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Douglas v. Imerys Talc America, Inc.

United States District Court, E.D. Missouri, Eastern Division

March 15, 2019

SHAWNEE D. DOUGLAS, Plaintiff,
v.
IMERYS TALC AMERICA, INC., f/k/a LUZENAC AMERICAN, INC., JOHNSON & JOHNSON CONSUMER, NC., f/k/a MCNEIL-PPC, INC., METROPOLITAN LIFE INSURANCE COMPANY, and PTI UNION, LLC, Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Johnson & Johnson Consumer Inc.'s ("Johnson & Johnson")[1] Motion to Dismiss for Improper Venue or, in the Alternative, Motion to Transfer. (ECF No. 34) The motion is fully briefed and ready for disposition. After careful consideration, the Court denies Johnson & Johnson's motion.

         BACKGROUND

         As previously explained in the Court's Memorandum and Order of February 14, 2019 (ECF No. 59), Plaintiff alleges she suffers from malignant peritoneal mesothelioma as a result of her exposure to asbestos from use of talc-based products. She initially filed this lawsuit alleging strict liability, negligence, wilful and wonton misconduct, and conspiracy in Missouri state court in the Twenty-Second Judicial Circuit, City of St. Louis. Plaintiff named Johnson & Johnson, Imerys Talc America, Inc.'s ("Imerys"), Metropolitan Life Insurance Company ("MetLife"), and PTI Union, LLC ("PTI Union") as defendants.[2] Johnson & Johnson removed the case to federal court on the grounds that diversity of citizenship exists because, inter alia, the only Missouri-based Defendant, PTI Union, was fraudulently joined in this action.

         On February 14, 2019, the Court denied Plaintiff Shawnee D. Douglas's Motion to Remand and granted Defendant PTI Union's Motion to Dismiss. (ECF No. 59) Thereafter, the Court amended the parties' briefing schedule as to Defendant Imerys Motion to Dismiss for Lack of Personal Jurisdiction (ECF No. 20) and Johnson & Johnson's Motion to Dismiss (ECF No. 34). On February 25, 2019, Imerys filed a Notice of Suggestion of Pendency of Bankruptcy and Automatic Stay of Proceedings. (ECF No. 62) Pursuant to 11 U.S.C. § 362(a), the case was automatically stayed. On March 4, 2019, Plaintiff filed a Notice of Dismissal without Prejudice as to Imerys only. (ECF No. 69) The Court hereby grants Plaintiffs dismissal of her claims against Imerys only, which lifts the stay in the case.

         DISCUSSION

         In Johnson & Johnson's Motion to Dismiss for Improper Venue or, in the Alternative, Motion to Transfer and accompanying Memorandum of Law in Support, it argues the Court should dismiss the case because venue is improper in this district. Johnson & Johnson contends Plaintiff has failed to satisfy the requirements of the general federal venue statute, which provides in relevant part:

A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). Johnson & Johnson claims this district is not the proper venue for Plaintiffs claims because no properly joined defendant is a resident of Missouri and Plaintiffs claims arise out of her use of talc-based products while she resided outside the geographic boundaries of this district. Accordingly, Johnson & Johnson moves, pursuant to § 1406(a), [3] for the Court to dismiss the case or transfer it to a district that would be a proper venue, such as the Eastern District of Tennessee - which is where Plaintiff previously dismissed her claims against Johnson & Johnson and Imerys after the case was removed from Tennessee state court.

         In response, Plaintiff argues Johnson & Johnson erroneously relies on § 1391 to assert venue is improper in this district. Rather, 28 U.S.C. § 1441(a) is the applicable statute for venue in removal actions. Section 1441 (a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Because Plaintiffs case was originally filed in the Twenty-Second Judicial Circuit, City of St. Louis, Plaintiff argues it was properly removed to this district, which includes the City of St. Louis. See 28 U.S.C. § 105(a)(1).

         Precedent clearly supports Plaintiffs position. In Polizzi v. Cowles Magazines, Inc.,345 U.S. 663, 666 (1953), the Supreme Court held that, "on the question of venue, [§] 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by [§] 1441(a), and under that section venue was properly laid in [the district court embracing the place where the state action is pending]." Furthermore, § 1406 "applies only to cases 'laying venue in the wrong division or district.' When a case has been removed to the district court for the area in which the state action was pending pursuant to 28 U.S.C. § 1441, venue in the federal court is proper and not 'wrong.'" Schoberlein v. Westrux Int'l, Inc., No. 2:13-CV-04079, 2013 WL 12155465, at *5 (W.D. Mo. June 18, 2013) (quoting § 1406). Consequently, venue can be proper under § 1441(a) even if venue might have been improper in the state court prior to removal. Id.; see also Becker v. Ford Motor Co., No. 4:07CV1573 FRB, 2007 WL ...


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