United States District Court, E.D. California
MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE
the present lawsuit, Plaintiff Douglas Strobel seeks damages
for the terminal mesothelioma he claims to have contracted as
a result of his use of and exposure to talcum products
manufactured and/or distributed by Defendants
Colgate-Palmolive and Johnson & Johnson. Strobel and his
wife, Plaintiff Jo Ann Strobel (hereinafter
“Plaintiffs”) commenced their action by filing a
complaint in the Solano County Superior Court on March 21,
2019. Thereafter, on May 1, 2019, Defendant Johnson &
Johnson (“Johnson”) removed Plaintiffs'
lawsuit to this Court pursuant to 28 U.S.C. §1452(a),
arguing that federal jurisdiction under 28 U.S.C. §
1334(b) is present because Plaintiffs' claims are
“related to” Chapter 11 bankruptcy proceedings
filed by a talcum supplier, Imerys Talc America, Inc.
(“Imerys”), in Delaware on February 13, 2019.
Imerys is not a defendant in Plaintiffs' lawsuit.
now move to remand their action back to the originating state
court, arguing that federal jurisdiction is lacking because
the necessary relation between their case and the Imerys
bankruptcy proceedings is lacking. Alternatively, Plaintiffs
claim that this court should abstain from exercising
jurisdiction in any event under 28 U.S.C. § 1334(c), and
argue that equitable remand under 28 U.S.C. § 1452(b) is
argues, for its part, that this Court should, at the very
least, refrain from addressing Plaintiffs' Motion until a
pending Johnson's Motion to Fix Venue for Claims Related
to Imerys' Bankruptcy, which it filed on April 18, 2019
in the United States District Court for the District of
Delaware, has been adjudicated. Through that Motion, Johnson
asks that the Delaware District Court assume the handling of
removed personal injury/wrongful death claims stemming from
talcum powder use/exposure as “related to” the
bankruptcy proceedings already pending in Delaware.
Consequently, Johnson's goal is to have this case, and
roughly 2, 400 others, removed from state to federal court
and thereafter transferred to Delaware for disposition.
court of limited jurisdiction, it is incumbent on this Court
to initially establish whether the exercise of its
jurisdiction is proper in the first instance. See In re
Asbestos Litig., No. 01-1790-PA, 2002 WL 649400 (D. Or.
Feb. 1, 2002) at *2 (the court has a “primary and
independent duty to determine its own subject matter
U.S.C. § 1452(a) allows the removal of bankruptcy
related claims, stating that a party may “remove any
claim or cause of action in a civil action to the district
court for the district where such action is pending” is
the district court has jurisdiction of the claim or cause of
action under 28 U.S.C. § 1334. § 1334(b), in turn,
vests district courts with “original but not exclusive
jurisdiction of all civil proceedings arising under title 11
or arising in or related to cases under title 11.”
argues that this Court has “related to”
jurisdiction under 28 U.S.C. § 1334(b) because (1)
pursuant to various supply agreements, Imerys must defend and
indemnify against Plaintiffs' claims' (2) Imerys has
sought coverage under shared insurance policies with Johnson
for expenses incurred in defending other talc-related
lawsuits; and (3) there accordingly is a unity of interest
between the two companies. As the Defendant seeking removal,
Johnson bears the burden of establishing federal
jurisdiction. Scott v. Breeland, 792 F.2d 925, 927
(9th Cir. 1986). Courts have long recognized a “strong
presumption against removal jurisdiction.” Gaus v.
Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992).
view of this Court, Johnson cannot establish jurisdiction on
the basis of non-party Imerys' possible indemnification
or defense obligations. As another court has already
determined when confronted with this same issue, the
determination of any such liability will likely require
separate litigation, apart and distinct from and irrelevant
to these Plaintiffs' claims against Johnson alone.
See June 19, 2019 Order in Honor v. Johnson
& Johnson, No. 1-19-cv-10760-RWZ, p.3, attached as
Ex. B. to the Decl. of Richard M. Grant in Support of Reply,
ECF No. 17-1 (citing 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 another judge has also noted with respect to any
indemnification obligations owed by Imerys in this instance,
such obligations are both “hotly disputed” and
“surely not automatic.” Rivera v. Johnson
& Johnson, 19-cv-10747-LTS, ECF No. 29 at p. 4 (D.
Mass. May 31, 2019).
unavailing is Johnson's contention that jurisdiction
exists because of Imerys' alleged right to shared
insurance with Johnson. That issue is also disputed and
likely to be the subject of protracted litigation apart from
Plaintiffs' lawsuit. Finally, Johnson has failed to
establish a sufficient unity of interest between it and
Imerys such that Imerys is the real part defendant. See
id. (quoting A.H. Robins Co. v. Piccinin, 788
F.2d 994, 999 (4th Cir. 1986).
Court consequently concludes that it lacks subject matter
jurisdiction in this matter and remands on that
basis. Even were jurisdiction to be present,
however. The Court may still exercise its discretion to
remand the action to state court. Once a claim has been
removed pursuant to 28 U.S.C. § 1452(a), the court to
which the claim has been removed “may remand such claim
or cause of action on any equitable ground.” 28 U.S.C.
§ 1452(b). The “any equitable ground”
standard under § 1452(b) is an unusually broad grant of
authority. As such it “subsumes and reaches beyond all
of the reasons for remand under nonbankruptcy removal
statutes” and “is committed to the sound
discretion of the . . . judge.” McCarthy v. Prince, 230
B.R. 414, 417 (B.A.P. 9th Cir. 1999). The assessment of
whether equitable grounds exist for remand implicates a
number of factors:
Those factors have included, among other things, judicial
economy, comity and respect for state law decision-making
capabilities, the impact that remand would have upon the
orderly administration of the debtor's bankruptcy case,
the effect of bifurcating claims and parties to an action and
the possibilities of inconsistent results, the predominance
of state law issues and nondebtor parties, and the extent of
any prejudice to nondebtor parties.
In re TIG Ins. Co., 264 B.R. 661, 665-66 (Bankr.
S.D. Cal. 2001) (citing W. Helicopters, Inc. v. Hiller
Aviation, Inc., 97 B.R. 1, 2 (E.D. Cal. 1988)).
“Because Section 1452(b) affords ‘an unusually
broad grant of authority,' any one of the relevant
factors may provide a sufficient basis for equitable
remand.” Stichting Pensioenfonds ABP v. Countrywide
Fin. Corp., 447 B.R. 302, 310 (C.D. Cal. 2010) (quoting
In re Roman Catholic Bishop of San Diego, 3734 B.R.
756, 761 (Bankr. S.D. Cal. 2007)).
Court believes that equitable grounds support remand of the
instant matter. Plaintiffs, who are California residents,
commenced their lawsuit in state court. Forcing Plaintiffs to
litigate their claims in a distant forum (i.e., the District
of Delaware) would be inequitable. States cases of this
nature have already been the subject of coordinated
proceedings with hundreds of other actions in state court
where other plaintiffs claim that talcum powder exposure
resulted in personal injury and wrongful power. See
Judicial Council Coordination Proceedings, No. 4872. Such
coordination may help to both promote efficiency and avoid
inconsistent rulings, with such considerations weighing in
favor of this Court exercising its discretion in remanding
this matter on equitable grounds.
because Plaintiffs assert only California state law claims in
this matter, comity also favors remand. See Estate of
Scott v. Cervantes, No. CV 08-03293 MMM (CWx), 2008 WL
11337657 at * 4 (CD. Cal. July 29, 2008) “Where issues
of state law predominate, comity . . . favors
remand.”); see also McCarthy v. Prince, 230
B.R. 414, 418 (BAP. 9th Cir. 1999) (“State courts are,
by definition, fully competent to resolve disputes governed
by state law.”); W. Helicopters v. Hiller
Aviation, 97 ...