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Cammarota v. Smithkline Beecham Corporation

United States District Court, Third Circuit

September 9, 2013

JOSEPH CAMMAROTA, a Minor, by AMY LYNN HALLOCK, Guardian, and AMY LYNN HALLOCK, Individually
v.
SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE

MEMORANDUM

JOHN R. PADOVA, District Judge.

Plaintiffs Joseph Cammarota and his mother, Amy Lynn Hallock, brought this action against Defendant GlaxoSmithKline ("GSK") in the Court of Common Pleas of Philadelphia County, alleging that Hallock's use of Paxil, a prescription antidepressant manufactured by GSK, while she was pregnant caused her son Joseph's critical heart defect, which required heart surgery. GSK removed the case to this Court on June 26, 2013. Before the Court is Plaintiffs' Motion to Remand. We held a Hearing on the Motion on August 8, 2013. For the reasons that follow, the Motion is granted.

I. BACKGROUND

This case has an unusually complicated procedural history. It was originally filed in the Court of Common Pleas of Philadelphia County on September 30, 2011, as part of that Court's Paxil Pregnancy Mass. Tort Program, In re Paxil Pregnancy Cases, February Term 2007, No. 3220 (Phila. Cnty. Court of Common Pleas). See Notice of Removal ¶ 1, Cammarota v. SmithKline Beecham Corp., Civ. A. No. 11-6642 (E.D. Pa. Oct. 24, 2011). Defendant removed the case to this Court on October 24, 2011. Id . Plaintiffs filed a Motion to Remand to the Court of Common Pleas of Philadelphia County on October 26, 2011, on the ground that the removal was improper pursuant to 28 U.S.C. § 1441(b) because GSK, a Delaware limited liability company, has its principal place of business in Philadelphia and because GlaxoSmithKline Holdings (Americas) ("Holdings"), GSK's sole member, has no corporate headquarters or nerve center in Delaware, making GSK a Pennsylvania citizen for purposes of subject matter jurisdiction. See Plaintiffs' Mem. in Support of Mot. to Remand at 2-3, Cammarota, Civ. A. No. 11-6642 (E.D. Pa. Oct. 26, 2011). The plaintiffs in other actions that had originally been brought against GSK in the Paxil Pregnancy Mass. Tort Program, and which Defendant had likewise removed to this Court, also moved to remand on the same basis. On November 8, 2011, this action was consolidated with other Paxil Pregnancy cases before the Honorable Timothy J. Savage for the purpose of deciding their identical Motions to Remand.[1] Order, Cammarota, Civ. A. No. 11-6642 (E.D. Pa. Nov. 8, 2011).

On December 14, 2011, Judge Savage granted the Motions to Remand in the consolidated cases. See Mem. Op. at 2, Cammarota, Civ. A. No. 11-6642 (E.D. Pa. Dec. 14, 2011). Utilizing the nerve center test announced in Hertz Corp. v. Friend , 559 U.S. 77 (2010), and the citizenship test established in Zambelli Fireworks Mfg. Co. v. Wood , 592 F.3d 412 (3d Cir. 2010), Judge Savage determined that Holdings' nerve center is in Pennsylvania, where its principal place of business is located and, therefore, GSK is a Pennsylvania citizen for jurisdictional purposes and cannot remove a case from Pennsylvania state court on the basis of federal diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). Id. at 1-2, 6. This case was thus remanded to the Court of Common Pleas of Philadelphia County on December 14, 2011. See Order, Cammarota, Civ. A. No. 11-6642 (E.D. Pa. Dec. 14, 2011).

Plaintiffs and GSK have actively litigated this case as part of the Paxil Pregnancy Mass. Tort Program since it was remanded. Prior to Defendant's June 26, 2013 removal, the trial of this action was scheduled for November 2013, in the Court of Common Pleas of Philadelphia County. (8/8/13 Hr'g Tr. at 36, 38.) The parties completed discovery prior to removal, but had not filed dispositive motions or motions with respect to the admissibility of their experts' opinions. (Id. at 36.)

On June 7, 2013, in Johnson v. SmithKline Beecham Corp., ___ F.3d ___, 2013 WL 2456043 (3d Cir. 2013), the United States Court of Appeals for the Third Circuit, utilizing the nerve center test, determined that Holdings' principal place of business is in Delaware, and that neither GSK nor Holdings is a Pennsylvania citizen. Id. at *14, *17. The Third Circuit concluded that GSK could, therefore, properly remove an action brought against it from the Court of Common Pleas of Philadelphia County to the United States District Court for the Eastern District of Pennsylvania pursuant to this Court's diversity jurisdiction. Id. at *1, *17.

Nineteen days later, on June 26, 2013, GSK removed this action for the second time. (See 6/26/13 Notice of Removal.) Plaintiffs filed the instant Motion to Remand on June 28, 2013. We held a Hearing on the Motion on August 8, 2013.

II. LEGAL STANDARD

Defendant removed this action pursuant to 28 U.S.C. § 1441(a), which provides that "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... 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). "Diversity of citizenship subject matter jurisdiction falls within the original jurisdiction of the district court, ' pursuant to § 1332(a) of Title 28 of the United States Code, and thus a state court case that implicates diversity jurisdiction' may generally be removed...." Johnson, 2013 WL 2456043, at *6 (quoting Brown v. Francis , 75 F.3d 860, 865 (3d Cir. 1996)). However, a case that is otherwise removable based on diversity jurisdiction may not be removed if any of the defendants "is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)(2). "Diversity of citizenship must have existed at the time the complaint was filed and at the time of removal...." Johnson, 2013 WL 2456043 at *6 (citing Grand Union Supermarkets v. H.E. Lockhart Mgmt., Inc. , 316 F.3d 408, 410 (3d Cir. 2003); and Abels v. State Farm Fire & Cas. Co. , 770 F.2d 26, 29 (3d Cir. 1985)). The removing party has the burden of establishing federal jurisdiction. Id . (citing Abels , 770 F.2d at 29). "Because lack of jurisdiction would make any decree in the case void and the continuation of the litigation in federal court futile, the removal statute should be strictly construed and all doubts resolved in favor of remand.'" Id . (quoting Brown , 75 F.3d at 864-65).

The procedure for removal is provided in 28 U.S.C. § 1446. We apply the version of § 1446 that was in effect prior to the 2011 amendments to that statute.[2] Section 1446 provides that a defendant seeking to remove a civil action shall file a notice of removal in the United States district court for the "district and division in which such action is pending." 28 U.S.C. § 1446(a). A defendant must file the notice of removal "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." 28 U.S.C. § 1446(b). The second paragraph of § 1446(b) also provides for later removal of an action that was not initially removable:

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.

Id..

Plaintiffs have moved to remand this action pursuant to 28 U.S.C. § 1447. Section 1447 provides that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of ...


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