Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wayne Taylor and Leslie Taylor, H/W v. the Sherwin Williams Co.

March 29, 2012

WAYNE TAYLOR AND LESLIE TAYLOR, H/W,
PLAINTIFFS,
v.
THE SHERWIN WILLIAMS CO., ET AL, DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on Plaintiffs' motion to abstain and remand pursuant to 28 U.S.C. § 1334(c)(1) and § 1334(c)(2) or, alternatively, to remand pursuant to 28 U.S.C. § 1452(b), Defendants' motion for a temporary stay, and Plaintiffs' and their counsel's motion to intervene.

Background and Procedural History

Plaintiffs originally filed this personal injury action in the Superior Court of New Jersey, Camden County, Law Division on February 19, 2009 alleging that Wayne Taylor contracted acute myelogenous leukemia as the result of his exposure in New Jersey to benzene-containing products manufactured by the Defendants.*fn1 An Amended Complaint was filed in State court on or about September 16, 2009.

Apparently, prior to his September 28, 2007 diagnosis, Mr. Taylor and his wife purchased a recreational vehicle. (Leslie Taylor Dep., p. 99-100.) When Mr. Taylor could no longer work, however, Plaintiffs could no longer afford the RV. They sought a management company to find a purchaser of the RV who would take over the loan payments owed to the Bank of America. (Id., p. 101-05.) A purchaser located through the management company took possession of the RV and began to make payments to the Bank of America, but after a period of months, Bank of America stopped receiving the monthly payments. (Id.) The management company went out of business, and the purchaser of the RV could not be located. (Id.) Although Plaintiffs never recovered the RV, they retained responsibility for the debt, which they could not satisfy. Plaintiffs were also unable to pay their bills without Mr. Taylor's income.

Plaintiffs sought the assistance of a bankruptcy attorney, who Plaintiffs allege essentially sent them home with a voluminous bankruptcy petition to complete on their own. (Id., p. 109-112.) Mr. Taylor, a high school graduate with two credits of community college, testified that he did not understand any of the questions on the petition to require him to disclose that this litigation was pending. (Wayne Taylor Dep.,

p. 50-51; 693-96.)

On June 23, 2010, Plaintiffs filed a Voluntary Petition in Bankruptcy under

Chapter 7 in Maine, where they then-resided. On July 30, 2010, the Trustee of Plaintiffs' case filed a Report of No Distribution. On September 22, 2010, an Order was entered in the Bankruptcy Court granting Plaintiffs' discharge in bankruptcy as a "no-asset" case. A final decree was entered on September 27, 2010, closing the Plaintiffs' bankruptcy case and discharging the Trustee.

At some time toward the end of 2010, Plaintiffs' personal injury attorney became aware of the Plaintiffs' bankruptcy filing. Plaintiffs' counsel in this matter advised them that a mistake had been made, and they approached the bankruptcy attorney to reopen the bankruptcy case so that the petition could be amended to reflect the existence of this lawsuit. (Wayne Taylor Dep., p. 693-96; Leslie Taylor Dep., p. 109-113.) The bankruptcy attorney required payment of his fee prior to filing a petition to open the bankruptcy, but Plaintiffs could not afford to pay the entire fee so they paid the attorney in installments on December 22, 2010, January 3, 2011, and February 11, 2011. (Wayne Taylor Dep., p. 698-99; Leslie Taylor Dep., p. 111.)

On January 5, 6, and 7 and February 16, 2011, Wayne Taylor was deposed, and Leslie Taylor was deposed on February 17, 2011. Defendants argue that Plaintiffs failed to disclose the existence of their bankruptcy filing until Mr. Taylor was specifically questioned about it on February 16, 2011. (See Wayne Taylor Dep., p. 655-56.) Both Plaintiffs testified, however, that by mid-February 2011, they had paid their bankruptcy attorney $200 in three installments, in furtherance of correcting the record in their bankruptcy case. (Wayne Taylor Dep., p. 698-99; Leslie Taylor Dep., p. 111.)

Before the Plaintiffs' bankruptcy attorney reopened the case, the former trustee filed a motion to reopen the case on May 2, 2011. Because there was litigation not listed on Plaintiffs' bankruptcy petition that had to be administered, Plaintiffs' bankruptcy case in Maine was reopened on May 27, 2011.

On June 14, 2011, Defendant United States Steel Corporation removed the Plaintiffs' personal injury case to this Court pursuant to 28 U.S.C. § 1452(a)*fn2 or, alternatively, Federal Rule of Bankruptcy Procedure 9027*fn3 , claiming that this action is "related to" the Taylors' bankruptcy proceeding.*fn4 Plaintiffs do not dispute that this matter is "related to" their bankruptcy case. Thus, there is no argument that this Court does not have original jurisdiction over this matter.

Through the motion docketed at entry [11], however, Plaintiffs have asked this Court to abstain from exercising jurisdiction and remand this matter to the Superior Court of New Jersey, Camden County, Law Division pursuant to 28 U.S.C. §§ 1334(c)(1)*fn5 , 1334(c)(2)*fn6 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.