VIRGINIA M. HERNANDEZ COVINGTON, 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.
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. (
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. (
The Johnson & Johnson Defendants note that they filed a motion to fix venue in the District of Delaware on April 18, 2019. (
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.
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:
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 Procedure 9027 applies. Rule 9027 states:
Fed. R. Bankr. P. 9027(a)(2). Under this rule, the Johnson & Johnson Defendants argue they had 90 days to remove after the order for relief in Imerys' Chapter 11 case and the removal was timely. (Doc. # 13 at 6-7)
Another court in this district has analyzed whether Section 1446(b)(3) or Rule 9027(a)(2) governs the timeline for removal in a nearly identical case.
Specifically, the
Although the Court finds that remand is appropriate on procedural grounds, the Court will also analyze some of Isa's alternative arguments for remand. Given that Imerys is a party to this case and the broad nature of "related to" jurisdiction under Section 1334(b), subject-matter jurisdiction likely exists.
But, despite the existence of "related to" jurisdiction and even if the case had been timely removed, equitable considerations would warrant remanding this case. In assessing whether "equitable grounds" exist to remand actions removed under Section 1452, courts look to a number of factors:
Looking at these factors, remand is appropriate on equitable grounds. As Isa explains in his Motion (Doc. # 10 at 22), it would be burdensome to require him to litigate this case in Delaware. While the Johnson & Johnson Defendants argues that it would be convenient for everyone involved to litigate these claims in Delaware, they fail to explain how it is convenient for Isa (a Florida resident) or his counsel to be forced to travel to Delaware to litigate a case that has been pending in Florida state court for over 18 months.
Furthermore, Isa's claims are state law claims best decided by a Florida state court because that court is most familiar with the applicable law. Also, while state law in these areas may not be unsettled, "comity counsels in favor of state-court resolution of state-law claims."
The case is remanded because the removal by the Johnson & Johnson Defendants was untimely. But, even if the removal had been timely, the case would be remanded on equitable grounds.
Accordingly, it is