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Guddeck v. Smithkline Beecham Corp.

United States District Court, E.D. Pennsylvania

July 24, 2013

KAYLEA GUDDECK, et al.
v.
SMITHKLINE BEECHAM CORP. d/b/a GLAXOSMITHKLINE

For KAYLEA GUDDECK, A MINOR, BY JULIE GUDDECK, GUARDIAN, JULIE GUDDECK, INDIVIDUALLY, Plaintiffs: ADAM D. PEAVY, T. SCOTT ALLEN, W. HARRIS JUNELL, LEAD ATTORNEYS, BAILEY PERRIN BAILEY, HOUSTON, TX; ROSEMARY PINTO, LEAD ATTORNEY, FELDMAN & PINTO PC, PHILADELPHIA, PA.

For SMITHKLINE BEECHAM CORPORATION, doing business as GLAXOSMITHKLINE, Defendant: JOSEPH E. O'NEIL, LEAD ATTORNEY, CAROLYN L. MCCORMACK, LAVIN, O'NEIL, RICCI, CEDRONE & DISIPIO, PHILADELPHIA, PA.

OPINION

MEMORANDUM

Harvey Bartle III, J.

Plaintiffs Kaylea Guddeck, a minor, as well as her mother and guardian Julie Guddeck have sued defendant SmithKline Beecham Corp. [1] (" GSK" ) for personal injuries allegedly suffered as a result of Julie Guddeck's ingestion of defendant's anti-depressant drug Paxil during her pregnancy. Plaintiffs assert that the drug caused Kaylea Guddeck to have a critical neural tube defect necessitating major surgery. They have claims for negligence, breach of warranty, and strict liability. Before the court is the motion of plaintiffs to remand this action to the Court of Common Pleas of Philadelphia County.

This case has had a protracted procedural history. It was originally filed in the state court on September 30, 2011 and then timely removed based on diversity of citizenship. It was randomly assigned to the undersigned. [2] This was one of a number

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of similar Paxil actions against GSK which had been removed and assigned to various judges of this court. Plaintiffs thereafter filed a motion to remand in this and other similarly situated cases. On November 17, 2011, then Chief Judge J. Curtis Joyner consolidated the cases before Judge Timothy J. Savage for the purpose of deciding the remand motions. Judge Savage granted the motions in this and other cases on December 14, 2011 on the ground that GSK was a Pennsylvania citizen and that removal by an in-state defendant was improper under 28 U.S.C. § 1441(b)(2). [3] Patton ex rel. Daniels-Patton v. SmithKline Beecham Corp., 2011 WL 6210724 (E.D. Pa. Dec. 14, 2011).

Thereafter, Judge Paul Diamond in a similar action not consolidated before Judge Savage ruled that GSK was a Delaware citizen and that removal was proper. Johnson v. SmithKline Beecham Corp., 853 F.Supp.2d 487, 491 (E.D. Pa. 2012). [4] Since his decision conflicted with the decision of Judge Savage, Judge Diamond certified his interlocutory order to the Court of Appeals under 28 U.S.C. § 1292(b). The Court of Appeals permitted the appeal to be taken and, agreeing with Judge Diamond, held that GSK was a Delaware citizen and affirmed the removal of the action. Johnson v. SmithKline Beecham Corp., 724 F.3d 337 , 2013 WL 2456043 (3d Cir. June 7, 2013) (hereinafter " Johnson" ).

On June 26, 2013, less than three weeks after Johnson was handed down by our Court of Appeals, GSK again removed this action from the Court of Common Pleas where it had been pending since it had been remanded in December 2011. Plaintiffs have now countered with their motion to remand.

Currently, there is no dispute that the parties are of diverse citizenship, that the amount in controversy exceeds $75,000 exclusive of interest and costs, and that GSK is not an in-state defendant. See 28 U.S.C. § 1332 and § 1441(b)(2). While 28 U.S.C. § 1441 allows for the removal of diversity actions where the defendant is not a citizen of the forum state, § 1446 provides the procedures for removal. The sole issue before the court is whether removal is barred under 28 U.S.C. § 1446(b) as the section existed at the time this action was commenced [5] :

(b) 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 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.
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 ...

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