In Re Flonase Antitrust Litigation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-1124 & 16-3019

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IN RE: FLONASE ANTITRUST LITIGATION

Smithkline Beecham Corporation, d/b/a GlaxoSmithKline;

n/k/a GlaxoSmithKline LLC, including GlaxoSmithKline,

PLC,

Appellant

________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 2-08-cv-03301)

District Judge: Honorable Anita B. Brody

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Argued June 7, 2017

Before: CHAGARES, GREENAWAY, JR., and

VANASKIE, Circuit Judges.

(Opinion Filed: December 22, 2017)

Lisa S. Blatt [ARGUED]

R. Stanton Jones

Sarah M. Harris

Robert Leider

Sally L. Pei

Arnold & Porter LLP

601 Massachusetts Ave., NW

Washington, DC 20001

Stephen J. Kastenberg

Burt M. Rublin

Jessica M. Anthony

Ballard Spahr LLP

1735 Market St., 51st Fl.

Philadelphia, PA 19103

Counsel for Appellant

Richard A. Samp

Mark S. Chenoweth

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

Counsel for Amicus Appellants National

Association of Manufacturers and Washington

Legal Foundation

2

William S. Consovoy

Thomas R. McCarthy

Carmeron T. Norris

Consovoy McCarthy Park

3033 Wilson Blvd, Suite 700

Arlington, VA 22201

Kate Comerford Todd

Steven P. Lehotsky

Janet Galeria

U.S. Chamber Litigation Center

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus Appellant Chamber of

Commerce of the United States of America

Cary Silverman

Shook Hardy & Bacon

1155 F Street, NW, Suite 200

Washington, DC 20004

H. Sherman Joyce

Lauren Sheets Jarrell

American Tort Reform Association

1101 Connecticut Ave., NW Suite 400

Washington, DC 20036

Counsel for Amicus Appellant American Tort

Reform Association

3

Bart D. Cohen

Nussbaum Law Group PC

570 Lexington Ave., 19th Floor

New York, NY 10022

John Alden Meade [ARGUED]

Young Cotter & Meade

909 Poydras St., Suite 1600

New Orleans, LA 70112

Counsel for Appellee

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OPINION

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GREENAWAY, JR., Circuit Judge.

In this case, SmithKline Beecham Corporation, doing

business as GlaxoSmithKline (“GSK”), seeks to enforce a

court-approved settlement agreement and enjoin the State of

Louisiana, through its Attorney General, from bringing

allegedly released claims against GSK in the Louisiana state

courts. Louisiana protests this enforcement action on the

theory that the Eleventh Amendment to the Constitution of the

United States bars its involuntary inclusion in the settlement

agreement.

To resolve this dispute, we must answer two questions:

First, does a motion for approval of a class action settlement

qualify as a suit against a state for Eleventh Amendment

purposes if the requested settlement agreement enjoins a state

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from suing in a state court? Second, if the Eleventh

Amendment does cover this motion for settlement approval,

may GSK avoid the Eleventh Amendment’s prohibition by

showing that Louisiana waived its sovereign immunity? We

find that the Eleventh Amendment covers this motion and that

GSK may not avoid its bar.

In addition to this claim, GSK asserts that the District

Court abused its discretion in denying Rule 60(b) relief from a

final judgment. We find this argument unavailing. On these

two grounds, we will affirm.

I.

On July 14, 2008, private indirect purchasers of

Flonase, a brand-name prescription drug, sued GSK in the

United States District Court for the Eastern District of

Pennsylvania. They alleged that: (a) GSK had filed sham

citizen petitions with the Food and Drug Administration to

delay the introduction of a generic version of Flonase, and (b)

this delay forced the private indirect purchasers to pay more

for Flonase than they would have if the generic version were

available. The private indirect purchasers sued on behalf of

themselves and a class of other indirect purchasers. For the

purpose of the case at bar, two motions matter.

First, in the primary suit, the private indirect purchasers

moved for final approval of settlement on April 1, 2013, after

the District Court had certified the class, and had approved of

the notice to settlement class members. The State of Louisiana,

an indirect Flonase purchaser, qualified as a potential class

member but did not receive the approved notice. Instead, it

only received a Class Action Fairness Act (“CAFA”) Notice.

This notice, “serve[d] upon the appropriate State official of

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each State in which a class member resides,” included: (1) “a

copy of the complaint,” (2) “notice of any scheduled judicial

hearing in the class action,” (3) “any proposed or final

notification to class members,” (4) “any proposed . . . class

action settlement,” and (5) an estimate of the number of class

members in each state. 28 U.S.C. § 1715(b) (2012). The notice

includes this information because Congress “designed [this

notice requirement] to ensure that a responsible state and/or

federal official receives information about proposed class

action settlements and is in a position to react if the settlement

appears unfair to some or all class members or inconsistent

with applicable regulatory policies.” S. Rep. No. 109–14, at

31 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 32. It made

clear, however, that state officials “will not be required” to “get

involved.” Id. at 33.

The requested court order “permanently enjoined” all

members of the settlement class, including Louisiana, from

bringing released claims against GSK, even in Louisiana’s

state court. Pls.’ Mot. Final Approval Settlement and Plan

Allocation, Award Att’ys’ Fees, Reimbursement Expenses and

Incentive Awards Named Pls. at 9-10, In re Flonase Antitrust

Litig., No. CV 08-3301, 2015 WL 9273274 (E.D. Pa. Dec. 21,

2015), ECF No. 574 [hereinafter Motion for Final Approval of

Settlement Plan]. The proposed settlement agreement, among

other things, provided compensation to the plaintiffs and class

members, released the plaintiffs’ and class members’ claims,

“reserv[ed] exclusive and continuing jurisdiction over the

Settlement and this Settlement Agreement” for the District

Court, and gave GSK the power to enforce the settlement.

App. 98–107. On June 19, 2013, the District Court approved

the final settlement.

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Second, in the ancillary suit, GSK filed a motion to

enforce the settlement agreement against the Louisiana

Attorney General because, according to GSK, Louisiana

violated the settlement agreement. In its motion, GSK argued

that “Louisiana did not opt-out of the Settlement Class, and

thus is bound by the release and covenant not to sue provisions

in the Settlement Agreement and Final Order and Judgment.”

App. 314. As a result, GSK “respectfully submit[ted] that this

Court should enjoin the Louisiana Attorney General from

further pursuit of claims that were encompassed by the

settlement in this litigation.” App. 315.

On December 21, 2015, the District Court for the

Eastern District of Pennsylvania denied this request and

dismissed the case. It held that the Eleventh Amendment

covered this enforcement action because, pursuant to the

Eleventh Amendment, “a State retains the autonomy to choose

‘not merely whether it may be sued, but where it may be

sued.’” App. 12 (citing Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 99 (1984)). See also App. 14 (“Even

though some of Louisiana’s claims fall within the Settlement

Agreement, I cannot enjoin Louisiana unless the State has

waived its sovereign immunity and consented to this Court’s

jurisdiction.”). It then held that “Louisiana’s receipt of the

CAFA Notice is insufficient to unequivocally demonstrate that

the State was aware that it was a class member and voluntarily

chose to have its claims resolved by the Settlement

Agreement.” App. 17.

Shortly before the District Court decided GSK’s motion

to enjoin Louisiana’s state court action, GSK moved pursuant

to Rule 60(b)(2) for Relief from a Judgment or Order because

of newly discovered evidence that a third party had allegedly

submitted a settlement claim on behalf of Louisiana. On May

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31, 2016, the District Court denied this motion. GSK appealed

the December 21 and May 31 orders.

II.

Because we review the District Court’s final decisions,

we exercise jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291. “Dismissal of an action based upon sovereign

immunity is subject to plenary review by this Court.” Blanciak

v. Allegheny Ludlum Corp., 77 F.3d 690, 694 (3d Cir. 1996).

“We review the denial of Rule 60(b) relief for an abuse of

discretion.” Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 269

(3d Cir. 2002).

III.

The District Court: (a) properly granted Louisiana’s

Motion to Dismiss, (b) appropriately denied GSK’s Motion to

Enforce Class Settlement, and (c) did not abuse its discretion

in denying GSK’s Rule 60(b) motion. As a result, we will

affirm.

This case turns on whether the District Court exercised

jurisdiction over Louisiana in the primary suit. A private party

may bring a suit against a state official to enforce a settlement

agreement despite the Eleventh Amendment. Frew ex rel.

Frew v. Hawkins, 540 U.S. 431, 440 (2004). To enforce a

settlement agreement, a private party must draw upon a federal

court’s ancillary jurisdiction. Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 379–80 (1994). “Ancillary jurisdiction may

extend to claims having a factual and logical dependence on

the primary lawsuit, but that primary lawsuit must contain an

independent basis for federal jurisdiction.” Peacock v.

Thomas, 516 U.S. 349, 355 (1996) (internal quotation marks

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and citation omitted). As a result, GSK may not draw upon the

District Court’s powers of ancillary jurisdiction unless the

District Court properly exercised jurisdiction over the State in

approving the settlement agreement. In approving the

settlement agreement, the District Court lacked jurisdiction

over the State because the Eleventh Amendment applies to the

primary case and because Louisiana did not waive its sovereign

immunity in that case.

A.

The Eleventh Amendment applies to the primary suit.

The Eleventh Amendment provides that “[t]he Judicial power

of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const. amend. XI.

The Supreme Court has defined a “suit” as “the

prosecution, or pursuit, of some claim, demand, or request” and

regarded “commenced or prosecuted” as follows: “By a suit

commenced by an individual against a State, we should

understand process sued out by that individual against the

State, for the purpose of establishing some claim against it by

the judgment of a Court; and the prosecution of that suit is its

continuance.” Cohens v. Virginia, 19 U.S. 264, 407–08

(1821). “[A] suit is against the sovereign if the judgment

sought would expend itself on the public treasury or domain,

or interfere with the public administration, or if the effect of

the judgment would be to restrain the Government from acting,

or to compel it to act.” Pennhurst State Sch. & Hosp., 465 U.S.

at 102 n. 11 (1984) (internal quotation marks and citation

omitted) (emphasis added).

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In Missouri v. Fiske, the Supreme Court found that the

Eleventh Amendment applied to a motion to enjoin a state from

suing in its own court. 290 U.S. 18, 26 (1933). The Supreme

Court came to this conclusion because the Eleventh

Amendment covers claims that seek equitable remedies and

because the private party’s motion to enjoin the State from

suing in its own court qualified as a suit that sought an

equitable remedy. Id. at 27.

Like the private parties in Fiske, the private parties here

sought an equitable remedy against a State. In their motion for

final approval of settlement, the private indirect purchasers

asked the District Court to order that “all members of the

Settlement Class[, including Louisiana,] . . . are hereby

permanently enjoined” from bringing any of the released

claims against GSK “in any state or federal court . . . .” Motion

for Final Approval of Settlement Plan at 9–10. Because Fiske

held that the Eleventh Amendment covers a motion to enjoin a

state from suing in its own court and because the motion for

final settlement approval sought to enjoin Louisiana from

suing in its own court, the Eleventh Amendment covers the

motion for final approval of settlement at issue here.

Procedurally, Fiske differs from the case at bar in two

respects. Neither distinction, however, undermines Fiske’s

utility or applicability. First, the States played a different role

in each claim. In Fiske, the private parties sought an injunction

against a state that acted as an intervening defendant. 290 U.S.

at 23–24. Here, private parties sought an injunction against a

state that acted as an absent class member.

This distinction between the States’ procedural titles

does not make Fiske less useful. The Supreme Court has

instructed us to focus on the nature of the claim’s requested

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relief, as opposed to the “mere names of the titular parties,” In

re New York, 256 U.S. 490, 500 (1921), and, “in the context of

lawsuits against state and federal employees or entities,” the

Supreme Court has ruled that “courts should look to whether

the sovereign is the real party in interest to determine whether

sovereign immunity bars the suit.” Lewis v. Clarke, 137 S. Ct.

1285, 1290 (2017). To make this decision, “courts may not

simply rely on the characterization of the parties in the

complaint, but rather must determine in the first instance

whether the remedy sought is truly against the sovereign.” Id.

at 1290. If we must look beyond “the characterization of the

parties in the complaint” and, instead, scrutinize the requested

remedy’s effects to ensure that it does not infringe upon an

unnamed sovereign’s immunity, we should surely adopt the

same approach here when considering whether a claim

implicates the rights of a state acting as an absent class

member. Id.

Second, the private parties sought equitable relief in

different types of motions. In Fiske, the private parties filed an

“ancillary and supplemental bill of complaint,” Fiske, 290 U.S.

at 24, and requested “the equitable remedy of injunction

against the state.” Id. at 27. Here, the private parties asked for

the approval of a settlement agreement in which the state was

“hereby permanently enjoined . . . .” Motion for Final

Approval of Settlement Plan at 9.

The specific name of the vessel requested to carry the

injunction does not distinguish Fiske from the case at bar. The

Supreme Court has acknowledged a consent decree’s

hybridity. On the one hand, “[a] consent decree no doubt

embodies an agreement of the parties and thus in some respects

is contractual in nature.” Rufo v. Inmates of Suffolk Cty. Jail,

502 U.S. 367, 378 (1992). On the other hand, “it is an

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agreement that the parties desire and expect will be reflected

in, and be enforceable as, a judicial decree that is subject to the

rules generally applicable to other judgments and decrees.” Id.

Because of this ambiguity, the Supreme Court has established

a rule to determine whether a settlement agreement carries the

force of federal law and has held that a settlement agreement

becomes enforceable federal law when it: (a) receives a federal

court’s approval, (b) “springs from a federal dispute,” and (c)

“furthers the objectives of federal law.” Hawkins, 540 U.S. at

438.

As GSK concedes, this settlement agreement “was

functionally a consent decree” that “federal courts may

enforce.” Appellant’s Br. at 35. As a result, Fiske applies

even though the private parties in Fiske requested an injunction

in the form of a court order—as opposed to in the form of a

court approved settlement agreement.

Another court of appeals has come to a similar

conclusion, albeit in a slightly different situation. In Thomas

v. FAG Bearings Corp., the Eighth Circuit found that “the

Eleventh Amendment bars involuntary joinder of” a state

because “[i]nvoluntary joinder will compel [the state] to act by

forcing it to prosecute [a private party] at a time and place

dictated by the federal courts.” 50 F.3d 502, 505 (8th Cir.

1995). The Eighth Circuit supported its conclusion by noting

that “[p]ermitting coercive joinder also undermines the two

aims of the Eleventh Amendment: protection for a state’s

autonomy and protection for its pocketbook.” Id. at 506.

According to our sister circuit, a contrary ruling would

undermine the Amendment’s aims by: (a) allowing a private

party to waive a state’s sovereign immunity, and (b)

compelling “[p]remature litigation [that] potentially limits the

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costs [the state] can recover.” Id. These same concerns

motivate our decision today.

GSK preemptively questions our holding by citing three

Supreme Court cases that held that the Eleventh Amendment

did not cover a private party’s suit involving a state. In the first

case, Cohens, the Supreme Court held that the Eleventh

Amendment did not cover a criminal defendant’s appeal from

a state court to the Supreme Court of the United States on a

writ of error. 19 U.S. at 407–08. In the second case, California

v. Deep Sea Research, Inc., the Supreme Court found that the

Eleventh Amendment did not apply to an in rem complaint

over a sunken ship that the State of California claimed as its

own after the private party filed the in rem suit. 523 U.S. 491,

496 (1998). In the third case, Tennessee Student Assistance

Corp. v. Hood, the Supreme Court held that the Eleventh

Amendment did not apply to discharge orders in in rem

bankruptcy proceedings even though a state agency had

guaranteed the allegedly dischargeable loan. 541 U.S. 440,

449 (2004).

In addition to these Supreme Court cases, GSK relies on

three sister circuit cases that held that motions to remove or

transfer did not implicate the Eleventh Amendment. Cal. ex

rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 845, 848 (9th Cir.

2004) (observing that “Cohens counsels strongly that removal

does not constitute the commencement or prosecution of a suit”

and holding that “a state that voluntarily brings suit as a

plaintiff in state court cannot invoke the Eleventh Amendment

when the defendant seeks removal to a federal court of

competent jurisdiction”); Okla. ex rel. Edmondson v. Magnolia

Marine Transp. Co., 359 F.3d 1237, 1240 (10th Cir. 2004)

(“We hold that the State may not assert its Eleventh

Amendment immunity to preclude defendants’ removal of the

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tort action it brought against them in its own courts.”); Regents

of the Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1565

(Fed. Cir. 1997) (finding “that the Eleventh Amendment does

not deprive the Indiana district court of jurisdiction in this

case” because “it does not involve any claim or counterclaim

against [the state] that places [the state] in the position of a

defendant”).

We distinguish these Supreme Court and sister circuit

cases from the case at bar because none of the private parties

in the cases cited by GSK sought legal or equitable remedies

against the State. Indeed they sought a writ of jurisdiction that

“acts only on the record,” Cohens, 19 U.S. at 410, a removal

notice that was not “dissimilar” from a writ of jurisdiction,

Dynegy, 375 F.3d at 845,1 a transfer motion that “does not

involve any claim or counterclaim against” the State, Eli Lilly

& Co., 119 F.3d at 1565,2 an in rem admiralty action where the

“the possession of the” sovereign was not “invaded under

process of the court,” Deep Sea Research, 523 U.S. at 507, and

an in rem bankruptcy determination not “seeking to recover

1

GSK unsuccessfully sought to remove Louisiana’s state court

case to the United States District Court for the Middle District

of Louisiana. Ruling and Order, Louisiana v. SmithKline

Beecham Corp., No. 15-cv-00055 (M.D. La. Feb. 4, 2015),

ECF No. 38. As GSK’s counsel conceded at Oral Argument,

this issue is not before us.

2

While the removal notice was pending in the Middle District

of Louisiana, GSK futilely tried to transfer the case from the

Middle District of Louisiana to the Eastern District of

Pennsylvania. Louisiana v. SmithKline Beecham Corp., No.

15-cv-00055, (M.D. La. Feb. 4, 2015), ECF No. 36.

14

property in the State’s hands,” Hood, 541 U.S. at 441–42. As

a result, we conclude that the Eleventh Amendment applies

here.

B.

The Eleventh Amendment prevented the District Court

from issuing an injunction against Louisiana because

Louisiana did not waive its sovereign immunity. A suit may

avoid the Eleventh Amendment’s broad prohibition in three

ways. “First, Congress may authorize such a suit in the

exercise of its power to enforce the Fourteenth Amendment—

an Amendment enacted after the Eleventh Amendment and

specifically designed to alter the federal-state balance. Second,

a State may waive its sovereign immunity by consenting to

suit.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S. 666, 670 (1999) (internal citation

omitted). Third, a private party may sue a state official to

prevent the official from violating federal law. Ex parte Young,

209 U.S. 123, 159–60 (1908). GSK argues that Louisiana

waived its sovereign immunity. We disagree.

The State of Louisiana did not waive its sovereign

immunity by receiving a CAFA notice and by failing to oppose

the settlement based on that notice. A state waives its

immunity “if the State makes a ‘clear declaration’ that it

intends to submit itself to our jurisdiction.” Coll. Sav. Bank,

527 U.S. at 675–76 (citation omitted). The law “requir[es] a

‘clear declaration’ by the State of its waiver” to ensure “that

the State in fact consents to suit” and because “there is little

reason to assume actual consent based upon the State’s mere

presence in a field subject to congressional regulation.” Id. at

680.

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In College Savings Bank, a private party sued a state for

infringing upon a patent. Id. at 671. The private party argued

that the Eleventh Amendment did not bar the suit because the

State “constructively waived its immunity from suit by

engaging in the voluntary and nonessential activity . . . after

being put on notice by the clear language of the [Act] that it

would be subject to . . . liability for doing so.” Id. at 680. The

Supreme Court rejected this argument and found that the State

did not voluntarily consent to federal jurisdiction by engaging

in “voluntary and nonessential activity” because “[t]here is a

fundamental difference between a State’s expressing

unequivocally that it waives its immunity and Congress’s

expressing unequivocally its intention that if the State takes

certain action it shall be deemed to have waived that

immunity.” Id. at 680–81.

In Lapides v. Board of Regents of University System of

Georgia, the Supreme Court applied this test and came to a

different conclusion. 535 U.S. 613, 620 (2002). In that case,

a private party sued a state official and the State removed the

case to federal court. Id. Once in federal court, the state

claimed sovereign immunity. Id. The Court observed that

College Savings did “require[] a ‘clear’ indication of the

State’s intent to waive its immunity” and held that “[t]he

relevant ‘clarity’ here must focus on the litigation act the State

takes that creates the waiver. And that act—removal—is

clear.” Id.

In light of College Savings Bank and Lapides, Louisiana

did not clearly indicate its intent to waive its sovereign

immunity in the primary suit. It received a CAFA notice. That

notice may not “impose any obligations, duties, or

responsibilities upon . . . State officials.” 28 U.S.C. § 1715(f).

After it received this notice, it did not act, in its capacity either

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as a litigant, as was the case in Lapides, or as a market

participant, as was the case in College Savings Bank. As a

result, we reject GSK’s argument and hold that Louisiana did

not waive its sovereign immunity in the primary suit by merely

receiving a CAFA notice and failing to act.

GSK attempts to refute this argument in three ways. We

find none of them persuasive. First, it attempts to distinguish

College Savings Bank by arguing that College Savings Bank

announced “the test for whether States consented to federal

jurisdiction by enacting statutes or otherwise engaging in non-

litigation conduct that Congress specified would abrogate

immunity” and that Lapides “governs whether a State’s

litigation conduct waives immunity.” Appellant’s Reply at 18.

This argument lacks merit because the Court decided Lapides

and College Savings Bank under the same rule. Indeed, in

Lapides, the Court observed that College Saving Bank

“required a ‘clear’ indication of the State’s intent to waive its

immunity” and concluded that, in Lapides, “that act—

removal—is clear.” Id. at 620.

Second, GSK argues that “Louisiana cites no authority

suggesting that only affirmative litigation acts can waive

immunity.” Appellant’s Reply at 19. This characterization

misconstrues Louisiana’s argument. Louisiana does not argue

that only affirmative litigation acts can waive immunity.

Instead, it argues that a state cannot waive its immunity merely

by receiving notice and failing to act. Appellee’s Br. at 23

(“Sovereign immunity . . . requires something more than

silence or inaction before a state can be bound by a federal

proceeding.”). This distinction matters because, as explained

above, College Savings supports the State’s actual position.

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Third, GSK asserts, without citation, that “it does not

follow that sovereign immunity must afford States more

protection against becoming absent class members than what

ordinary litigants receive under Rule 23.” Appellant’s Reply

at 19. It reasons that States should not receive more protection

because “States are far more sophisticated than ordinary

litigants, and understand the significance of litigation conduct

far better.” Id. at 19. This argument misses the point. The

Constitution requires more protections for States than for

ordinary litigants not because of their sophistication but

because of their status as sovereigns. P.R. Aqueduct & Sewer

Auth., v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (“The

Amendment is rooted in a recognition that the States, although

a union, maintain certain attributes of sovereignty, including

sovereign immunity.”). Analogizing states to private parties

and comparing their respective sophistication ignores this

justification. As a result, we find that Louisiana did not waive

its sovereign immunity when it received a CAFA notice and

failed to act.

C.

The District Court did not abuse its discretion in

denying GSK’s Rule 60(b) motion. In its briefing before the

District Court, GSK expressed its belief that another

organization could have filed a claim on behalf of the State of

Louisiana. Because of this suspicion, it asked the claims

administrator to inform GSK of any claims submitted on

Louisiana’s behalf. The claims administrator refused and cited

its commitment to confidentiality to justify its decision. After

the District Court had denied GSK’s motion to enforce the

settlement agreement, GSK learned that an organization,

Humana, had submitted a claim on behalf of Louisiana. Based

on this information, GSK then moved pursuant to Rule 60(b)

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on the theory that it had discovered new evidence. The District

Court denied this motion.

The District Court did not abuse its discretion in

denying this motion. A “court may relieve a party or its legal

representative from a final judgment, order, or proceeding

for . . . (2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to move for

a new trial under Rule 59(b).” Fed. R. Civ. P. 60. “That

standard requires that the new evidence (1) be material and not

merely cumulative, (2) could not have been discovered before

trial through the exercise of reasonable diligence and (3) would

probably have changed the outcome of the trial.” Compass

Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir.

1995).

The District Court found that GSK had not carried its

burden under the second prong because it did not prove that it

could not have discovered this information with reasonable

diligence. It came to this conclusion because GSK did not

draw on the Court’s power to recover the discovered

information and because GSK did not show that it could not

have received this information with a court order. GSK has not

cited a case to support its position that reasonable diligence

requires less than a court order. As a result, the District Court

did not abuse its discretion in denying this motion.

IV.

The Eleventh Amendment applies to the settlement

agreement and the instant enforcement action. GSK may not

avoid the Eleventh Amendment’s prohibition. Additionally,

the District Court did not abuse its discretion in denying GSK’s

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Rule 60(b) Motion. For the foregoing reasons, we will affirm

the District Court’s orders.

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