United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
product liability case is before the Court on the Motion for
Remand [Doc. # 6] filed by Plaintiff David Cochran. Plaintiff
seeks remand because (1) the removal was untimely, (2) the
Court lacks subject matter jurisdiction; (3) if there is
jurisdiction, mandatory abstention applies; or (4) if
mandatory abstention does not apply, equitable considerations
warrant remand. Defendants Johnson & Johnson and Johnson
& Johnson Consumer Inc. (collectively,
“J&J”) filed an Opposition [Doc.# 13],
arguing that the Court has subject matter jurisdiction
pursuant to 28 U.S.C. § 1334(b) because the lawsuit is
“related-to” the bankruptcy case filed by a
former co-defendant. J&J argues also that removal was
timely and that abstention is not appropriate.
Court has carefully reviewed the full record and the
applicable legal authorities. Based on that review, the Court
concludes that it lacks subject matter jurisdiction over this
dispute. As a result, the Court
grants the Motion for Remand and
remands this case to the 11th Judicial
District Court of Harris County, Texas.
suffers from malignant mesothelioma. Plaintiff alleges that
this cancer was caused by his exposure to asbestos in talc
used in J&J's baby powder and other companies'
talcum powders. Imerys Talc America, Inc.
(“Imerys”) supplied talc for J&J's baby
December 10, 2018, Plaintiff filed this lawsuit against
J&J, Imerys, and others in the County Court at Law for
Dallas County, Texas. On January 3, 2019, the case was
transferred to the multidistrict litigation case, In re:
Asbestos Litigation, Cause No. 2019-00401, in the 11th
Judicial District Court of Harris County, Texas.
February 13, 2019, Imerys filed a Chapter 11 bankruptcy
petition in the United States Bankruptcy Court for the
District of Delaware. On February 15, 2019, Imerys was
dismissed as a defendant in Plaintiff's lawsuit.
April 19, 2019, J&J filed a Notice of Removal [Doc. # 1].
J&J asserted in the Notice of Removal that the case was
removable pursuant to 28 U.S.C. § 1452 as related to the
Imerys bankruptcy case. Plaintiff filed a timely Motion to
Remand, which has been briefed and is ripe for decision.
STANDARD FOR MOTION TO REMAND
United States Supreme Court has “often explained that
‘[f]ederal courts are courts of limited
jurisdiction.'” Home Depot U.S.A., Inc. v.
Johnson, __ U.S. __, 139 S.Ct. 1743');">139 S.Ct. 1743, 1745 (May 28, 2019)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)); Rasul v. Bush, 542 U.S.
466, 489 (2004); Gonzalez v. Limon, 926 F.3d 186,
188 (5th Cir. 2019). “‘They possess only that
power authorized by Constitution and statute, which is not to
be expanded by judicial decree.'” Rasul,
542 U.S. at 489 (quoting Kokkonen, 511 U.S. at 377);
Gonzalez, 926 F.3d at 188. The court “must
presume that a suit lies outside this limited jurisdiction,
and the burden of establishing federal jurisdiction rests on
the party seeking the federal forum.” Id.
(quoting Howery v. Allstate Ins. Co., 243 F.3d 912,
916 (5th Cir. 2001)); Settlement Funding, L.L.C. v. Rapid
Settlements, Limited, 851 F.3d 530, 537 (5th Cir. 2017).
28, United States Code, § 1452 allows removal of claims
where federal jurisdiction arises under 28 U.S.C. §
1334. See 28 U.S.C. § 1452(a); In re TXNB
Internal Case, 483 F.3d 292, 298 (5th Cir. 2007).
Section 1334(b) grants federal jurisdiction over proceedings
that are “related to” cases arising under Title
11, the Bankruptcy Code. See 28 U.S.C. §
1334(b); In re TXNB Internal Case, 483 F.3d at 298.
The Fifth Circuit reads “this jurisdictional grant
broadly, stating that the test for whether a proceeding
properly invokes federal ‘related to' jurisdiction
is whether the outcome of the proceeding could conceivably
affect the estate being administered in bankruptcy.”
Id. (citing Arnold v. Garlock, Inc., 278
F.3d 426, 434 (5th Cir. 2001)). “Certainty is
unnecessary; an action is ‘related to' bankruptcy
if the outcome could alter, positively or negatively, the
debtor's rights, liabilities, options, or freedom of
action or could influence the administration of the bankrupt
estate.” Id. (citing Feld v. Zale Corp.
(In re Zale Corp.), 62 F.3d 746, 752 (5th Cir. 1995)).
argues that Plaintiff's claims against it are related to
the Imerys bankruptcy case because (1) Imerys is
contractually obligated to indemnify J&J for its
liability to Plaintiff and for defense costs J&J incurs
in Plaintiff's lawsuit; (2) there is “shared
insurance between J&J and [Imerys] which threatens to
deplete the pool of assets in the estate available for
creditors”; and (3) there exists a unity of identity
between Imerys and J&J.