United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Carol and Stuart Kerkhof's
Emergency Motion 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
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.
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,
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 28 U.S.C. §
157(b)(5). Id. ¶¶ 7-10.
to this action, J&J noted removal on April 19, 2019,
pursuant to 28 U.S.C. §§ 1334 and 1452, invoking
the Debtors' bankruptcy petition as
grounds. See ECF No. 1 at 1. In its Notice
of Removal, J&J also urges the Court “to defer
ruling on any motions, including any motions seeking
abstention or remand” so that the District of Delaware
may first rule on the pending venue motions. Id.
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. Id. ¶ 3. Plaintiffs assert
remand is proper on a number of grounds, including that
Defendants' Notice of Removal was untimely, that the
Court lacks subject matter jurisdiction over this action, and
equitable grounds weigh in favor of remand. Id.
Standard of Review
courts of limited jurisdiction, a federal court “may
not exercise jurisdiction absent a statutory basis.”
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005). Further, a federal court must presume
that a case lies outside its limited jurisdiction unless and
until jurisdiction has been shown to be proper.”
United States v. Poole, 531 F.3d 263, 274 (4th Cir.
2008) (citing Kokkonen v. Guardian Life Ins. Co.,
511 U.S. 375, 377 (1994)). When removal is challenged, the
defendant as the removing party bears the burden of
“demonstrating the court's jurisdiction over the
matter.” Strawn v. AT & T Mobility, LLC,
530 F.3d 293, 296 (4th Cir. 2008). Federal courts construe
removal statutes strictly and resolve all doubts in favor of
remand. See Md. Stadium Auth. v. Ellerbe Becket,
Inc., 407 F.3d 255, 260 (4th Cir. 2005).
removed this action pursuant to 28 U.S.C. §§ 1334
and 1452, arguing that the Court has original jurisdiction
over Plaintiffs' state law action by virtue of
Debtors' bankruptcy proceeding. See ECF No. 1
¶¶ 16-17. 28 U.S.C. § 1452(a) allows a party
to “remove any claim or cause of action in a civil
action . . . to the district court for the district where
such civil action is pending” if that district court
has jurisdiction under 28 U.S.C. § 1334. Section 1334,
in turn, governs bankruptcy jurisdiction and vests district
courts with “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). Accordingly, parties may remove to federal court a
state court action that is “related to” a Chapter
J&J's Motion to Stay Decision on Remand
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 28 U.S.C.
§ 157(b)(5), which provides “that personal injury
tort and wrongful death claims shall be tried in the district
court in which the bankruptcy case is pending, or in the
district court in the district in which the claim arose, as
determined by the district court in which the bankruptcy case
is pending.” Id. at 14-15. Critical to this
Court's decision, however, is that the provision on which
J&J relies “is not jurisdictional.” Stern
v. Marshall, 564 U.S. 462, 479 (2011). This means that
although the District of Delaware is conferred ...