Breakell v. 3M Co.

          RULING AND ORDER ON MOTION TO REMAND

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         Adam Breakell has brought claims for products liability, fraud, and premises liability in Connecticut Superior Court for monetary and punitive damages, costs, and attorney's fees from injuries allegedly suffered through exposure to certain asbestos products. Third Amended Complaint, ECF No. 1-1 (“Underlying Compl.”).

         Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively “Johnson & Johnson”), defendants in Mr. Breakell's case, removed the case from Connecticut Superior Court after another defendant, Imerys Talc America, Inc. and two affiliates (collectively “Imerys”), filed a voluntary Chapter 11 Bankruptcy petition in the United States District Court for the District of Delaware. Johnson & Johnson also filed a motion to fix venue in that court for any asbestos-related personal injury claims. Notice of Removal, ECF No. 1 (“Notice of Removal”), at ¶¶ 1, 7. Johnson & Johnson alleges that Mr. Breakell's claims are related to the pending bankruptcy action. Id. at ¶¶ 18, 28.

         Mr. Breakell has filed a motion for an emergency remand in order to have the case returned to Connecticut Superior Court. Emergency Motion to Remand, ECF No. 11 (“Mot. to Remand”).

         For the following reasons, Mr. Breakell's motion to remand is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 26, 2017, Adam Breakell sued numerous defendants for products liability, fraud, and premises liability for allegedly exposing him to asbestos, while he lived in Connecticut during periods from May 17, 1975 until 1997, approximately 2003 until approximately 2005, and approximately 2016 until November 2017. Complaint, ECF No. 11-5; Underlying Compl. at ¶ 1. Discovery has been ongoing, and the case is set for trial on September 17, 2019 in Connecticut Superior Court. Mot. to Remand at 1.

         On February 13, 2019, Imerys began Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware. Id. at 2.

         On April 18, 2019, Johnson & Johnson removed this case under 28 U.S.C. § 1334(b) and 28 U.S.C.§ 1452(b), alleging that Mr. Breakell's action is related to the Imerys bankruptcy because of contractual indemnity obligations between Johnson & Johnson and Imerys, shared insurance policies between the companies, and the fact that each Johnson & Johnson contained talc produced by Imerys. Notice of Removal at ¶¶ 7, 8, 20.

         That same day, Johnson & Johnson “filed a Motion to Fix Venue with the United States District Court for the District of Delaware, petitioning the court to transfer all talc-related state and federal actions to Delaware for resolution.” In re Johnson & Johnson, Nos. 19-cv-3531(KPF), 2019 WL 2497856, at *1 (S.D.N.Y. June 4, 2019) (citing Motion to Fix Venue for Claims, In re: Imerys Talc America, Inc. et al., No. 19-mc-00103 (D. Del. Apr. 18, 2019), Dkt No. 1)).

         On April 30, 2019, Johnson & Johnson “filed an Emergency Motion for Provisional Transfer Under 28 U.S.C. § 157(b)(5), asking the court in the District of Delaware to enter an order provisionally transferring to it all identified personal injury and wrongful death talc claims against [Johnson & Johnson], prior to ruling on [Johnson & Johnson]'s April 18 motion.” Id.

         On May 2, 2019, Mr. Breakell moved to remand the case back to state court. Mot. to Remand.

         On May 8, 2019, Johnson & Johnson filed a memorandum in opposition to Mr. Breakell's motion to remand. Memorandum in Opposition re Motion to Remand to State Court, ECF No. 19 (“Mem. in Opp. to Remand”).

         On May 9, 2019, the court in the District of Delaware denied Johnson & Johnson's Emergency Motion for Provisional Transfer. In re: Imerys Talc America, Inc. et al., No. 19-mc-00103 (D. Del. May 9, 2019), Dkt No. 34. The court found that “that J&J has not shown that it would be irreparably harmed, ” id. at 6, noting that J & J “was not a Debtor and has not established financial distress.” Id.

         Significantly, the court also noted that, “as J & J concedes, ” id., the cases could be transferred “under § 157(b) regardless of the decisions reached by state courts on transfer and remand issues, and therefore the Court is not persuaded that these proceedings should be characterized as causing an emergency.” Id. Indeed, in that court's view, J & J “created the purported emergency that it claims requires ex parte relief.” Id.

         On May 22, 2019, Mr. Breakell filed a reply to Johnson & Johnson's opposition. Reply to Response to Motion to Remand to State Court, ECF No. 21 (“Reply”).

         On July 11, 2019, the Court held a hearing regarding the pending motion to remand.

         II. ...