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. # 5] filed by Plaintiffs Kristina Bradshaw,
Individually and as Anticipated Representative of the Estate
of Mary Lou Lewis, Deceased, Larry Lewis, Jr., and Stephanie
Lewis. Plaintiffs seek 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. # 10], 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.
Lou Lewis suffered from malignant mesothelioma, which led to
her death on May 20, 2018. Plaintiffs allege that this cancer
was caused by her 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.
April 23, 2018, Ms. Lewis and her husband, Larry Lewis,
filed this lawsuit against J&J, Imerys, and others in the
333rd Judicial District Court for Harris County, Texas. On
April 27, 2018, 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. After Ms. Lewis's death, her daughter
Kristina Bradshaw appeared individually and as a
representative of the estate of Ms. Lewis. Larry Lewis, Jr.
and Stephanie Lewis are also named Plaintiffs in this
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 Plaintiffs' 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. Plaintiffs 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, 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 Plaintiffs' claims against it are related to
the Imerys bankruptcy case because (1) Imerys is
contractually obligated to indemnify J&J for its
liability to Plaintiffs and for defense costs J&J incurs
in Plaintiffs' 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.