KAYLEA GUDDECK, et al.
SMITHKLINE BEECHAM CORP. d/b/a GLAXOSMITHKLINE
Plaintiffs Kaylea Guddeck, a minor, as well as her mother and guardian Julie Guddeck have sued defendant SmithKline Beecham Corp. ("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. This was one of a number 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).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). 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., --- F.3d --- (3d Cir. 2013), 2013 WL 2456043 (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:
(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 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 jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
28 U.S.C. § 1446(b) (1996) (amended 2011).
Plaintiffs contend that the current notice of removal is untimely. Plaintiffs maintain that the removal notice at issue here was not filed within thirty days after service of the complaint and that in any event removal is barred since it did not occur within one year after September 30, 2011, the date of the commencement of this action in the Court of Common Pleas.
GSK responds with several arguments. It first asserts that the action was timely removed in 2011, that this District Court improperly remanded it, and that it was timely removed after Johnson was decided by the Court of Appeals. GSK further argues that the one year bar against removal is not applicable since the bar applies only when the case is not initially removable. According to GSK, the case was removable from the outset and indeed properly removed at that time as the subsequent analysis of the Court of Appeals in Johnson explains. Finally, GSK argues that under the circumstances it would be inequitable to remand.
The parties focus on Doe v. American Red Cross, 14 F.3d 196, 200 (3d Cir. 1993). There, the District Court had remanded an action against the American Red Cross in which the plaintiff alleged he had contracted AIDS from contaminated blood transfusions. The court remanded on the ground that no federal question existed. It said it was doing so without prejudice to defendant's right to petition for re-removal. After remand, the Supreme Court, settling an issue that had long divided the courts, decided in a different action in which the Red Cross had been sued that the federal courts had original jurisdiction over suits against it because of the provisions of its Congressional charter. American Nat'l Red Cross v. S.G., 505 U.S. 247, 257 (1992).
Within thirty days after the Supreme Court decision, the Red Cross filed a second removal notice in the District Court. Our Court of Appeals upheld the removal. It concluded that the decision of the Supreme Court involving the same defendant and same factual scenario as in the case pending in the Eastern District of Pennsylvania was an "order" under § 1446(b) from which the Red Cross first ascertained that the action in this court was removable. The Court of ...