A.S. v. SmithKline Beecham Corp.
2014 U.S. App. LEXIS 19267
| 3rd Cir. | 2014Background
- Plaintiffs filed suit in state court alleging Paxil caused birth defects; GSK removed asserting diversity jurisdiction and was remanded to state court.
- After Johnson v. SmithKline Beecham Corp. (3d Cir. 2013) held GSK was Delaware citizen, GSK re-removed within 30 days.
- District Court denied remand; the matter was certified for interlocutory appeal under 28 U.S.C. § 1292(b).
- Court reviews whether second removal was untimely under 28 U.S.C. § 1446(b) and whether § 1447(d) bars review, plus tolling considerations.
- Court also considers whether the second removal can relate back to the first removal and the impact of final remand order on jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second removal was timely under § 1446(b). | GSK’s second removal was within time after Johnson. | Second removal complied with timing rules under § 1446(b). | Second removal untimely under § 1446(b). |
| Whether § 1446(b)(2) permits reliance on an order in another case to restart the removal clock. | Doe v. American Red Cross creates a narrow exception for related orders. | Doe’s exception does not apply; Johnson did not authorize all pending cases. | § 1446(b)(2) does not permit the second removal based on a related-case order. |
| Whether equitable tolling could excuse the untimely second removal under § 1446(b). | Equitable tolling due to extraordinary circumstances. | No extraordinary circumstances; consolidation and remand error are not tolling grounds. | Equitable tolling not warranted. |
| Whether the second removal can relate back to the first removal under § 1447(d) or common-law relation back. | Second notice could relate back to first under related-case authority. | Remand order finalized; no pending case to relate back to; Hunt v. Acromed distinguishes. | Second notice cannot relate back; remand stands; remand ordered. |
Key Cases Cited
- Doe v. American Red Cross, 100 F.3d 1 (3d Cir. 1993) (limits on what constitutes an 'order' for § 1446(b) timing)
- Johnson v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir. 2013) (held GSK is a Delaware citizen, affecting removability)
- Doe v. American Red Cross, 14 F.3d 196 (3d Cir. 1993) (establishes Doe rule on 'order' in related cases (special context))
- USX Corp. v. Adriatic Insurance Co., 345 F.3d 190 (3d Cir. 2003) (relates back to removal where amendments clarify jurisdictional basis)
- Hunt v. Acromed Corp., 961 F.2d 1079 (3d Cir. 1992) (removal after remand ends jurisdiction; limits amendments)
- Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124 (3d Cir. 1998) (limits review of remand orders under § 1447(d))
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (equitable tolling standard for time-bar issues)
- Abels v. State Farm Fire & Cas. Co., 770 F.2d 26 (3d Cir. 1985) (strict construction against removal)
- S.G. v. American National Red Cross, 505 U.S. 247 (1992) (critical context for 'order' and removal authority)