Guddeck v. SmithKline Beecham Corp., Civil File No. 13–2508 MJD/LIB.
| Decision Date | 22 July 2014 |
| Docket Number | Civil File No. 13–2508 MJD/LIB. |
| Citation | 34 F.Supp.3d 990 |
| Parties | Kaylea GUDDECK, a Minor, by Julie GUDDECK, Plaintiff, v. SMITHKLINE BEECHAM CORPORATION, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Aaron Heckaman, Adam D. Peavy, Justin C. Jenson, Kenneth W. Pearson, Mario D'Angelo, Michael K. Johnson, Robert W. Cowan, Rolf Fiebiger, Sundeep Grewal, and Thomas Scott Allen, Bailey Peavy Bailey, PLLC, for Plaintiff.
Andrew T. Bayman, Halli D. Cohn, Jaime E. Davis, Lauren Reeder McClurg, and Robert K. Woo, Jr., King & Spalding LLP, Jerry W. Blackwell and Peter J. Goss, Blackwell Burke PA, for Defendant.
The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Leo I. Brisbois, dated May 13, 2014. [Docket No. 76] Plaintiff filed objections to the Report and Recommendation. [Docket No. 79]
Pursuant to statute, the Court has conducted a de novo review upon the record. 28 U.S.C. § 636(b)(1) ; Local Rule 72.2(b). Based upon that review, the Court adopts the Report and Recommendation of United States Magistrate Judge Brisbois dated May 13, 2014.
Accordingly, based upon the files, records, and proceedings herein, IT IS HEREBY ORDERED:
This matter came before the undersigned United States Magistrate Judge upon Plaintiff's Motion to Remand to State Court. [Docket No. 53] (hereinafter, “Motion to Remand”). The Motion has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Referral [Docket No. 59] ), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For reasons set forth below, the Court recommends that Plaintiff's Motion to Remand, [Docket No. 53], be DENIED.
The general background of this personal injury and product liability action was detailed in this Court's November 18, 2013, Order, [Docket No. 52], and need not be repeated at length here. However, the procedural background of this case is directly relevant to this Report and Recommendation, and therefore, the Court notes the following:
The consolidated “Paxil
Pregnancy Cases” against GlaxoSmithKline LLC, formerly known as SmithKline Beecham Corporation d/b/a GlaxoSmithKline (“Defendant” or “GSK”), were initiated on or about March 5, 2007, in the Court of Common Pleas of Philadelphia County, Pennsylvania (the “Pennsylvania State Court”). (Notice of Removal, Ex. A [Docket No. 1], at 25–56). Subsequently, and pursuant to the established procedure for the Paxil Pregnancy Cases, Julie Guddeck, on behalf of her daughter Kaylea Guddeck (“Plaintiff”), filed a Short–Form Complaint on or about September 30, 2011, in the Pennsylvania State Court. (Id., Ex B. [Docket No. 1], at 57–71). Defendant timely removed to the Eastern District of Pennsylvania on October 24, 2011 (the “2011 removal”). (Id. at 7). However, the District Court1 found that Defendant was a citizen of Pennsylvania and, therefore, that removal was barred by the resident-defendant rule. Patton v. SmithKline Beecham Corp., 2011 WL 6210724, 2011 U.S. Dist. LEXIS 143724 (E.D.Pa. Dec. 14, 2011). Following Judge Savage's order of remand, the case proceeded in the Pennsylvania State Court.
Subsequently, upon conflicting decisions in the U.S. District Court for the Eastern District of Pennsylvania regarding Defendant's citizenship, the issue was certified to the Third Circuit for interlocutory appeal. See Johnson v. SmithKline Beecham Corp., 853 F.Supp.2d 487, 491 (E.D.Pa.2012). On June 7, 2013, the Third Circuit held that Defendant was a citizen of Delaware, not Pennsylvania. Lucier v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir.2013). In light of the Lucier decision, Defendant again removed this case to Federal Court on June 26, 2013 (the “2013 removal”), and on the same day Defendant also moved to transfer venue to the District of Minnesota. (Notice of Removal, [Docket No. 1], at 5; Mot. Transfer [Docket No. 2] ). Plaintiff again moved to remand to the Pennsylvania State Court and opposed any change in venue. (Mot. Remand [Docket No. 4]; Pl.'s Resp. Mot. Transfer [Docket No. 9] ). This time, however, the District Court2 on July 24, 2013, denied the motion to remand. Guddeck v. SmithKline Beecham Corp., 957 F.Supp.2d 622 (E.D.Pa.2013) (hereinafter, “Guddeck I ”).
Plaintiff did not move for reconsideration of Guddeck I within 14 days as provided by the Eastern District of Pennsylvania's Local Rule 7.1(g), and consequently, after the 14–day window to move for reconsideration had lapsed, the District Court granted Defendant's motion to transfer the case to the District of Minnesota. Guddeck v. SmithKline Beecham Corp., 2013 WL 4197085, 2013 U.S. Dist. LEXIS 115069 (E.D.Pa. Aug. 14, 2013) (hereinafter, “Guddeck II ”).
After the case was transferred to this District, Plaintiff moved for a temporary stay, [Docket No. 39], which this Court denied. (Order [Docket No. 52] ). Meanwhile, this Court entered a Pretrial Scheduling Order, [Docket No. 48], and an Amended Pretrial Scheduling Order, [Docket No. 75], which now requires that remaining discovery be completed by August 23, 2014.
In her Motion, Plaintiff argues that because the 2013 removal occurred more than 1 year after the case was originally commenced, that removal was untimely under 28 U.S.C. 1446,3 and therefore, that the case must be remanded to the State Court in Pennsylvania. (See Docket No. 53). Additionally, Plaintiff argues that the 2013 removal was barred by 28 U.S.C. § 1447(d), which prohibits review of a remand order. (See Pl.'s Mem. [Docket No. 55], at 4, 9; Pl.'s Reply [Docket No. 63], at 1–8).
Because of the unusual manner in which this case and the present Motion to Remand, [Docket No. 53], arrive at this Court, it is important at the outset to identify those facts that are not in dispute. Plaintiff does not dispute that there is complete diversity among the parties; that the amount in controversy exceeds $75,000.00; and that, in light of Lucier, supra , the resident-defendant rule does not bar removal of the present case to the Federal courts. (Hr'g Tr. [Docket No. 71], at 7:25–9:21). In other words, if this was a new case filed in the Pennsylvania State Courts, Plaintiff concedes that it would be removable. Plaintiff's sole argument here is that the 2013 removal to the Eastern District of Pennsylvania was procedurally improper, both under 28 U.S.C. § 1446(b), which establishes time limits for removal, and under 28 U.S.C. § 1447(d), which prohibits review of an order of remand.
For the reasons set forth below, the Court does not agree, and it recommends that Plaintiff's Motion to Remand, [Docket No. 53], be DENIED.
Initially, this Court must more precisely determine the procedural posture in this Court of the present Motion.
Plaintiff argues that the 1–year window for removal under 28 U.S.C. § 1446(b) is a subject matter jurisdiction rule, and therefore, that this Court must consider de novo the timeliness of the 2013 removal as part of the Court's continuing obligation to evaluate whether it has subject matter jurisdiction. Plaintiff further contends that this Court must reconsider de novo the timeliness of the 2013 removal pursuant to Eighth Circuit precedent without giving any deference to the Eastern District of Pennsylvania's decision in Guddeck I .4
This Court is not persuaded.
First, Plaintiff concedes that there is nothing in the plain language of 28 U.S.C. § 1446(b) to suggest that it is a jurisdictional, rather than a procedural, statute. (Hr'g Tr. [Docket No. 71], at 34:22–35–5). In fact, the title of § 1446, “Procedure for removal of civil actions” (emphasis added), strongly suggests that it is a procedural statute and not a jurisdictional one. Additionally, both parties acknowledge that the Eighth Circuit has not expressly addressed the issue of whether § 1446 is jurisdictional or procedural in nature.
However, in a case arising out of this District, the Eighth Circuit has impliedly come down on the procedural side. In the case of In re Burns & Wilcox, Ltd., 54 F.3d 475 (8th Cir.1995),5 a restaurant owner (the “plaintiff”) sued her insurance agent (the “defendant”) in Minnesota state court after a fire damaged her restaurant and the insurer failed to pay on her policy. 54 F.3d at 475–76. The defendant, in turn, made a third-party claim against the insurance company's general agent (the “third-party defendant”). Id. at 476. Shortly before trial, the plaintiff settled with the defendant and took an assignment of his claim against the third-party defendant. Id. However, the dismissal of the defendant created complete diversity among the remaining parties, and consequently, the third-party defendant removed to federal court, despite the fact that almost two years had passed since the case was initiated.Id. The plaintiff moved to remand, and the District Court granted the motion on the grounds that it should “abstain from exercising jurisdiction ... [because] the state court was intimately familiar with the facts of the case and had issued many rulings.” Id. (internal quotation omitted).
The third-party defendant subsequently filed a petition for a writ of mandamus seeking relief from the District Court's order, and the Eighth Circuit, upon finding that the District Court was wrong to grant the remand, granted the writ and ordered the District Court to vacate its remand order and exercise diversity jurisdiction over the case. Id. at 475–76, 478. In so doing, the Eighth Circuit noted:
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