A.S., a minor by SALLEE MILLER, Guardian, and SALLEE MILLER, Individually, Plaintiffs,
SMITHKLINE BEECHAM CORPORATION, d/b/a GlaxoSmithKline, Defendant.
CHRISTOPHER C. CONNER, Chief District Judge.
Presently before the court is plaintiffs' motion (Doc. 37) to amend and certify the court's order for interlocutory review pursuant to 28 U.S.C. § 1292(b) and for a temporary stay. For the reasons that follow, the court will grant the motion.
I. Factual Background and Procedural History
Plaintiffs A.S., a minor, and Sallee Miller have sued defendant SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("GSK"), for damages from injuries allegedly incurred due to Sallee Miller's ingestion of the antidepressant drug Paxil during her pregnancy with A.S. (Doc. 1 at 5-9).
This case has a lengthy and complicated procedural history. Plaintiffs originally filed a complaint as part of the consolidated Paxil Pregnancy Litigation in the Philadelphia Court of Common Pleas Mass. Tort Program. ( Id. at 5). On October 24, 2011, GSK removed plaintiffs' case to the Eastern District of Pennsylvania based on federal diversity jurisdiction. ( Id. at 7). It was initially assigned to the Honorable Mary A. McLaughlin but was later consolidated with eight other removed Paxil cases. (Id.) The consolidated cases were assigned to the Honorable Timothy J. Savage for the disposition of identical remand motions. (Id.) On December 14, 2011, Judge Savage remanded the cases because he determined that GSK is a Pennsylvania citizen, and that GSK cannot remove a case from Pennsylvania state court on the basis of federal diversity jurisdiction. See Patton ex rel. Daniels-Patton v. SmithKline Beecham Corp., Civ. A. No. 11-6641, 2011 WL 6210724 (E.D. Pa. Dec. 14, 2011).
Judges in the Eastern District reached conflicting decisions concerning GSK's citizenship, and, ultimately, an Eastern District court certified the issue for interlocutory review. See Johnson v. SmithKline Beecham Corp. , 853 F.Supp.2d 487 (E.D. Pa. 2012). On June 7, 2013, the Third Circuit held that GSK is a citizen of Delaware, thus providing the basis for removal to federal court. Johnson v. SmithKline Beecham Corp. , 724 F.3d 337 (3d Cir. 2013). Accordingly, GSK re-removed this case and eight others on the basis of federal diversity jurisdiction on June 26, 2013. (Doc. 1). Plaintiffs' counsel filed an identical motion to remand in each case two days later. (Doc. 3).
Plaintiffs assert that GSK's second removal is barred under 28 U.S.C. § 1446(b) as it existed at the time the action was filed. Specifically, plaintiffs allege that GSK's second removal is untimely under 28 U.S.C. § 1446(b) because it occurred more than one year after commencement of the action. (Doc. 3-1 at 4). Judge McLaughlin denied plaintiffs' motion to remand on July 26, 2013. (Doc. 15). The court relied principally upon the reasons provided in a recent memorandum by the Honorable Harvey Bartle, III, who denied a motion to remand in another Paxil case. See Guddeck v. SmithKline Beecham Corp., Civ. A. No. 13-3696, __ F.Supp.2d __, 2013 WL 3833252 (E.D. Pa. July 24, 2013). Judge McLaughlin also granted GSK's motion to transfer venue to this court on August 16, 2013. (Doc. 19).
On August 7, 2013, the Honorable Ronald L. Buckwalter denied motions to remand in two of the other removed Paxil cases. See Cintao v. SmithKline Beecham Corp., Civ. A. No. 13-3681 (E.D. Pa. Aug. 7, 2013); Nieman v. SmithKline Beecham Corp., Civ. A. No. 13-3695 (E.D. Pa. Aug. 7, 2013). The Honorable John R. Padova and the Honorable Michael M. Baylson granted motions to remand in another two. See Cammarota v. SmithKline Beecham Corp., Civ. A. No. 13-3677, 2013 WL 4787305 (E.D. Pa. Sept. 9, 2013); Powell v. SmithKline Beecham Corp., Civ. A. No. 13-3693, 2013 WL 5377852 (E.D. Pa. Sept. 26, 2013). Obviously, these decisions create a split of authority within the Eastern District of Pennsylvania. Motions to remand in the remaining Paxil cases are pending. (Doc. 46 at 4).
Judge Buckwalter denied the plaintiffs' motions to certify for interlocutory review in Cintao and Nieman on October 9, 2013. Judge Buckwalter reasoned that an interlocutory appeal would not materially advance the ultimate termination of the litigation because "even if successful, the plaintiffs will still be awaiting a trial, albeit not in federal court." See Cintao, Civ. A. No. 13-3681, slip op. at 2 (E.D. Pa. Oct. 9, 2013).
On October 17, 2013, plaintiffs filed the instant motion (Doc. 37) to certify Judge McLaughlin's order (Doc. 15) denying plaintiffs' motion to remand for interlocutory review. Plaintiffs request certification of the following issue for interlocutory appeal:
Whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case, where a final remand order determining the case is not removable had already been issued and the plaintiff has not prevented timely removal?
During the pendency of the instant motion, specifically on November 7, 2013, the Third Circuit denied the plaintiffs' petitions for writs of mandamus in Cintao and Niemen. See Cintao v. SmithKline Beecham Corp., Civ. A. No. 13-4192 (3d Cir. Nov. 7, 2013); Nieman v. SmithKline Beecham Corp., Civ. A. No. 13-4193 (3d Cir. Nov. 7, 2013).
The court may certify an order for interlocutory review if 1) the decision concerns "a controlling question of law;" 2) there is "a substantial ground for difference of opinion" on that question; and 3) an immediate appeal "may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). Plaintiffs, GSK, and the court agree that the order disposing of plaintiffs' motion to remand satisfies the first two elements necessary for certification. (See Docs. 46 at 1-2, 48 at 1-2). It is undisputed that there is a split of authority on a controlling question of law, namely, whether GSK may remove the action for a second time based on diversity jurisdiction more than one year after commencement of the action pursuant to 28 U.S.C. § 1446(b). However, GSK asserts that an immediate appeal would ...