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Cochran v. Johnson & Johnson

United States District Court, S.D. Texas, Houston Division

July 16, 2019

DAVID COCHRAN, Plaintiff,
v.
JOHNSON & JOHNSON, et al., Defendants.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         The 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.[1] As a result, the Court grants the Motion for Remand and remands this case to the 11th Judicial District Court of Harris County, Texas.

         I. BACKGROUND

         Plaintiff 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 powder.

         On 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.

         On 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.

         On 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.

         II. STANDARD FOR MOTION TO REMAND

         The 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).

         Title 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)).

         III. ANALYSIS

         J&J 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.

         A. Contrac ...


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