Court Denies Talc Defendant’s Motion to Dismiss and Motion to Transfer

In Shawnee D. Douglas v. Imerys Talc America, Inc., et al., Johnson & Johnson filed a motion to dismiss for improper venue, and in the alternative, motion to transfer. This involves a plaintiff alleging that she suffers from malignant peritoneal mesothelioma as a result of her exposure to asbestos from talc-based products. The lawsuit was originally filed in the Twenty-Second Judicial Circuit, City of St. Louis. Johnson & Johnson removed the case to federal court on the grounds that diversity of citizenship exists because the only Missouri-based defendant was fraudulently joined in the action. In February 2019, the court granted the Missouri based defendant’s motion to dismiss. Thereafter, Johnson & Johnson filed its motion to dismiss for improper venue, and in the alternative, motion to transfer.

Johnson & Johnson claimed that the plaintiff had failed to satisfy the general federal venue statute, 28 U.S.C. Section 1391(b) and alleged the United States District Court for Eastern Division of Missouri was not the proper venue for the plaintiff’s claims because no properly joined defendant was a resident of Missouri, and further that the plaintiff’s claims arose out of her use of talc-based products while she resided outside the geographic boundaries of the district. Johnson & Johnson moved pursuant to Section 1406(a) 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 the plaintiff previously dismissed her claims against Johnson & Johnson and Imerys after the case was removed from Tennessee state court. The plaintiff’s response argued that Johnson & Johnson erroneously relied on Section 1391 to assert improper venue. The plaintiff argued that 28 U.S.C. Section 1441(a) was the applicable statute for venue in removal actions, which 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 the plaintiff’s case was originally filed in the Twenty-Second Judicial Circuit, City of St. Louis, the plaintiff argued it was properly removed to the district court, which included the City of St. Louis.

The district court held that 28 U.S.C. Section 1441(a), and not 28 U.S.C. Section 1391, governed the removal process. The court cited a United States Supreme Court decision which held that, “on the question of venue, Section 1391 has no application to this case because this is a removed action. The venue of removed actions is governed by Section 1441(a), and under that section venue was properly laid in [the district court embracing the place where the state action is pending].” The court further held that Section 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. Section 1441, venue in the federal court is proper.  Therefore, the court held that venue can be proper under Section 1441(a), even if venue might have been improper in the state court prior to removal. The court also referenced the applicability of 28 U.S.C. Section 1404, which states, “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” However, since Johnson and Johnson did not argue the applicability of Section 1404 in its motion, and instead focused its briefing on Section 1406, it was not permitted to make the Section 1404 argument for the first time in its reply. Therefore, the court denied Johnson & Johnson’s motion to dismiss for improper venue, and in the alternative, motion to transfer premised on Section 1406.

Only the Westlaw citation is currently available at 2019 WL 1227803.