A.S. v. SmithKline Beecham Corp.

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 at

7

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.

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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

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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).

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