Dismissed by published opinion. Judge FLOYD wrote the opinion, in which Justice O’CONNOR and Judge THACKER joined.
Appellants Pfizer Inc.; Roerig, a division of Pfizer; and Greenstone, LLC (collectively, the Pharmaceutical Companies), bring this appeal challenging the district court’s decision to remand for lack of subject matter jurisdiction to the Circuit Court of Wayne County, West Virginia. Congress has sharply proscribed our ability to review a district court’s remand order, and because none of the exceptions to this prohibition are present here, we dismiss this appeal for lack of jurisdiction.
I.
This action was commenced by nineteen plaintiff families upon filing a single complaint. The families brought products liability and negligence claims against the Pharmaceutical Companies. The families allege that the prescription anti-depressant sertraline hydrochloride, branded as Zoloft, caused birth defects to each child born of a pregnancy where the mother ingested Zoloft. Pfizer is a corporation organized under Delaware law and has its principle place of business in New York. Greenstone is a limited liability company wholly owned by Pharmacia Corporation, which is a corporation organized under Delaware law with its principle place of business in New Jersey. Besides the Dropp family, citizens of New York, all other families are diverse from the Pharmaceutical Companies.
Instead of filing the complaint as a single civil action, the clerk of court, pursuant to West Virginia Rule of Civil Procedure 3(a), docketed each family separately, resulting in nineteen distinct actions, one action for each family named in the complaint. The clerk assigned each family a civil action number and charged them a separate filing fee. However, the families were not required to file separate complaints. The Pharmaceutical Companies interpret this rule to mean that nineteen distinct actions exist. Based upon this reading of the rule and because eighteen of the nineteen families were completely diverse from all of the defendants, the Pharmaceutical Companies removed all but the non-diverse Dropp family to the United States District Court for the Southern District of West Virginia on August 7, 2012. The Dropp case remains pending in state court. On August 13, 2012, the eighteen removed families filed individual motions to remand in the district court.
The Pharmaceutical Companies argued below that removal was proper because the actions, when analyzed individually, show that each plaintiff is diverse from each defendant. The families argue, however, that the action is a single case and that the families were treated separately only for administrative purposes, and this has no bearing on the diversity jurisdiction analysis. The district court first recognized that Rule 3(a) was enacted in 2008 to require that actions filed by unrelated plaintiffs must be docketed as separate actions and must each be charged a fee. The district court then examined a case prior to the 2008 amendment to discern the purpose of the separate docketing and filing fee requirement. See Grennell v.
In Grennell, the Supreme Court of Appeals of West Virginia had authorized the clerks of court to separately docket cases and charge supplemental filing fees, and the court considered whether this administrative action created distinct cases. Id. at 392. The Grennell plaintiffs were assigned separate case numbers and paid individual filing fees. However, they were not required to file multiple complaints. Id. The court reasoned that “if Plaintiffs were not joined in one action, the Circuit Court would have required them to file a separate complaint on behalf of each plaintiff.” Id. at 395. It went on to conclude that although the cases had been administratively separated, the defendants did not show that the plaintiffs were not properly joined for diversity analysis. Id. Similarly, here the district court reasoned:
Mass action rules similar to those given by the administrative order at issue in Grennell were added to West Virginia Rule of Civil Procedure 3(a) in 2008. Defendants argue that Rule 3(a) can be distinguished from the administrative order in Grennell, because Rule 3(a) specifies that each plaintiffs claim shall be “docketed as a separate civil action.” W. Va. R. Civ. P. 3(a). Defendants offer no authority, however, for the proposition that Rule 3(a) was meant to have the rather severe substantive effect of prohibiting all unrelated persons from proceeding with a mass claim in West Virginia state courts. Instead, it seems more likely that the changes to Rule 3(a) were intended to alter the administration of mass claims by the state courts. Plaintiffs' provide the affidavit of the Clerk of the Wayne County Circuit Court, Milton Ferguson (Ferguson Affidavit), stating that Plaintiffs in this matter were separated by the state court as directed by Rule 3(a), but that they were not required to file separate complaints, were not considered separate cases, and were all assigned to the same judge. Id. A single affidavit may not be dispositive on the question of how to interpret a state rule of civil procedure, but in this case, it illustrates the principle evident from the changes to Rule 3(a) and the principle adopted by this Court in Grennell: administrative separation of claims in state court does not determine the propriety of joinder in federal court. Defendants have not met their burden of demonstrating that Plaintiffs’ claims were not properly joined because of case processing practices in Wayne County Circuit Court.
J.C. ex rel. Cook v. Pfizer, Inc., 3:12-cv-04103,
After concluding that the action was really one civil action for purposes of diversity jurisdiction, the district court then addressed the Pharmaceutical Companies’ alternative argument, that even if the case can be viewed as a single case, the Dropp family, the only non-diverse plaintiff, was fraudulently joined. The fraudulent joinder doctrine provides an exception to the complete diversity requirement. Thus, if the Dropp family was fraudulently joined, the district court had jurisdiction. To establish fraudulent joinder, the district court required the Pharmaceutical Companies to show that the families failed to meet either or both of the requirements for joinder, namely: (1) the claims must arise out of the same transaction, series of transactions, or occurrence, and (2) some question of law or fact common to all parties must be present. The district court ultimately found that the families met both requirements. First, the claims were “logically related and arise from the same series of transactions or occurrences — namely the production, distribution, and promotion of Zoloft.” Id. at *5. Second, the common question of law or
After considering the Pharmaceutical Companies’ arguments and concluding that no basis for subject matter jurisdiction existed, the district court granted the families’ motions to remand to state court. The Pharmaceutical Companies appeal the remand order.
II.
A.
We must first address whether this Court has the ability to review the district court’s remand order. The Pharmaceutical Companies face an insurmountable barrier because “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” 28 U.S.C. § 1447(d), regardless of “whether or not that order might be deemed erroneous by [us],” Thermtron Prods., Inc. v. Hermansdorfer,
This Court’s review of a remand order is barred if the order is within the scope of 28 U.S.C. § 1447(c). Section 1447(c) allows a district court to remand based on: “(1) a district court’s lack of subject matter jurisdiction or (2) a defect in removal ‘other than lack of subject matter jurisdiction’ that was raised by the motion of a party within 30 days after the notice of removal was filed.” Ellenburg v. Spartan Motors Chassis, Inc.,
In Thermtron, the district court had remanded the case because it had determined that its docket was too crowded to hear it in a timely fashion.
After Thermtron, this Court expounded upon this exception in Borneman,
In addition to the Themitron exception relied on in Bomeman, this Court in Bomeman also cited principles that the Supreme Court first recognized in Waco v. United States Fidelity & Guaranty Co.,
[A]n otherwise reviewable ruling is not shielded from review merely because it is a constituent aspect of a remand order that would itself appear to be insulated from review by § 1447(d). See Waco v. United States Fidelity & Guar. Co.,293 U.S. 140 , 143,55 S.Ct. 6 ,79 L.Ed. 244 (1934) (treating separately components of district court’s order dismissing a party and remanding action); Mangold [v. Analytic Servs., Inc.], 77 F.3d [1442,] 1446 [ (4th Cir.1996) ] (treating separately components of district court’s order denying immunity and remanding action to state court).
This Court again considered Waco in the Ellenburg case. In Ellenburg, the district
The Pharmaceutical Companies here disclaim reliance on Waco while simultaneously citing language from Borne-man and Ellenburg, language that is unquestionably derived from Waco itself. This evasion is understandable considering the restrictions we have placed on asserting the Waco exception. “This Court restricts the applicability of the Waco exception to purportedly reviewable orders that (1) have a preclusive effect upon the parties in subsequent proceedings and (2) are severable, both logically and factually, from the remand order itself.” Palmer v. City Nat’l Bank of W. Va.,
B.
Having established the law that may be applicable here, we now turn to the facts of this case to determine whether any exception applies. The Pharmaceutical Companies argue that under Therm-tron this Court can consider the remand order because the action here was eighteen separate lawsuits and the district court’s decision to consider the citizenship of the Dropps — “nonparties”—falls outside the permissible grounds for remand and exceeds the court’s authority. As previously noted, this Court has the power “to correct a district court that has not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching the propriety of the removal.” Thermtron,
The district court’s remand order in this case quite obviously falls within the ambit
We now consider the Pharmaceutical Companies’ argument under the Bomeman and Ellenburg formulation of Waco. This exception allows this Court to review “a collateral decision that is severable from the remand order.” Blackwater,
We do not believe that this exception applies here. The Pharmaceutical Companies’ formulation of Waco would overstrain this exception. This is especially true in light of the facts in Bomeman and Ellen-burg. First, in Bomeman, there was a tension between two federal statutes, and we noted that “§ 1447(d)’s restriction on appellate review of remand orders cannot be read categorically when other statutes in tension with it are considered.” Borneman,
The facts of this case do not indicate any purpose other than a joinder analysis undertaken solely for the resolution of subject matter jurisdiction. Unlike the central holding in Borneman, there is no conflict between federal statutes. And unlike Ellenburg, the district court here was obviously addressing subject matter jurisdiction when it went beyond the complaint and looked at West Virginia Rule of Civil Procedure 3(a). Further, the Pharmaceutical Companies fail to meet the requirements for this Court’s formulation of Waco. As noted above, this Court requires the order to have both a preclusive effect in subsequent proceedings and to be severable from the remand order itself. Palmer,
Because the Pharmaceutical Companies have failed to establish that an exception should apply here, and because the plain language of § 1447(c) bars our review of this case, we conclude that we do not have the authority to review the remand order, and we end our analysis here.
III.
For the foregoing reasons, we conclude that we lack jurisdiction to hear this appeal. As a result, this case is
DISMISSED.