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Shook v. Avon Products, Inc.

United States District Court, W.D. Pennsylvania

July 16, 2019

ROSEMARIE SHOOK, Plaintiff,
v.
AVON PRODUCTS, INC., ET AL., Defendants.

          Hornak, Chief District Judge.

          REPORT AND RECOMMENDATION ECF Nos. 5 & 12

          Lisa Pupo Lenihan United States Magistrate Judge

         I. RECOMMENDATION

         It is 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.

         II. REPORT

         A. Facts

         Presently 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.

         On 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 ¶ 1.)

         On 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).

         On 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 been issued.

         In 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.)

         In 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.)

         As of 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 ...


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