United States District Court, D. Oregon
Michael H. Simon, District Judge.
States Magistrate Judge Youlee Yim You issued Findings and
Recommendation in this case on May 23, 2019. ECF 57.
Magistrate Judge You recommended that the Court should
exercise its discretion and remand the claims against Johnson
& Johnson (“J&J”) to state court. For the
reasons that follow, the Court ADOPTS the Findings and
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate judge's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate judge's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate judge's findings and recommendations if
objection is made, “but not otherwise”). Although
in the absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate judge's
recommendations for “clear error on the face of the
record.” Defendants timely filed an objection (ECF 59),
to which Plaintiff responded. ECF 64. Defendants object to
the portion of Magistrate Judge You's recommendation
finding that equitable factors favor remand.
January 14, 2019, Plaintiff filed suit in Multnomah County
Court against manufacturers and distributors of
asbestos-containing talc and talcum products which Plaintiff
was exposed to and has personally used over a time period
spanning fifty years. She brings state law claims for strict
liability and negligence against J&J and a number of
co-defendants. The companies that supply J&J with talc
and talcum powder have filed for chapter eleven bankruptcy.
J&J removed this case to federal court, citing Rule 9027
of the Federal Rules of Bankruptcy Procedure and 28 U.S.C.
§§ 1334 and 1452. Section 11334(b) gives district
courts “original but not exclusive jurisdiction of all
civil proceedings arising under title 11 or arising in or
related to cases under title 11.” Section 1452 allows
for removal of any claim or cause of action to federal
district court if there is jurisdiction under section 1334.
Section 1452 also allows a district court to remand a claim
or cause of action to state court “on any equitable
ground.” 28 U.S.C. § 1452(b); Things
Remembered, Inc. v. Petrarca, 516 U.S. 124, 133 (1995).
Court has reviewed the arguments made and cases cited in
Plaintiff's memorandum of law in support of its emergency
motion to remand to state court (ECF 6) as well as
Defendants' opposition (ECF 49) and Plaintiff's reply
(ECF 52). The Court has also reviewed several, though not
all, of the 346 cases where courts have ordered or
recommended remand of cases filed by plaintiffs who have
gotten sick after using J&J's talc products. See,
e.g., Kerkhof v. Johnson & Johnson, 2019 WL 2359273,
at *4 (D. Md. June 3, 2019) (remanding on equitable grounds);
In re Removed State Court Talc Actions v. Johnson &
Johnson, 2019 WL 2191808, at *3 (C.D. Cal. May 21, 2019)
(remanding a total of 150 cases on equitable grounds); ECF
65. The Court agrees with Judge You's assessment that
equitable factors strongly favor remand. This action will
have limited effect on the pending bankruptcy proceedings of
J&J's talc suppliers and the debtors in those
proceedings are not parties in this case. Plaintiff's
right to a jury trial would be substantially prejudiced if
her case is not remanded. Her claims rest exclusively on
state law. Additionally, several co-defendants have already
been remanded to state court and judicial economy and
resources weigh against bifurcation.
Court Adopts the Findings and Recommendation (ECF 57). This
case is remanded to Multnomah County Circuit Court pursuant
to 28 U.S.C. § 1452(b).