A.S. v. SmithKline Beecham Corp , 769 F.3d 204 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1229
_____________
A.S., a Minor, by Sallee Miller, Guardian;
SALLEE MILLER, Individually,
Appellants
v.
SMITHKLINE BEECHAM CORP, d/b/a GlaxoSmithKline
_____________________
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. Action No. 1-13-cv-02382)
District Judge: Honorable Christopher C. Conner
________________________
Argued: September 10, 2014
_________________________
Before: SMITH, SHWARTZ, and ROTH, Circuit Judges
(Filed: October 9, 2014)
Howard J. Bashman, Esq. [ARGUED]
Suite G-22
2300 Computer Avenue
Willow Grove, PA 19090
Counsel for Appellants
Lisa S. Blatt, Esq. [ARGUED]
Sarah M. Harris, Esq.
R. Stanton Jones, Esq.
Arnold & Porter LLP
555 Twelfth Street, N.W.
Washington, DC 20004
Andrew T. Bayman, Esq.
Robert K. Woo, Jr., Esq.
King & Spalding LLP
1180 Peachtree Street, N.E.
Atlanta, GA 30309
Jeffrey S. Bucholtz, Esq.
King & Spalding LLP
1700 Pennsylvania Avenue, N.W.
Suite 200
Washington, DC 20006
Joseph E. O’Neil, Esq.
Lavin, O’Neil, Ricci, Cedrone & DiSipio
190 North Independence Mall West
Suite 500
Philadelphia, PA 19106
Counsel for Appellee
2
________________________
OPINION
________________________
SHWARTZ, Circuit Judge.
A.S. and Sallee Miller (“Plaintiffs”) filed suit in
Pennsylvania state court against GlaxoSmithKline LLC
(“GSK”) claiming that its drug, Paxil, caused birth defects.
GSK removed the case to the United States District Court for
the Eastern District of Pennsylvania. The District Court1
remanded the case, finding that GSK was a citizen of
Pennsylvania and therefore ineligible to remove the case.
After remand, our Court decided Johnson v. SmithKline
Beecham Corp., 724 F.3d 337 (3d Cir. 2013), in which we
held that GSK was a citizen of Delaware. Within thirty days
of our decision, GSK re-removed the case. This time, the
District Court denied the motion to remand and certified its
order for interlocutory review pursuant to 28 U.S.C. §
1292(b) to allow this Court to determine the propriety of re-
removal. For the reasons set forth herein, we hold that the
second removal was untimely, and we will reverse the order
denying remand and direct that the District Court remand this
case to state court.
I
On September 30, 2011, A.S., who suffers from a
congenital birth defect, and his mother, Sallee Miller, who
1
Several district court judges entered orders in this case. We
will refer to the judges collectively as the “District Court.”
3
ingested Paxil while pregnant, sued GSK in the Philadelphia
County Court of Common Pleas. App. 82-84. The complaint
alleged that all parties were citizens of Pennsylvania. App.
53, 84-85. GSK removed the case within thirty days of
receipt of the complaint based upon diversity. On Plaintiffs’
motion, the case was consolidated with a number of other
Paxil cases before a district court judge who had previously
held that GSK was a citizen of Pennsylvania. Consistent with
that holding, the District Court remanded this case along with
the other consolidated cases to state court, holding that GSK
was a citizen of Pennsylvania and could not remove a case
from Pennsylvania state court to federal court. Patton ex rel.
Daniels-Patton v. SmithKline Beecham Corp., CIV.A. 11-
5965, 2011 WL 6210724, at *5 (E.D. Pa. Dec. 14, 2011).
The same judge also issued an opinion identical to Patton in
Maldonado ex rel. Maldonado v. SmithKline Beecham Corp.,
841 F. Supp. 2d 890 (E.D. Pa. 2011), which remanded
twenty-one other Paxil cases to state court. This case
returned to state court on January 4, 2012. A.S. v.
SmithKline Beecham Corp., 2:11-cv-6641 (E.D. Pa. Jan. 4,
2012).
On June 7, 2013, this Court issued Johnson, which
held that GSK was a citizen of Delaware. Johnson, 724 F.3d
at 360. In reaching that holding, this Court explicitly rejected
the reasoning in Patton, Maldonado, and the District Court’s
similar decision in Brewer v. SmithKline Beacham Corp.,
774 F. Supp. 2d 720, 722 (E.D. Pa. 2011).
Less than thirty days after the Johnson decision, GSK
filed a second notice of removal in this case and in eight other
cases with the same procedural posture. App. 29-48. The
various plaintiffs filed motions to remand, arguing that the
4
removal was untimely. App. 319. These motions yielded
inconsistent opinions. The first case holding that removal
was proper was Guddeck v. SmithKline Beecham Corp., 957
F. Supp. 2d 622 (E.D. Pa. 2013). In Guddeck, the District
Court noted that there was “no dispute that the parties are of
diverse citizenship” after Johnson, that the amount-in-
controversy requirement was satisfied, and that GSK was not
an in-state defendant. Id. at 623. Guddeck also held that
Johnson established that the case was “erroneously
remanded” after the first removal, Johnson “provided a new
and different ground for a second notice of removal,” and
GSK’s second “removal notice [was] simply effectuating
what was a timely and proper first removal.” Id. at 625-26.
The District Court in this case adopted Guddeck’s reasoning
and denied Plaintiffs’ motion to remand. App. 2-3.
After the rulings in Guddeck and this case, more
judges in the Eastern District weighed in. One denied remand
in two of the nine cases presenting the same issue, relying on
the reasoning in Guddeck. See M.N. v. SmithKline Beecham
Corp., No. 2:13-cv-3695-RB, Dkt. 17 (E.D. Pa. Aug. 7,
2013); I.C. v. SmithKline Beecham Corp., No. 2:13-cv-3681-
RB, Dkt. 22 (E.D. Pa. Aug. 9, 2013). Two judges disagreed
and granted the motions to remand. See Cammarota ex rel.
Hallock v. SmithKline Beecham Corp., CIV.A. 13-3677,
2013 WL 4787305 (E.D. Pa. Sept. 9, 2013), reconsideration
denied, CIV.A. 13-3677, 2013 WL 6632523 (E.D. Pa. Dec.
16, 2013); Powell ex rel. Powell v. SmithKline Beecham
Corp., CIV.A. 13-3693, 2013 WL 5377852 (E.D. Pa. Sept.
26, 2013).
After the District Court denied remand, this case was
transferred to the Middle District of Pennsylvania, where
5
Plaintiffs filed a motion to certify for interlocutory appeal the
following question: whether a defendant may remove a case a
second time based on diversity jurisdiction more than one
year after the commencement of the case? App. 4. The
District Court certified the question for appeal, which this
Court accepted pursuant to 28 U.S.C. § 1292(b).
II
This Court has jurisdiction to address not only the
certified question but “any issue fairly included within the
certified order,” Johnson, 724 F.3d at 345 (internal citations
and quotation marks omitted), and “may consider all grounds
that might require reversal of the order from which the parties
appeal.” Doe v. Am. Red Cross, 14 F.3d 196, 199 (3d Cir.
1993). Thus, this interlocutory appeal requires this Court to
determine whether removal was proper and whether the order
denying remand was correct. As this appeal raises only legal
issues, our review is de novo. Ario v. Underwriting Members
of Syndicate 53 at Lloyds for 1998 Year of Account, 618 F.3d
277, 287 (3d Cir. 2010).
III
We will first review the removal provisions at issue.
Under 28 U.S.C. § 1441(a), defendants may generally remove
civil actions from state court to federal district court so long
as the district court would have had subject-matter
jurisdiction had the case been originally filed before it.2
2
Section 1441(a) provides:
6
When a case is removable under § 1441(a), and a plaintiff
seeks remand, the plaintiff must identify a provision that
prohibits removal. Breuer v. Jim’s Concrete of Brevard, Inc.,
538 U.S. 691, 695-96 (2003). “[R]emoval statutes ‘are to be
strictly construed against removal and all doubts should be
resolved in favor of remand.’” Batoff v. State Farm Ins. Co.,
977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth.
v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.
1987)).
Plaintiffs contend that GSK’s most recent removal did
not comply with the time limits for removal set forth in 28
U.S.C. § 1446(b).3 Section 1446(b) contains two paragraphs,
the first of which provides:
The notice of removal of a civil action or
proceeding shall be filed within thirty days after
the receipt by the defendant, through service or
Except as otherwise expressly provided by Act
of Congress, 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.
28 U.S.C. § 1441(a).
3
Because this case was commenced in 2011, all citations to §
1446 are to the version in effect during 2011. Section
1446(b) was amended by the Federal Courts Jurisdiction and
Venue Clarification Act of 2011. The amended version
applies to cases commenced after January 6, 2012.
7
otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which
such action or proceeding is based, or within
thirty days after the service of summons upon
the defendant if such initial pleading has then
been filed in court and is not required to be
served on the defendant, whichever period is
shorter.
28 U.S.C. § 1446(b). The second paragraph is an exception
to the first paragraph. Id. It provides:
If the case stated by the initial pleading is not
removable, a notice of removal may be filed
within thirty days after receipt by the defendant,
through service or otherwise, of a copy of an
amended pleading, motion, order or other paper
from which it may first be ascertained that the
case is one which is or has become removable,
except that a case may not be removed on the
basis of [diversity jurisdiction] more than 1 year
after commencement of the action.
Id.Plaintiffs also claim that the order denying remand
violated 28 U.S.C. § 1447(d). That section provides that
“[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise.” 28
U.S.C. § 1447(d). Though the statutory text is ostensibly
broad in scope, the Supreme Court has not read it literally. It
has held that § 1447(d) only bars review of orders that
remand cases pursuant to § 1447(c), which addresses remand
8
based upon a lack of subject matter jurisdiction or a defect in
the removal process. Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 712 (1996) (“[O]nly remands based on grounds
specified in § 1447(c) are immune from review under §
1447(d).” (quotation marks omitted)); see also Feidt v. Owens
Corning Fiberglas Corp., 153 F.3d 124, 126 (3d Cir. 1998)
(“Section 1447(c) provides for remand on the basis of either a
procedural defect or lack of jurisdiction . . . .”). If remand
was based on either of those grounds, then review of the order
is barred under § 1447(d). Agostini v. Piper Aircraft Corp.,
729 F.3d 350, 356 (3d Cir. 2013).
For the reasons set forth herein, GSK’s re-removal is
prohibited by § 1446(b) and remand is required.
A
GSK argues that § 1446(b)’s first paragraph does not
bar its second removal because it does “not impose any time
limits on successive removals.” GSK Br. 17. While the first
paragraph does not explicitly mention successive removals, as
GSK notes, it also does not explicitly mention first removals.
Instead, it uses the general term “[t]he notice of removal,”
meaning the notice of removal by which the case came before
the district court, and it is clear that this notice of removal
must be filed within thirty days of receipt of the initial
pleading. 28 U.S.C. § 1446(b). Thus, although paragraph
one does not expressly forbid successive removals,4 it does
4
See Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009) (“The
removal statute does not categorically prohibit the filing of a
second removal petition following remand.” (quotation marks
and citations omitted)).
9
expressly forbid untimely removals. Here, the relevant notice
of removal was untimely: it was filed over a year and a half
after GSK was served with the initial pleading, namely the
state court complaint. App. 31, 46-47. Because GSK’s
second removal occurred more than thirty days after its
receipt of the initial pleading, it did not comply with the first
paragraph and GSK cannot remove on that basis.
B
The second paragraph does not relieve GSK of the first
paragraph’s bar. It is an exception to the thirty-day time limit
in the first paragraph. This paragraph sets a separate thirty-
day time limit that applies when: (1) “the case stated by the
initial pleading is not removable” and (2) the defendant
receives “an amended pleading, motion, order or other paper”
(3) from which “it may first be ascertained that the case is one
which is or has become removable.” 28 U.S.C. § 1446(b). In
diversity cases, the second paragraph has a fourth
requirement: removal may not occur “more than 1 year after
the commencement of the action.” Id. We will address the
relevant requirements in turn.
1
Even assuming the case stated by the initial pleading
was not removable, GSK also cannot rely on the second
paragraph because there was no “amended pleading, motion,
order or other paper” to trigger its thirty-day time limit. In
general, the terms “amended pleading, motion, order or other
paper” only “address[] developments within a case” and,
therefore, court decisions in different cases do not count as an
“order.” Dahl v. R. J. Reynolds Tobacco Co., 478 F.3d 965,
10
969 (8th Cir. 2007); see also Green v. R.J. Reynolds Tobacco
Co., 274 F.3d 263, 266-67 (5th Cir. 2001) (collecting cases).
This is because: (1) “[i]f Congress had intended new
developments in the law to trigger the recommencement of
the thirty day time limit, it could have easily added language
making it clear that § 1446(b) was not only addressing
developments within a case” and (2) the fact that the
documents are “listed in a logical sequence in the
development of an individual case” makes it “an unsupported
stretch to interpret ‘order’ to include a decision in a separate
case with different parties.” Dahl, 478 F.3d at 969.
Our Court has recognized a narrow exception to the
general rule that orders issued in other cases do not qualify as
a § 1446(b) “order.” In Doe v. American Red Cross, the Red
Cross removed a case on the ground that its Congressional
charter conferred federal question jurisdiction. 14 F.3d at
197-99. The district court disagreed and remanded the case.
Id. at 199. Next, the Supreme Court decided S.G. v.
American National Red Cross, 505 U.S. 247 (1992), which
held that the Red Cross’s charter conferred federal question
jurisdiction and gave the “specific and unequivocal direction
that the Red Cross [was] ‘thereby authorized to removal from
state to federal court of any state-law action it is defending.’”
Doe, 14 F.3d at 201 (quoting S.G., 505 U.S. at 248)).
The Red Cross re-removed the case within thirty days
of S.G. and plaintiffs moved to remand, arguing, among other
things, that S.G. was not an “order” under § 1446(b)’s second
paragraph. The Doe Court disagreed, holding that S.G. was
an “order,” but it included an important qualification. To
qualify as an “order” under § 1446(b), a court decision in
another case “must be sufficiently related to a pending case,”
11
meaning that: (1) “the order in the case came from a court
superior in the same judicial hierarchy”; (2) “was directed at a
particular defendant”; and (3) “expressly authorized that same
defendant to remove an action against it in another case
involving similar facts and legal issues.” Id. at 202-03. It
was this last requirement that made S.G. “unique.” Id.
According to Doe, S.G. was not “simply . . . an order
emanating from an unrelated action.” Id. at 202. Rather, it
was “an unequivocal order directed to a party to the pending
litigation, explicitly authorizing it to remove any cases it is
defending.” Id.
Johnson is no S.G. Johnson rejected the reasoning that
led to the remand of this case, as it held that GSK is a
Delaware citizen, but it did not include the explicit
authorization to remove other pending cases. Put simply,
“Johnson . . . merely affirmed” an “[order denying] remand in
the case before it.” Powell, 2013 WL 5377852, at *4.
Accordingly, Johnson does not qualify as an “order” under
Doe.
In an attempt to extend Doe, GSK cites to a pair of
non-binding cases for the proposition that this Court can
ignore Doe’s third requirement. See Green, 274 F.3d 263;
Young v. Chubb Grp. of Ins. Comp., 295 F. Supp. 2d 806(N.D. Ohio 2003). These courts held that a decision in
another case qualified as an “order” under § 1446(b) even
though the decision did “not explicitly discuss removal,”
much less specifically authorize removal in pending cases.
Green, 274 F.3d at 268; see Young, 295 F. Supp. 2d at 808.
In effect, GSK wants this Court to rely on these cases and
hold that any subsequent decision involving the same
12
defendant impacting removability is an “order” under
§ 1446(b).
Our binding precedent in Doe made clear, however,
that its ruling was narrow and meant to apply in “unique
circumstances,” namely compliance with a higher court’s
holding that explicitly authorized a particular party to remove
all of its pending cases to federal court. Doe, 14 F.3d at 202-
03. To treat all subsequent decisions involving the same
defendant as part of a specific pending case would move the
Doe rule from the “unique” to the typical.
Moreover, if a party in a pending case could re-remove
each time it received a favorable ruling in another case, re-
removal could be a means to disrupt the proceedings in the
pending case. Wilson v. Intercollegiate (Big Ten) Conference
Athletic Ass’n, 668 F.2d 962, 965 (7th Cir. 1982) (noting that
one of the purposes of removal time limits is “prevent[ing]
the delay and waste of resources involved in starting a case
over in a second court after significant proceedings . . . may
have taken place in the first court”). For these reasons, Doe is
appropriately limited to the “unique circumstances” that arose
in that case and we decline to expand the definition of “order”
to include orders entered in any case involving the same
defendant.5
Because Johnson did not explicitly direct removal of
all cases involving GSK, but only affirmed the order denying
5
This conclusion is consistent with our precedent that
removal statutes are to be strictly construed against removal.
See, e.g., Abels v. State Farm Fire & Cas. Co., 770 F.2d 26,
29 (3d Cir. 1985).
13
remand of the case, it is not an “order” that triggers a new
thirty-day time period to remove Plaintiffs’ case. For this
additional reason, the second paragraph of § 1446(b) does not
provide a basis for removal.
2
GSK is also barred from removal based upon the
second paragraph’s one-year limitation, which prohibits
removal of diversity cases more than one year after the case
commences. Here, the case commenced on September 30,
2011, and the notice of removal at issue was filed on June 26,
2013, more than a year and a half later. App. 18-19.
This one-year time limit is procedural, not
jurisdictional. Ariel Land Owners, Inc. v. Dring, 351 F.3d
611, 616 (3d Cir. 2003). For that reason, the time limit may
be equitably tolled in certain circumstances. See Tedford v.
Warner–Lambert Co., 327 F.3d 423, 428-29 (5th Cir. 2003)
(recognizing equitable tolling exception to the one-year
removal limitation); Podobnik v. U.S. Postal Serv., 409 F.3d
584, 591 (3d Cir. 2005) (holding that a non-jurisdictional time
limitation “may be modified by equitable concerns, such as
tolling”).
Equitable tolling is not warranted in this case. Cases
involving equitable tolling of the one-year time limit often
focus on intentional misconduct by the plaintiff. See e.g.,
Tedford, 327 F.3d at 428-29 (“Where a plaintiff has
attempted to manipulate the statutory rules for determining
federal removal jurisdiction, thereby preventing the defendant
from exercising its rights, equity may require that the one-
year limit in § 1446(b) be extended.”); Namey v. Malcolm,
14
534 F. Supp. 2d 494, 499 (M.D. Pa. 2008) (holding that
equitable exception to one-year limitation did not apply
because “Defendants have not met their burden of
demonstrating sufficient culpability on the part of Plaintiffs”).
At the time this case was commenced, equitable tolling also
may have been proper for reasons other than party
misconduct.6 See Vogel v. U.S. Office Prods. Co., 56 F.
Supp. 2d 859, 865 (W.D. Mich. 1999) (equitably tolling first
paragraph’s thirty-day time limit to allow re-removal where
initial removal notice “simply disappeared,” even though
plaintiffs had not “engaged in behavior which might estop
them from pursuit of remand”), rev’d on other grounds, 258
F.3d 509 (6th Cir. 2001).
While the contours of equitable tolling vary from
context to context, this Court and the Supreme Court have
held that equitable tolling may be appropriate if a litigant can
demonstrate “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)
(habeas case); Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1387, 1390 (3d Cir. 1994) (holding time limit
to file an EEOC charge may be tolled “where the plaintiff in
some extraordinary way has been prevented from asserting
his or her rights” but noting that a “plaintiff who fails to
exercise this reasonable diligence may lose the benefit of
[equitable tolling]”).
6
The current version of § 1446 specifically states that a
diversity case cannot be removed “more than 1 year after the
commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent a
defendant from removing the action.” 28 U.S.C.§ 1446 (c)(1).
15
GSK argues that “extraordinary circumstances
thwarted [its] initial removal.” GSK Br. 36. According to
GSK, the “extraordinary circumstances” were: (1) that the
remand proceedings were consolidated before a judge who
had previously held that GSK was a citizen of Pennsylvania
and therefore was likely to find that remand was proper; and
(2) that the District Court erroneously remanded the case.
Neither is an “extraordinary circumstance.” Section
137 of Title 28 provides that “[t]he business of a court having
more than one judge shall be divided among the judges as
provided by the rules and orders of the court.” This statute
“vests the district court with broad discretion in assigning
court business to individual judges.” United States v. Diaz,
189 F.3d 1239, 1243 (10th Cir. 1999). Simply put, under that
statute, litigants “do[ ] not have a right to have [their] case
heard by a particular judge,” have “no right to any particular
procedure for the selection of the judge,” and “do[ ] not enjoy
the right to have the judge selected by a random draw.”
United States v. Pearson, 203 F.3d 1243, 1256 (10th Cir.
2000) (citations and alteration omitted) (collecting cases).
Moreover, under Federal Rule of Civil Procedure 42(a),
district courts have “broad power” to consolidate cases that
share “common question[s] of law or fact.” Ellerman Lines,
Ltd. v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673, 675 (3d
Cir. 1964); see also United States v. Schiff, 602 F.3d 152, 176
(3d Cir. 2010) (holding that a district court has “broad
discretion in its rulings concerning case management”).
Applying these principles here, it is clear that GSK had
no right to have its motion decided by a particular judge nor
was it prejudiced by the assignment of this case to a judge
16
who ruled against it. The decision to consolidate the nearly-
identical cases before a judge familiar with the relevant issues
was a proper exercise of the District Court’s broad discretion.
There was nothing “extraordinary” about the decision to
consolidate the cases.
Furthermore, although the original remand decision
was wrong, an erroneous remand is not an “extraordinary
circumstance.” In fact, § 1447(d)’s prohibition on review of
remand orders “contemplates that district courts may err in
remanding cases.” Feidt, 153 F.3d at 128. A circumstance
expressly “contemplate[d]” by the statutory scheme is not
extraordinary, but is expected. Id. Moreover, as one district
court has persuasively observed, subsequent legal
developments “are precisely the sort of events that
§ 1446(b)’s one-year limitations period is designed to
preclude” from disrupting a pending case. Williams v. Nat’l
Heritage Realty Inc., 489 F. Supp. 2d 595, 597 (N.D. Miss.
2007). Otherwise, “removal issues would be subject to
constant re-litigation” as the law develops. Id.For these reasons, GSK is not entitled to equitable
tolling.
C
GSK’s final argument is that its second notice of
removal should “relate back” to the first notice of removal.
To assess this argument, we must first identify the source of a
court’s authority to relate back in this context. GSK relies on
Federal Rule of Civil Procedure 15(c). Rule 15, however,
only applies to an “amendment to a pleading.” Fed. R. Civ. P.
15(c). Rule 7(a) lists the types of “pleadings” and a notice of
17
removal is not among them. See Fed. R. Civ. P. 7(a).
Therefore, any relation back in this case must be justified—if
at all—under a court’s equitable powers. See Scarborough v.
Principi, 541 U.S. 401, 417-18 (2004) (noting that “relation
back” is an equitable doctrine that can apply outside of Rule
15 context).
GSK argues that this case “warrants the exercise of
those equitable powers.” GSK Br. 30. The reasons GSK
gives in favor of equitable relation back simply rehash its
arguments for equitable tolling and for the same reasons, they
fail. Neither the fact that a particular judge was assigned to
the case nor the error in remanding the case provide a basis
for equitable relief.
An additional reason dictates that the second notice of
removal does not relate back to the first notice of removal.
By the time GSK filed its second notice of removal, a final
order remanding the action had been filed and the case was
sent to the state court. As a result, there was nothing pending
in the federal court to which the second notice could relate.
This distinguishes the present case with those that GSK cites
as supporting relation back, such as USX Corp. v. Adriatic
Insurance Co., 345 F.3d 190 (3d Cir. 2003). In USX, the
defendant timely removed to federal court and the plaintiff
filed a motion to remand, which the district court denied. Id.
at 197. While the case was pending in federal court, the
Supreme Court issued a decision that undercut the rationale
for jurisdiction in the defendant’s notice of removal and the
plaintiff filed another motion to remand. Id. at 199-200. The
defendant offered a new explanation for jurisdiction, and the
district court denied remand based on the new explanation.
Id. On appeal, the plaintiff argued that the defendant’s new
18
argument was waived because it was not included in the
notice of removal. Id. at 200. This Court held that the
argument was not waived because the district court did not
abuse its discretion by deeming that the new argument
“amended” the notice of removal. Id. at 204-05. This was
proper, the USX Court reasoned, because the new argument
“did not add new jurisdictional facts and did not rely on a
basis of jurisdiction different from that originally alleged.”
Id. at 205. Instead, it only “amend[ed] the allegation [in the
notice of removal] in light of an intervening clarification in
the law.” Id. For support, this Court cited cases holding that
amendments to removal notices may be permitted so long as
the amendments “merely clarify (or correct technical
deficiencies in) the allegations already contained in the
original notice.” Id. at 205 n.12. The Court distinguished
USX’s situation from cases where an amendment “creat[es]
an entirely new basis for jurisdiction.” Id. at 205 n.11.
There is a critical difference between this case and
USX. In this case, GSK’s first notice of removal was not
pending but was disposed of by a final order remanding the
case to state court. See In re FMC Corp. Packaging Sys. Div.,
208 F.3d 445, 449 (3d Cir. 2000) (noting that remand orders
are final orders). That order divested the district court of
jurisdiction over the case. Hunt v. Acromed Corp., 961 F.2d
1079, 1081 (3d Cir. 1992). There was therefore nothing for
the second notice of removal to “relate back” to. In USX, by
contrast, the notice of removal was still pending and therefore
there was a notice of removal to which to relate back.
Recognizing this obvious distinction, GSK argues that
the initial notice does not need to be pending, but rather that
only the underlying case must be pending. For this
19
proposition, GSK cites to cases where courts allowed an
amended complaint to relate back to a timely, yet dismissed
complaint. These cases allowed relation back only when the
complaint was dismissed without prejudice—i.e., by a non-
final order.7 See Brennan v. Kulick, 407 F.3d 603, 607 (3d
Cir. 2005) (permitting amendment to dismissed complaint
when dismissal was without prejudice); see also Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1025 (7th Cir. 2013)
(permitting amended complaint to relate back to dismissed
complaint when dismissal was without prejudice). As a
result, each dismissal was “conditional” and the district court
“retained jurisdiction over the case” even after dismissal.
Brennan, 407 F.3d at 607. Here, the District Court’s first
remand order was final, not “conditional,” and ended the
federal case.
Moreover, once an order remanding a case is mailed to
the state court, the district court loses jurisdiction and thus
lacks the authority to allow the amendment of the notice of
removal. In Hunt, a district court remanded a case to state
court, thereby losing jurisdiction over the case. 961 F.2d at7
The one case GSK cites that involved a dismissal with
prejudice does not warrant a different view. In Donnelly v.
Yellow Freight Sys., Inc., 874 F.2d 402 (7th Cir. 1989), aff’d
on other grounds, 494 U.S. 820 (1990), the appellate court
allowed relation back to a complaint that was dismissed in
state court with prejudice. Id. at 410 n.11. The appellate
court treated the order as being without prejudice and allowed
relation back, concluding that the state order “utterly makes
no sense” because (1) it should have been a dismissal without
prejudice and (2) another state court order implied that the
plaintiff could amend her complaint. Id. at 410 & n.11.
20
1081. After remand, the defendant filed a motion to amend
its notice of removal, but this Court held that the motion to
amend was “too late” since the district court no longer had
jurisdiction over the case. Id. at 1082. The Hunt Court noted
that this result furthered “the policy underlying [§ 1447(d)],”
which is “to prevent delay in the trial of remanded cases by
avoiding protracted litigation of jurisdictional issues of
exactly the type involved here.” Id. The result should be no
different here, where GSK essentially seeks to amend its first
notice of removal with its second notice of removal.
Allowing a second notice of removal to do what a motion
could not would be an end run around both the holding in
Hunt and the policy underlying § 1447(d).
For all of these reasons, GSK’s second notice of
removal cannot relate back to the first notice of removal.8
8
Plaintiffs also contend that § 1447(d) is an alternative
ground for reversing the District Court’s denial of remand.
Specifically, Plaintiffs argue that a denial of the motion to
remand after the District Court had remanded the case was
effectively a “review” of a remand order not permitted under
§ 1447(d). Doe, however, provides that re-removals on
“different” grounds are not barred by § 1447(d). Doe, 14
F.3d at 200. Under Doe, “different” grounds include a
citation to “a new and definitive source” of authority. Id.Johnson was such “a new and definitive source” of authority.
While there are distinctions between Doe’s S.G. and this
case’s Johnson, those distinctions are only relevant to
§1446(b)’s “order” inquiry, which is distinct from § 1447(d).
Put differently, Johnson’s status as a non-“order” does not
make it any less of “a new and definitive source” of authority.
Accordingly, the second notice of removal, with its citation to
21
IV
Because GSK’s second removal was untimely under §
1446(b), we will reverse and remand with instructions that the
District Court remand this case to the Philadelphia County
Court of Common Pleas.
Johnson, set forth a “different” ground as defined in Doe.
Therefore, the District Court’s order denying remand after it
had entered an order granting remand did not run afoul of
§1447(d).
22