case pursuant to federal
“related to” jurisdiction under 28 U.S.C.
§§ 1452(a) and 1334(b). Section 1452(a) permits
removal of cases over which the district court has
jurisdiction pursuant to § 1334(b), with some exceptions
not applicable here. 28 U.S.C. § 1452(a). Section
1334(b) provides that district courts have jurisdiction over
“all civil proceedings arising under title 11, or
arising in or related to cases under title 11.” 28
U.S.C. § 1334(b). Defendants seek to demonstrate that
this Court has “related to” jurisdiction over the
removed claims by pointing to contractual indemnifications
contained in supply agreements between Defendants and Imerys
and to Imerys' alleged rights to shared insurance with
Defendants. [ECF No. 16 at 9].
Court strongly questions whether Johnson & Johnson has
carried its burden of demonstrating “related to”
jurisdiction for the reasons articulated by Judge Sorokin in
a related remanded action. See Mem. & Order at
4-5, Rivera, No. 19-cv-10747-LTS (D. Mass. May 31,
2019) (remanding related case for lack of subject-matter
jurisdiction). Specifically, that Imerys apparently disputes
indemnification and the existence of shared insurance
suggests that the present lawsuit would not “affect
[Imerys'] bankruptcy without the intervention of yet
another lawsuit, ” thereby defeating “related
to” jurisdiction under long-standing case law. See
id.; see also [ECF No. 23 at 6-13 (quoting
In re W.R. Grace & Co., 591 F.3d 164, 172 (3d
Cir. 2009)]. It is unnecessary for the Court to resolve these
factual and legal issues, however, because equity counsels
to 28 U.S.C. § 1452(b), this Court has discretion to
remand cases removed under 28 U.S.C. § 1452(a) “on
any equitable ground.” 28 U.S.C. § 1452(b). To
determine whether equitable grounds exist, courts consider
the following factors:
(1) the effect of the action on the administration of the
bankruptcy estate; (2) the extent to which issues of state
law predominate; (3) the difficulty of applicable state law;
(4) comity; (5) the relatedness or remoteness of the action
to the bankruptcy case; (6) the existence of a right to a
jury trial; and (7) prejudice to the party involuntarily
removed from state court.
Fed. Home Loan Bank of Bos. v. Ally Fin., Inc., No.
11-cv-10952-GAO, 2012 WL 769731, at *4 (D. Mass. Mar. 9,
2012) (quoting In re Santa Clara Cnty. Child Care
Consortium, 223 B.R. 40, 46 (B.A.P. 1st Cir. 1998);
see also Messerlian v. A.O. Smith Corp., No.
09-cv-00393-WES-LDA, 2010 WL 308981, at *4 (D.R.I. Jan. 25,
2010) (listing similar factors).
of these factors strongly weighs in favor of remand. First,
trying this case in Superior Court in Massachusetts will not
impact the efficient administration of Imerys' bankruptcy
estate. See Cambridge Place Inv. Mgmt., Inc. v. Morgan
Stanley & Co., No. 10-cv-11376-NMG, 2010 WL 6580503,
at *7 (D. Mass. Dec. 28, 2010). Second, state law issues
predominate because the Complaint asserts only state-law
claims. [Compl. ¶¶ 12-50]. Third, although the
state law to be applied in this action is only of moderate
difficulty, “comity counsels in favor of state-court
resolution of state-law claims.” See Fed. Home Loan
Bank of Bos., 2012 WL 769731, at *4. Fourth,
Plaintiff's case is only remotely related to the Imerys
bankruptcy proceeding. Finally, removal will cause
significant prejudice to Plaintiff where her case was nearly
trial-ready in Superior Court after pending for almost two
years. Plaintiff is slated to have a December 4, 2019 trial
date, which is significantly sooner than any trial would
occur were Plaintiff's case heard in Delaware, and that
trial will be presided over by Judge Heidi Brieger, who
oversees the Asbestos Litigation docket and therefore has
deep familiarity with this case and others like it.
See [ECF No. 23 at 17]. ...