United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE
INTRODUCTION AND FACTUAL BACKGROUND
September 25, 2017, Barbara San Nicolas
(“Plaintiff”) filed this personal injury action
in the Court of Common Pleas for Richland County, South
Carolina, against Johnson & Johnson; Johnson &
Johnson Consumer Companies Inc. (“Defendants”);
Imerys Talc America, Inc. (“Imerys”); Borg-Warner
Morse Tec LLC (“Borg-Warner”); Brenntag North
America, Inc.; Brenntag Specialties, Inc.; Bristol-Myers
Squibb Company; Certainteed Corporation; Colgate-Palmolive
Company; Conopco, Inc., Cyprus Amaz Minerals Company; Daniel
International Corporation; Edelbrock Corporation; Eli Lilly
and Company; Honeywell International, Inc.; MW Custom Papers,
LLC; Parfums de Coeur, Ltd.; Pfizer, Inc.; The Proctor &
Gamble Company; Revlon, Inc.; Unilever Home & Personal
Care USA; Unilever United States, Inc.; Union Carbide
Corporation; Valeant Pharmaceuticals International
Corporation; Valeant Pharmaceuticals North America LLC;
Whittaker Clark & Daniels, Inc.; and Yves Saint Laurent
America, Inc. ECF No. 1-1 at 1-4. Plaintiff asserts that she
was exposed to asbestos contained within products
manufactured by or supplied by the parties, including Johnson
& Johnson baby powder, beginning in the 1950s. Plaintiff
alleges the exposure resulted in her contracting
mesothelioma. The case is proceeding against Defendants and
Borg-Warner solely, as the claims against the other parties
were severed in state court.
February 13, 2019, Imerys and two of its affiliates filed a
bankruptcy petition in the United States Bankruptcy Court for
the District of Delaware. ECF No. 1 at 1. On April 18, 2019,
Defendants filed a notice of removal pursuant to Rule 9027 of
the Federal Rules of Bankruptcy Procedure and 28 U.S.C.
§§ 1334 and 1452. Id. On April 23, 2019,
Defendants filed a motion to fix venue in the District of
Delaware. ECF No. 4. Defendants seek a finding that the
several thousand pending state court cases are “related
to” Imerys's bankruptcy filing and should be
transferred to the District of Delaware pursuant to 28
U.S.C.A § 1334(b), which provides that district courts
have “original but not exclusive jurisdiction of all
civil proceedings arising under title 11, or arising in or
related to cases under title 11.”
matter is now before the court on a motion to remand filed by
Plaintiff on May 10, 2019. ECF No. 16. Plaintiff argues that:
(1) the removal is untimely (2) Plaintiff's claims are
not “related to” Imerys's bankruptcy; and (3)
the court must abstain pursuant to 28 U.S.C. §
1334(c)(2). Id. at 1-3. Plaintiff filed an affidavit
in support also on May 10, 2019, and supplemental authority
in support of the motion to remand on May 13, 2019. ECF Nos.
17, 18. Defendants filed a response in opposition on May 24,
2019. ECF No. 19. Plaintiff filed a reply and an affidavit in
support of her motion on May 31, 2019. ECF Nos. 20, 21.
ANALYSIS AND DISCUSSION
court must first address whether this removal action is
timely. Contrary to the thirty-day limit set forth in 28
U.S.C. § 1446(b), Bankruptcy Rule 9027 provides that a
cause of action must be removed within ninety days of filing
a bankruptcy petition. GSL of Ill. LLC v. Pitt Penn Oil
Co., LLC, No. 09cv0571, 2009 WL 1691815, at *2 (W.D. Pa.
June 17, 2009). “[A] ‘majority' of courts [in
this District] appear to have held that the ‘time
limits stated in Bankruptcy Rule 9027 should control with
regard to Section 1452'.” Kerkhof et al. v.
Johnson & Johnson et al., No. 8:19-CV-01502-PX, 2019
WL 2359273, at *3 (D. Md. June 3, 2019)(quoting GSL of
Ill. LLC, 2009 WL 1691815 at *2; Martin v. Chrysler
Grp., LLC, No. 12-00060, 2013 WL 5308245, at *3 (W.D.
Va. Sept. 20, 2013)). The bankruptcy action in this case was
filed on February 13, 2019. This action was removed on April
18, 2019. Thus, 90 days had not passed at the time of
removal. Removal was timely.
courts are courts of limited jurisdiction. U.S. Const. art.
III, § 1. “[C]ourts [are to] construe removal
statutes narrowly, and. . . any doubts should be resolved in
favor of state court jurisdiction.” Barbour v.
Int'l Union, 640 F.3d 599, 617 (4th Cir. 2011). In
this case, the questions presented are whether the within
action is related to Imerys's bankruptcy proceeding as
contemplated by 28 U.S.C. § 1334(b), and whether equity
favors remand to state court.
support of the proposition that “related to”
jurisdiction exists, Defendants argue that there are
indemnification agreements between Defendants and Imerys,
that there are shared insurance agreements, and that there
are shared unities of interest. While there are
indemnification agreements present in this case, an
“indemnification agreement between a defendant and a
non-party bankrupt debtor does not automatically
supply the nexus necessary for the exercise of ‘related
to' jurisdiction.” Steel Workers Pension Tr. v.
Citigroup, Inc., 295 B.R. 747, 750 (E.D. Pa.
2003)(emphasis added). “Even with an indemnification
agreement, a court lacks ‘related to' jurisdiction
if the non-debtor's recovery is predicated upon the
results of a subsequent action for indemnification.”
In re W.R. Grace & Co., 412 B.R. 657, 667 (D.
Del. 2009). When there is no automatic liability for
indemnification, and a subsequent lawsuit does not require
prior determination of indemnification, there is no
“related to” jurisdiction. Id. Only
cases where indemnification arises “independent of any
additional legal actions” confer “related
to” jurisdiction. Id. More generally, claims
that serve as “mere precursor[s]” to potential
indemnification claims do not confer “related to”
jurisdiction. Pacor, Inc. v. Higgins, 743 F.2d 984,
995 (3d Cir. 1984). Discussing the potential for
indemnification or litigation regarding indemnification at
this stage is mere speculation. Imerys is not a party to this
claim; as such, Plaintiff does not seek relief from Imerys or
its bankruptcy estate. Based on the information available to
the court at this time, it does not appear that there is
related to jurisdiction.
the court notes that recommencing these cases in federal
court would result in severe injustice to Plaintiff. At the
time of removal, the parties had made significant progress in
state court, with several parties being dismissed from the
suit. A similar matter has even completed the trial
process. Furthermore, Plaintiff's “health
is rapidly declining, ” and her mesothelioma is
terminal. ECF No. 16 at 4. Because equity favors prompt
resolution in state court, this matter is remanded to the
Richland County, South Carolina Court of Common Pleas. This
decision does not affect the ability of District of Delaware
to ultimately take jurisdiction should it or a Multi District
Litigation Panel decide to do so. 28 U.S.C. §1407.
foregoing reasons, this matter is hereby
REMANDED to the Richland County Court of
Common Pleas. Defendants' motion to transfer, ECF No. 4,
is DENIED as moot.