United States District Court, W.D. Pennsylvania
Hornak, Chief District Judge.
REPORT AND RECOMMENDATION ECF Nos. 5 &
Pupo Lenihan United States Magistrate Judge
respectfully recommended that Plaintiff's Emergency
Motion to Remand to State Court and Abstention (ECF No. 5) be
granted and that the case be remanded to the Court of Common
Pleas of Allegheny County, Pennsylvania. It is also
recommended that Plaintiff's Motion for Hearing (ECF No.
12) be denied as moot.
before the Court is Plaintiff Rosemarie Shook's
(“Plaintiff” or “Shook”) Emergency
Motion to Remand (ECF No. 5). Defendants Johnson
& Johnson and Johnson & Johnson Consumer, Inc.
(collectively “J&J” or
“Defendants”) filed their Notice of Removal (ECF
No. 1) and Brief in Opposition to the Motion to Remand (ECF
No. 10). On July 8, 2019, Plaintiff filed a Reply Brief (ECF
No. 11) and the matter is now ripe for disposition.
February 12, 2019, Plaintiff commenced her personal injury
asbestos-related action in the Court of Common Pleas of
Allegheny County against Defendants based on her use of
Johnson & Johnson personal talc products. (ECF No. 5-5.)
Plaintiff amended her Complaint on March 11, 2019. (ECF No.
1-2.) The Amended Complaint names numerous other Defendants
including Imerys Talc America, Inc. (“Imerys”),
one of J&J's talc suppliers. (Id.) On
February 13, 2019, Imerys and two related entities filed a
petition for Chapter 11 bankruptcy in the United States
Bankruptcy Court for the District of Delaware. (ECF No. 1
April 22, 2019, J&J removed this action pursuant to 28
U.S.C. §§ 1334 and 1452, and stating as grounds for
removal that the case was “related to”
Imerys' Chapter 11 bankruptcy proceeding. (ECF No. 1
¶¶ 16-21.) This civil action is one of five (5)
similar lawsuits J&J removed to the Western District of
Pennsylvania from mid-April to early May, 2019. See
Mendicino v. Johnson & Johnson, No. 2:19-cv-448-MJH
(W.D. Pa. April 18, 2019) (motion to remand pending);
Rash v. American Talc Co., No. 1:19-cv-114-SPB (W.D.
Pa. April 22, 2019) (motion to remand pending); Herron v.
Avon Prod., Inc., No. 2:19-cv-467-NBF (W.D. Pa. April
24, 2019) (motion to remand pending); Kaufman v. Johnson
& Johnson Consumer, Inc., No. 2:19-cv-520 AJS (W.D.
Pa. May 3, 2019) (granting remand).
April 18, 2019, a few days before their removal of this
action, J&J filed a Motion to Fix Venue for Claims
Related to Imerys' Bankruptcy in the District of Delaware
(“Motion to Fix Venue”) in which it sought to
consolidate 2, 400 talc actions in the District of Delaware
on the basis that “all individual state-law personal
injury or wrongful death claims against [J&J] are
‘related to' the [Imerys'] bankruptcy . . .
.” See ECF No. 1-4 & 5. J&J later
sought to provisionally transfer 2, 400 federal and state
personal injury and wrongful death actions on an emergency
and ex parte basis pending the court's decision
on the Motion to Fix Venue. The request for provisional
transfer was denied on May 9, 2019. See In re Imerys Talc
Am., Inc., No. 19-mc-00103-MN (D. Del. May 9, 2019) (ECF
No. 11-8). An order on the Motion to Fix Venue has not yet
support of her Emergency Motion to Remand, Plaintiff argues
that this Court does not have jurisdiction over
Plaintiff's claims pursuant to 28 U.S.C § 1334 (b);
that the Court is required to remand the case due to
mandatory abstention pursuant to 28 U.S.C. § 1334
(c)(2), and that in any event, equitable remand is warranted
in this case pursuant to 28 U.S.C. § 1452(b). (ECF No. 5
at 8-31.) Plaintiff emphasizes the exigency of the motion in
that Shook was diagnosed with metastatic malignant pleural
mesothelioma in October 2018 at the age of 61, and her
condition continues to deteriorate rapidly. (ECF No. 5 at 7.)
opposition to Plaintiff's Motion to Remand, J&J urges
the Court to defer ruling on the motion until after the
District of Delaware issues an order on J&J's Motion
to Fix Venue. In the alternative, J&J argues that the
Motion should be denied because J&J properly removed this
civil action under the Federal Rules of Bankruptcy Procedure
and relevant bankruptcy statutes. Finally, J&J argues
that the United States District Court for the District of
Delaware has the sole authority to ultimately fix venue and
decide whether the action and claims against J&J asserted
in thousands of similar actions should be centrally
administered in Delaware as “related to” the
Chapter 11 cases of Imerys. (ECF No. 10 at 11-28.)
July 8, 2019, 414 cases have been remanded across the
country. (ECF No. 11-2.) Another 239 cases may be remanded
soon. See In re Motions to Remand Removed State Court
Talc Actions, Proposed Findings of Fact and Conclusions
of Law, No. 19-1692 (Bankr. D.N.J. July 2, 2019) (considering
239 motions to remand) ECF No. 11-3. J&J directs the
Court to five (5) cases where courts have expressly declined
to rule on remand and abstention until the District of
Delaware first rules ...