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Isa v. Johnson & Johnson

United States District Court, M.D. Florida, Tampa Division

July 11, 2019

BRYAN A. ISA, individually and as Personal Representative of the Estate of TAMI D. ISA, Plaintiff,
v.
JOHNSON & JOHNSON et al., Defendants.

          ORDER

          VIRGINIA M. HERNANDEZCOVINGTON UNITED STATES DISTRICT JUDGE.

         This 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 granted.

         I. Background

         Isa 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).

         Subsequently, 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).

         The 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).

         Isa 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.

         II. Discussion

         The 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 that basis.

         The 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.

         Isa 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).

         The Johnson & Johnson Defendants argue that Section 1446 does not apply, instead arguing that Federal Rule of Bankruptcy ...


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