United States District Court, D. Massachusetts
LOUISEMARIE HONOR, as Executrix of the Estate of LOUISE CORCORAN
JOHNSON & JOHNSON
ZOBEL, SENIOR UNITED STATES DISTRICT JUDGE
December 20, 2018, Louisemarie Honor
(“plaintiff”), as executrix of the estate of
Louise Corcoran (“plaintiff-decedent”), filed
suit against Johnson & Johnson and three other defendants
in Middlesex Superior Court. Plaintiff alleges that Johnson
& Johnson's asbestos-containing talc products caused
plaintiff-decedent's mesothelioma and eventual death, and
asserts claims of negligence, breach of express and implied
warranties, and wrongful death.
February 13, 2019, Imerys Talc America, Inc., and two of its
affiliates (collectively “Imerys”), filed a
chapter 11 petition in the United States Bankruptcy Court for
the District of Delaware. 11 U.S.C. § 101 et
seq. According to Johnson & Johnson, Imerys is its
“sole talc supplier.” Docket # 17 at 7.
April 18, 2019, Johnson & Johnson removed the instant
case to this court, with the ultimate aim of transferring it
and thousands others to the United States District Court for
the District of Delaware. On May 1, 2019, plaintiff filed an
emergency motion to remand.
Imerys is not a named defendant, Johnson & Johnson
asserts that this court has jurisdiction over the instant
suit because it is “related to” the Imerys
bankruptcy proceedings, 28 U.S.C.§ 1334(b), and properly
removable under 28 U.S.C. § 1452(a).
& Johnson argues that “related-to”
jurisdiction exists because (1) pursuant to various supply
agreements, Imerys must defend and indemnify Johnson &
Johnson against plaintiff's claims; (2) Imerys has sought
coverage under shared insurance policies with Johnson &
Johnson for expenses incurred in defending other talc-related
lawsuits; and (3) the two companies have an identity of
interest. As the defendant seeking removal, Johnson &
Johnson bears the burden of establishing federal
jurisdiction. Danca v. Private Health Care Sys.,
Inc., 185 F.3d 1, 4 (1st Cir. 1999).
case is one of several recently removed by Johnson &
Johnson to the United States District Court for the District
of Massachusetts. Four of my colleagues have remanded cases
presenting the same jurisdictional arguments now advanced by
Johnson & Johnson. Mitchell v. Johnson & Johnson
et al., 19-cv-10762-FDS, ECF No. 32 (D. Mass. June 12,
2019); O'Riorden v. Johnson & Johnson et
al., 19-cv-10751-ADB, ECF No. 25 (D. Mass. June 5,
2019); Rivera v. Johnson & Johnson,
19-cv-10747-LTS, ECF No. 29 (D. Mass. May 31, 2019);
Wilson, et al. V. Johnson & Johnson,
19-cv-10764-RGS, ECF No. 19 (D. Mass. May 29,
2019). I, too, believe that remand is required.
Johnson & Johnson cannot establish jurisdiction on the
basis of non-party Imerys's possible indemnification or
defense obligations. The determination of any such liability
will likely require separate litigation, distinct from and
irrelevant to this plaintiff's claims against Johnson
& Johnson alone. See In re W.R. Grace & Co.,
412 B.R. 657, 667 (D. Del. 2009) (court lacks
“related-to” jurisdiction when subsequent lawsuit
against debtor is required to determine indemnification
obligations). Moreover, as Judge Sorokin noted in his
recent remand order, Imerys's indemnification of Johnson
& Johnson is both “hotly disputed” and
“surely not automatic.” Rivera,
19-cv-10747-LTS, ECF No. 29 at 4.
unavailing is Johnson & Johnson's argument that
jurisdiction exists because of Imerys's alleged rights to
shared insurance with Johnson & Johnson. That issue is
also disputed and likely to be the subject of protracted
litigation, separate from plaintiff's lawsuit. And,
finally, Johnson & Johnson fails to establish a
sufficient identity of interests between it and Imerys such
that Imerys is the real party defendant. See Id.
(quoting A.H. Robins Co. v. Piccinin, 788 F.2d 994,
999 (4th Cir. 1986)).
plaintiff's suit has been pending for nearly six months
in the state court and involves only Massachusetts law
claims. Accordingly, even if jurisdiction existed, equitable
considerations, including efficiency and comity, support
remand. See 28 U.S.C. § 1452(b).
motion to remand (Docket # 8) is therefore ALLOWED and the
matter is ...