United States District Court, M.D. Florida, Tampa Division
BRYAN A. ISA, individually and as Personal Representative of the Estate of TAMI D. ISA, Plaintiff,
JOHNSON & JOHNSON et al., Defendants.
VIRGINIA M. HERNANDEZCOVINGTON UNITED STATES DISTRICT JUDGE.
matter comes before the Court pursuant to Plaintiff Bryan A.
Isa's Motion to Remand to State Court (Doc. # 10), filed
on May 28, 2019. Defendants Johnson & Johnson and Johnson
& Johnson Consumer Inc. filed a response on June 11,
2019. (Doc. # 13). Isa filed a reply on June 28, 2019. (Doc.
# 17). For the reasons that follow, Isa's Motion is
initiated this action against the Johnson & Johnson
Defendants, Imerys Talc America, Inc., Personal Care Products
Council, and Publix Super Markets, Inc., in Florida state
court on December 8, 2017, in his personal capacity and on
behalf of his deceased wife, Tami D. Isa. (Doc. # 1-6). In
the Complaint, Isa alleges that his wife passed away from
ovarian cancer caused by the Johnson & Johnson
Defendants' baby powder and “Shower to
Shower” powder, which used talc manufactured by Imerys.
(Id. at 2, 4).
the Johnson & Johnson Defendants removed the case to this
Court on May 9, 2019, based on 28 U.S.C. §§ 1334
and 1452, which grant district courts jurisdiction over cases
“related to” pending bankruptcy actions. (Doc. #
1). According to the Johnson & Johnson Defendants, this
case is “related to” Imerys' bankruptcy in
the United States Bankruptcy Court for the District of
Delaware. (Id. at 2). The Johnson & Johnson
Defendants contend that they share insurance with Imerys and
their agreement contains indemnification and
liability-sharing provisions that are implicated by Isa's
claims. (Id. at 9). Finally, the Johnson &
Johnson Defendants allege “related to”
jurisdiction because Imerys is a party to the case. (Doc. #
13 at 4).
Johnson & Johnson Defendants note that they filed a
motion to fix venue in the District of Delaware on April 18,
2019. (Id. at 3). In that motion, they request that
the Delaware court decide the proper venue for this case (as
well as numerous other actions) and argue that these cases
should be consolidated in the Delaware court. (Id.).
Indeed, 28 U.S.C. § 157(b)(5) specifies that “the
district court in which the bankruptcy case is pending”
is responsible for determining whether a personal injury tort
or wrongful death case should proceed in “the district
court in which the bankruptcy case is pending, or in the
district court in the district in which the claim
arose.” 28 U.S.C. § 157(b)(5).
contends that, despite this language, the case should be
remanded to state court for the following reasons: the
Johnson & Johnson Defendants' notice of removal is
defective and untimely, this Court lacks subject-matter
jurisdiction, and that either mandatory abstention or
permissive abstention on equitable grounds applies. (Doc. #
10 at 3-4). The Johnson & Johnson Defendants have
responded in opposition. (Doc. # 13). Isa filed a reply on
June 28, 2019 (Doc. # 17), and the Motion is ripe for review.
first issue to consider in this case is whether the Johnson
& Johnson Defendants' removal was timely. Because the
removal was not timely, this Court grants Isa's Motion on
Johnson & Johnson Defendants removed this case pursuant
to 28 U.S.C. § 1452 which states:
A party may remove any claim or cause of action in a civil
action other than a proceeding before the United States Tax
Court or a civil action by a governmental unit to enforce
such governmental unit's police or regulatory power, to
the district court for the district where such civil action
is pending, if such district court has jurisdiction of such
claim or cause of action under section 1334 of this title.
Section 1334 states: “the district courts shall have
original but not exclusive jurisdiction of all civil
proceedings arising under title 11, or arising in or related
to cases under title 11.” 28 U.S.C. § 1334(b).
Neither of these statutes mention a timeframe by which the
removal must be completed.
argues that the 30-day deadline for removal based on receipt
of an “other paper” under 28 U.S.C. §
1446(b)(3) applies. (Doc. # 10 at 5-7). Section 1446 is the
general statute governing the procedures for removal of civil
actions. If that deadline applies, the May 9, 2019 removal
was untimely because the Johnson & Johnson Defendants
were served with the suggestion of bankruptcy by Imerys in
the Florida state court action on February 14, 2019, which
triggered the 30-day deadline to remove. (Doc. # 10 at 2).
Johnson & Johnson Defendants argue that Section 1446 does
not apply, instead arguing that Federal Rule of Bankruptcy