UNITED STATES BANKRUPTCY COURT 

SOUTHERN DISTRICT OF FLORIDA

__________________________________ 

 ) Adv. Pro. Nos. 

In re: ) 19-01103, 19-01105, 

 ) 19-01106, 19-01110, 

EIGHT ADVERSARY PROCEEDINGS ) 19-01129, 19-01130, 

REMOVED FROM STATE COURT BY ) 19-01132, and 19-01133 

JOHNSON & JOHNSON ) 

 ) 

MEMORANDUM DECISION ON DEFENDANTS’ 

MOTIONS TO STAY AND PLAINTIFFS’ MOTIONS TO REMAND 

 Johnson & Johnson and certain affiliated companies 

(collectively “J&J”) are defending over 2,400 personal injury and 

wrongful death actions. The Plaintiffs claim that a talcum product 

sold by J&J contained asbestos which caused cancer, specifically 

mesothelioma or ovarian cancer. 

 On February 13, 2019, Imerys Talc America, Inc., Imerys Talc 

Vermont, Inc., and Imerys Talc Canada, Inc. (collectively “Imerys”) 

filed chapter 11 petitions in the District of Delaware (the “Imerys 

ORDERED in the Southern District of Florida on July 2, 2019.

Robert A. Mark, Judge

United States Bankruptcy Court

_____________________________________________________________________________

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 1 of 12
2 

Bankruptcy Case”). Imerys supplied all or virtually all of the talc 

used in J&J’s products after 1978. 

 In April 2019, J&J began filing notices of removal in personal 

injury and wrongful death cases removing the cases to the federal 

court. J&J’s theory is that all of the claims against it are 

“related to” the Imerys Bankruptcy Case and are therefore subject 

to bankruptcy jurisdiction under 28 U.S.C. § 1334, and removal under 

28 U.S.C. § 1452(a). J&J’s factual premise for related to 

jurisdiction is discussed later in this opinion. The notices of 

removal include the notices of removal filed by J&J commencing the 

eight adversary proceedings in this Court that are the subject of 

this opinion (the “Notices of Removal”). 

 On April 18, 2019, in conjunction with the notices of removal 

it filed here and around the country, J&J filed a motion in the 

Imerys Bankruptcy Case styled as a Motion to Fix Venue for Claims 

Related to Imerys’ Bankruptcy Under 28 U.S.C. § 157(b)(5) and 1333(b) 

(the “Venue Motion”). Through the Venue Motion, J&J seeks to 

consolidate all of the removed cases in the Delaware District Court. 

The Motions for Stay 

and Motions for Remand 

 J&J filed its eight Notices of Removal between April 18, 2019 

and May 7, 2019. Plaintiffs filed motions to remand (the “Motions 

to Remand”) between May 6, 2019 and May 11, 2019. J&J filed its 

Motions to Stay Temporarily All Proceedings (the “Motions to Stay”) 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 2 of 12
3 

on May 23, 2019 and May 28, 2019. The Court entered scheduling 

orders on the motions and each party filed memoranda.1

 The Court conducted a hearing on the Motions to Stay and Motions 

to Remand on June 24, 2019. As announced at the conclusion of the 

hearing, and for the reasons discussed below, the Motions to Stay 

will be denied and the Motions to Remand will be granted. The Court 

will enter Orders on the motions in each of the individual adversary 

proceedings. 

Discussion

 Counsel representing the Plaintiffs in all eight of these 

proceedings advised the Court that 408 of the cases that J&J removed 

around the country have already been remanded back to state court.2 

J&J conceded at the June 24th hearing that only a few courts have 

granted its motions to stay and acknowledged that not a single court 

has denied motions for remand. 

 This Court’s review of the facts and law leads to the same 

conclusion. The Court finds no cause to stay these proceedings, and 

the facts strongly support a decision to equitably remand these 

proceedings back to the state court. Given the breadth of opinions 

already published, the Court will not engage in a lengthy analysis 

but will review and discuss the key issues. 

 

1 The docket entries of the Motions to Remand, Motions to Stay and memoranda are 

referred to in the eight individual orders entered in conjunction with this 

opinion. 

2 A list of 346 remand orders is attached to Plaintiff’s Reply Memorandum in 

Support of Plaintiff’s Motion to Remand [DE# 19 in 19-1103, Ex. 1]. 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 3 of 12
4 

J&J has not established 

cause to stay these proceedings

 J&J argues that this Court should defer consideration of the 

Motions to Remand until the District Court in Delaware rules on the 

Venue Motion. There is no reason to do so. First, this Court has 

previously held that the court to which an action is removed should 

consider the jurisdictional issues raised in remand motions before 

considering motions to transfer venue to the district where the 

underlying bankruptcy case is pending. Lennar Corp. v. Briarwood 

Capital LLC, 430 B.R. 253, 260-61 (Bankr. S.D. Fla. 2010); E.S. 

Bankest, LLC. v. United Beverage Florida, LLC (In re United 

Container, LLC), 284 B.R. 162, 166 (Bankr. S.D. Fla. 2002). 

 In both Lennar and United Container, this Court addressed the 

issue of whether, upon removal, the court must first rule on a motion 

to remand or whether it should consider first a motion to transfer 

venue. Like in this case, the defendants in United Container and 

Lennar removed state court cases to this Court under 28 U.S.C. 

§ 1452(a), asserting that the state court cases were “related to” 

bankruptcy cases pending in another federal court. Plaintiffs moved 

to remand the cases to state court, and defendants moved to transfer 

venue to the “home courts” presiding over the bankruptcy cases. This 

Court reasoned that when a case is removed under 28 U.S.C. § 1452(a), 

“the court to which such claim or cause of action is removed has the 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 4 of 12
5 

authority to remand such a claim” under § 1452(b). Lennar, 430 B.R. 

at 261. 

 Similarly, in this case, this Court must hear the Plaintiffs’ 

Motion for Remand first, as it is consistent with its jurisdictional 

gatekeeper role. The statutes at issue have two fundamentally 

different roles. While Congress gives the home court in a bankruptcy 

case the ability to fix the venue of certain claims under 28 U.S.C. 

§ 157(b)(5), it provides the court to which a case is removed the 

power to remand such a case under 28 U.S.C. § 1452(b). Thus, before 

venue issues are considered, this Court’s duty as gatekeeper is to 

first decide whether the case was properly removed or whether it 

should be remanded to state court. 

 In Lennar and United Container, the motions to transfer venue 

were brought under the change of venue authority in 28 U.S.C. 

§ 1412. Here, the Venue Motion in play is brought under 28 U.S.C. 

§ 157(b)(5). That section provides that the “home” bankruptcy court 

shall determine whether personal injury 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.” J&J argues that this section gives the District Court 

in Delaware the authority to transfer all of the removed cases to 

that court. 

Arguably, 28 U.S.C. § 157(b)(5) only applies to personal injury 

and wrongful death claims against a debtor, not claims against a 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 5 of 12
6 

non-debtor, like J&J, that may be “related to” a bankruptcy case. 

A.H. Robbins v. Piccinin, 788 F.2d 994, 1011 (4th Cir. 1986). 

However, even if “related to” claims against a non-debtor are within 

the scope of 28 U.S.C. § 157(b)(5), § 157(b)(5) is still just a 

venue provision. 

In this Court’s view, the Venue Motion itself is premature 

until it is first determined whether the bankruptcy court has 

jurisdiction over the claims and, if so, whether jurisdiction should 

be exercised. Thus, where personal injury or wrongful death cases 

are remanded after removal, there is no venue decision to be made 

under § 157(b)(5). 

There is a second reason for denying the Motions to Stay. While 

awaiting final briefing and a decision on the Venue Motion, J&J 

filed an emergency motion in the District of Delaware on April 30, 

2019, entitled Emergency Motion for Provisional Transfer Under 28 

U.S.C. § 157(b)(5) (the “Emergency Provisional Transfer Motion”) [DE 

#12 and 13 in Case 1:19-MC-00103-MN]. That motion requested an 

order directing the provisional transfer to the District of Delaware 

of the approximately 2,400 federal and state personal injury and 

wrongful death cases pending against J&J. Presumably, this was 

J&J’s effort to stop the various courts around the country from 

considering the pending remand motions. 

The strategy failed. On May 9, 2019, the Delaware District 

Court entered a Memorandum Opinion [DE #34] denying the Emergency 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 6 of 12
7 

Provisional Transfer Motion. The court found that J&J failed to 

establish that provisional transfer was warranted. 

The Court interprets the District Court’s order as giving it a 

green light to consider the Motions to Remand without waiting for 

that court to rule on the Venue Motion. For these reasons, the 

Motions to Stay will be denied. 

Even if there is related to jurisdiction, these 

proceedings should be remanded back to the state courts

Removal of these cases was proper under 28 U.S.C. § 1452(a) 

only if the federal court has jurisdiction under the bankruptcy 

provisions in 28 U.S.C. § 1334. That section grants jurisdiction 

over “all civil proceedings arising under title 11 or arising in or 

related to cases under title 11” (emphasis added). The state court 

claims against J&J did not arise under the Bankruptcy Code nor did 

they arise in the Imerys Bankruptcy Case. Therefore, subject matter 

jurisdiction exists, if at all, under the “related to” 

jurisdictional grant. 

The Eleventh Circuit has expressly adopted the “related to” 

jurisdictional test expounded by the Third Circuit in Pacor v. 

Higgins, 743 F.2d 984, 994 (3d Cir. 1984), where the Court stated 

The usual articulation of the test for 

determining whether a civil proceeding is 

related to bankruptcy is whether the outcome of 

that proceeding could conceivably have any 

effect on the estate being administered in 

bankruptcy. Thus, the proceeding need not 

necessarily be against the debtor or against 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 7 of 12
8 

that debtor’s property. An action is related 

to bankruptcy if the outcome could alter the 

debtor’s rights, liabilities, options, or 

freedom of action (either positively or 

negatively) and which in any way impacts upon 

the handling and administration of the 

bankruptcy estate. 

See In re Toledo, 170 F.3d 1340, 1345 (11th Cir. 1999) (citing In 

re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir. 1990). 

 J&J argues that related to jurisdiction exists here based on 

contractual indemnifications contained in its supply agreements with 

Imerys. J&J also argues that the Imerys bankruptcy estate will be 

impacted by the outcome of these cases, because there are shared 

insurance policies covering claims against both Imerys and J&J and 

arguably, claims paid to cover J&J liability or defense costs will 

deplete the coverage available to Imerys. 

 This Court finds that J&J’s related to claims are thin. J&J 

can pursue indemnification claims in the Imerys Bankruptcy Case 

regardless of where the underlying tort claims against J&J are tried. 

Moreover, the factual record is not fully developed with respect to 

the insurance policies. These facts have led some courts to find 

that J&J has not established related to jurisdiction. See e.g., 

Holman v. Johnson & Johnson, 600 B.R. 611-15 (Bankr. N.D. Ill. 2019) 

(undertaking a lengthy analysis and rejecting J&J’s arguments for 

related to jurisdiction); Nicolas v. Johnson & Johnson, No. 3:19-

cv-01153-MBS, 2019 WL 2482380, at *2 (D. S.C. June 14, 2019) (“When 

there is no automatic liability for indemnification and a subsequent 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 8 of 12
9 

lawsuit does not require prior determination of indemnification, 

there is no ‘related to’ jurisdiction.”); Kaufman v. Johnson & 

Johnson Consumer, Inc., 19cv0520, 2019 WL 2297556, at *3 (W.D. Pa. 

May 30, 2019). Another court has “strongly questioned whether 

Johnson & Johnson has carried its burden of demonstrating ‘related 

to’ jurisdiction.” O’Riorden v. Johnson & Johnson, 19-cv-10751-

ADB, 2019 WL 2371782, at *2 (D. Mass. June 5, 2019). For purposes 

of this Order, this Court will assume that related to jurisdiction 

exists, albeit barely, because even if jurisdiction exists, the 

facts compel remand. 

 Pursuant to 28 U.S.C. § 1452(b), this Court has discretion to 

remand cases removed under 28 U.S.C. § 1452(a) “on any equitable 

ground.” Courts have identified various factors relevant to 

determining whether to equitably remand cases.3 In the O’Riorden

decision, cited earlier, the court listed the following factors: 

(1) the effect of the action on the 

administration of the bankruptcy estate; (2) the 

extent to which issues of state law predominate; 

(3) the difficulty of applicable state law; (4) 

comity; (5) the relatedness or remoteness of the 

action to the bankruptcy case; (6) the existence 

of a right to a jury trial; and (7) prejudice 

to the party involuntarily removed from state 

court. 

O’Riorden, 2019 WL 237182 at *2. 

 

3 The factors are generally the same as those analyzed in deciding motions for 

permissive abstention under 28 U.S.C. § 1334(c)(1). Lennar Corp. v. Briarwood 

Capital LLC, 430 B.R. 253, 267 (Bankr. S.D. Fla. 2010). 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 9 of 12
10 

 As noted earlier, every court that has considered a motion for 

equitable remand has granted the motion. The uniform result is not 

surprising, because consideration of these factors strongly supports 

remand. First, the outcome of these cases against J&J will have 

little impact on the efficient administration of the Imerys 

Bankruptcy Case. Notably, neither Imerys, as debtor-in-possession, 

nor any committee of creditors in the Imerys Bankruptcy Case has 

joined J&J in support of removal or, to this Court’s knowledge, 

filed papers in support of J&J’s Venue Motion. And, prior to the 

June 24th hearing, J&J had not even filed a claim in the Imerys 

Bankruptcy Case. J&J obviously believes it will be more efficient 

for it to defend all 2,400 cases in a single forum, but it is the 

efficient administration of the Imerys Bankruptcy Case that matters, 

not the cost and convenience to J&J. 

 Second, these wrongful death and personal injury cases allege 

purely state law claims. Third, while state law in these areas may 

not be unsettled, “comity counsels in favor of state-court 

resolution of state-law claims.” O’Riorden, 2019 WL 2371782 at *2 

(quoting Fed. Home Loan Bank of Boston v. Ally Fin., Inc., 2012 WL 

769731 at *4 (D. Mass. Mar. 9, 2012)). 

 As discussed earlier, the arguments for related to jurisdiction 

are thin. Thus, a fourth factor strongly supporting remand is the 

slight, if any, degree of relatedness of these J&J lawsuits to the 

Imerys Bankruptcy Case. Finally, removal of these cases and the 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 10 of 12
11 

prospect of trial in the District of Delaware will undoubtedly 

prejudice the plaintiffs. First, although it is difficult to predict 

the timing of trials, it is likely that several of these cases will 

get to trial sooner in state court here in Florida than they would 

in the federal district court in Delaware. Second, the cost and 

inconvenience to the Plaintiffs of litigating in Delaware will far 

exceed the cost of litigating the claims against J&J in state court. 

Finally, in any state court case in which Plaintiffs have sued 

parties other than J&J, Plaintiffs would face the prospect of two 

trials, since only the claims against J&J were removed. In short, 

these proceedings can and should be remanded back to state court. 

Conclusion

 J&J is facing the expensive prospect of defending 2,400 

personal injury and wrongful death cases filed all over the country. 

The talc subject of all or most of these claims was supplied by 

Imerys who is now in bankruptcy. While it is conceivable that the 

outcome of the J&J cases may have some effect on the Imerys 

Bankruptcy Case, the Court finds compelling reasons to abstain from 

exercising jurisdiction and to instead remand the cases back to 

state court. 

 This Memorandum Decision will be docketed in each of the eight 

above-listed adversary proceedings, and the Court will enter an 

Order in each proceeding denying the Motion to Stay and granting the 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 11 of 12
12 

Motion to Remand. 

### 

COPIES TO: 

Daniel J. Di Matteo, Esq. 

The Ferraro Law Firm, P.A. 

600 Brickell Avenue – Suite 3800 

Miami, FL 33131 

(Counsel for the Plaintiffs in all eight proceedings) 

Alexandra D. Blye, Esq. 

Carlton Fields Jordan Burt, P.A. 

525 Okeechobee Blvd. – Suite 1200 

West Palm Beach, FL 33401 

(Counsel for Johnson & Johnson in Adv. Nos. 19-1103, 19-1105, 

19-1106 and 19-1110) 

Ashley P. Hayes, Esq. 

Shook Hardy & Bacon LLP 

100 N. Tampa Street – Suite 2900 

Tampa, FL 33602 

(Counsel for Johnson & Johnson in Adv. Nos. 19-1129, 

19-1130, 19-1132 and 19-1133) 

John M. Lyons, Esq. 

2001 Market Street – Suite 3000 

Philadelphia, PA 19103 

(Co-counsel for Johnson & Johnson in Adv. Nos. 19-1129, 

19-1130, 19-1132 and 19-1133) 

Case 19-01105-RAM Doc 18 Filed 07/02/19 Page 12 of 12