Kerkhof v. Johnson & Johnson
Kerkhof v. Johnson & Johnson
Opinion of the Court
Pending before the Court is Plaintiffs Carol and Stuart Kerkhof's Emergency *930Motion to Remand. ECF No. 15. The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court GRANTS the Kerkhofs' motion.
I. Background
In November 2014, Plaintiff Carol Kerkhof ("Mrs. Kerkhof") was diagnosed with malignant mesothelioma, a terminal cancer associated with asbestos exposure. ECF No. 15-1 at 9. On November 1, 2017, Mrs. Kerkhof and her husband, Stuart Kerkhof, filed suit in the Circuit Court for Montgomery County against a number of defendants, including Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, "J&J"). Id. ; see also ECF No. 2. Plaintiffs allege "that J&J sold talcum powder products containing asbestos and that Mrs. Kerkhof's regular use of and exposure to J&J's Baby Powder caused her to develop mesothelioma." ECF No. 15-1 at 9.
Plaintiffs also named Imerys Talc America, Inc., one of J&J's talc suppliers, as a defendant in the state court action, but the Circuit Court dismissed Imerys for lack of personal jurisdiction on April 19, 2018. Id. at 9-10. The Circuit Court also granted summary judgment in favor of all other defendants except J&J. Id. at 10. In January 2019, the Circuit Court set the case in for a two-week trial against J&J to begin on September 24, 2019. Id.
After having been dismissed from this lawsuit, Imerys Talc America, Inc. and two affiliates (collectively, "Debtors") filed a voluntary Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the District of Delaware. ECF No. 1 ¶ 1. Based on the Debtors' bankruptcy action, J&J has sought removal for over one thousand state court cases. See ECF No 1; ECF No. 1-13 at 5-298 (listing state court talc claims removed to federal courts). J&J's principle contention for the propriety of removal is that because "Debtors have historically been the exclusive supplier of cosmetic talc to J&J," the cases are properly removed as proceedings "related to the Debtors' bankruptcy." ECF No. 1 ¶ 8. On April 18, 2019, J&J also moved to transfer venue for these cases to the United States District Court for the District of Delaware so as to "centralize" in the District of Delaware pursuant to
Pertinent to this action, J&J noted removal on April 19, 2019, pursuant to
On May 6, 2019, Plaintiffs moved for remand. See ECF No. 15. Because trial is fast approaching, the Kerkhofs understandably ask for expedited consideration of the remand motion.
II. Standard of Review
As courts of limited jurisdiction, a federal court "may not exercise jurisdiction absent a statutory basis." Exxon Mobil Corp. v. Allapattah Servs., Inc. ,
III. Discussion
J&J removed this action pursuant to
A. J&J's Motion to Stay Decision on Remand
Before reaching the Kerkhofs' grounds for remand, the Court first addresses J&J's request to stay this matter until the District of Delaware rules on the Motion to Fix Venue. ECF No. 18-2 at 14-17. J&J relies on
B. Timeliness of Removal
Plaintiffs first argue that J&J's removal is untimely pursuant to
*932J&J responds that
Although courts to reach this question are split as to the applicable deadlines, a "majority" of courts appear to have held that the "time limits stated in Bankruptcy Rule 9027 should control with regard to Section 1452." GSL of ILL, LLC v. Pitt Penn Oil Co., LLC , No. 09-0571,
C. "Related To" Jurisdiction
Plaintiffs next assert that the Court lacks subject matter jurisdiction over this case, as the state law action is not "related to" the Debtors' bankruptcy case within the meaning of
In determining the existence of "related to" jurisdiction, the United States Court of Appeals for the Fourth Circuit has followed the Third Circuit's test for determining when bankruptcy and removed cases are sufficiently related. In re Celotex Corp. ,
Although indemnification agreements and shared insurance may sometimes give rise to "related to" jurisdiction, this is not always the case. Where such agreements do not automatically create liability, then related-to jurisdiction is not implicated. Pacor ,
J&J points to several agreements between itself and Debtors' predecessors as grounds for the Court to find "related to"
*933jurisdiction. See ECF No. 1-13 at 314-17. The Court cannot determine whether indemnification or shared insurance proceeds are necessarily triggered in this case. Indeed, without even a finding of liability on the underlying matter, the Court views any potential for indemnification far too speculative and hypothetical to justify the outcome that J&J seeks.
In this respect, and contrary to J&J's contentions (ECF No. 18-2 at 10 n.5), A.H. Robins Co, Inc. v. Piccinin does not compel a different result.
J&J solely argues that because Debtors were the exclusive suppliers of the talc, J&J has demonstrated a sufficiently strong relationship to confer "related to" jurisdiction. ECF No. 18-2 at 10. The Court disagrees. Debtors are no longer parties to this action, and yet the Montgomery County Circuit Court found that trial against J&J can and will proceed. Furthermore, the Kerkhofs have brought independent claims against J&J, including J&J's alleged failure to warn and negligence in testing, manufacturing, and marketing the talcum powder products which allegedly caused Mrs. Kerkhof's mesothelioma. See ECF No. 2 ¶ 56. Most, if not all, of these claims do not implicate the Debtors or depend on Debtor liability. On this record, J&J has not convinced this Court that it meets the requirements of AH Robins . Remand is therefore warranted.
D. Remand on Equitable Grounds
Alternatively, even if J&J could establish "related to" jurisdiction, the Court deems remand appropriate on equitable grounds pursuant to
(1) the effect on the efficient administration of the bankruptcy estate; (2) the extent to which issues of state law predominate; (3) the difficulty or unsettled nature of applicable state law; (4) comity; (5) the degree of relatedness or remoteness to the proceeding in the main bankruptcy case; (6) the existence of the right to a jury trial; and (7) prejudice to the involuntarily removed defendants.
In re Railworks Corp. ,
The equities here weigh heavily in favor of remand. The Kerkhofs brought claims against J&J in a Maryland court, asserting state law claims which the parties have litigated for over 18 months in that forum. J&J's notice of removal comes in the final months, if not weeks, before trial is to begin. The Kerkhofs, moreover, wish to try this case expeditiously because Mrs. Kerkhof's cancer is terminal. It is understandable, and important to this Court's consideration, that Mrs. Kerkhof maintain her trial date so that she may see this matter to the end, if her health permits.
Balanced against the Kerkhofs' significant sacrifices to maintain the current trial date, is J&J's attempt to delay and derail a trial on the merits based on Debtors' bankruptcy. This move is especially troubling when the Court is not at all convinced that a finding against J&J will interfere with the routine administration of the bankruptcy *934case. See Power Plant Entm't Casino Resort Ind., LLC v. Mangano ,
IV. Conclusion
Based on the foregoing, it is this 3rd day of June, 2019, by the United States District Court for the District of Maryland, ORDERED that:
1. Plaintiffs' Motion for Remand (ECF No. 15) BE, and the same hereby IS, GRANTED;
2. This case BE, and the same hereby IS, REMANDED to the Circuit Court for Montgomery County;
3. Copies of this Memorandum Opinion and Order shall be transmitted to the parties and the Clerk of the Court for the Circuit Court for Montgomery County, Maryland, and the Clerk of Court shall transmit the record herein to the Clerk of the Circuit Court for Montgomery County, Maryland; and
4. The Clerk shall CLOSE this case.
This action was initially removed to the United States Bankruptcy Court for the District of Maryland and was later docketed in this Court on May 20, 2019. See ECF No. 1.
Notably, J&J represented to the District of Delaware in its Motion to Fix Venue that it would be excluding any state court talc case "in which a trial is ongoing or scheduled to begin forthwith." ECF No. 1-13 at 312 n.4. In this Court's view, J&J failed to honor its representation.
The United States Court of Appeals for the Fourth Circuit has not yet decided this issue.
Reference
- Full Case Name
- Carol KERKHOF v. JOHNSON & JOHNSON
- Status
- Published