PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 12-2561/2562/2563/2564/2565

_____________

GLENDA JOHNSON;

STEVEN LUCIER,

 Appellants in 12-2561

v.

SMITHKLINE BEECHAM CORPORATION, doing 

business as GLAXOSMITHKLINE; GLAXOSMITHKLINE, 

LLC; GLAXOSMITHKLINE HOLDINGS LLC; SANOFIAVENTIS, U.S., L.L.C.; AVANTOR PERFORMANCE 

MATERIALS; GRUNENTHAL U.S.A.; GRUNENTHAL 

GMBH

 SmithKline Beecham Corporation; 

 GlaxoSmithKline, LLC; and 

GlaxoSmithKline Holdings, LLC

Appellants in 12-2562

 Avantor PerformanceMaterials,

Appellant in 12-2563

Sanofi-Aventis U.S.,LLC,

Appellant in 12-2564
2

Grunenthal U.S.A., 

Appellant in 12-2565

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-11-cv-05782)

District Judge: Hon. Paul S. Diamond

_______________

Argued

March 5, 2013

Before: AMBRO, JORDAN, and VANASKIE, Circuit 

Judges.

(Filed: June 7, 2013)

_______________

Steve W. Berman

Craig R. Spiegel [ARGUED]

Nick Styant-Browne

Hagens Berman Sobol Shapiro

1918 Eighth Avenue - #3300

Seattle, WA 98101

Mary A. Geppert

Jeffrey L. Kodroff

John A. Macoretta

Spector, Roseman, Kodroff & Willis

1818 Market Street - #2500

Philadelphia, PA 19103
3

Kay G. Reeves

6815 Lakeshore Drive

Dallas, TX 75214

 Counsel for Appellants/Cross-Appellees

Lisa S. Blatt [ARGUED]

Sarah M. Harris

R. Stanton Jones

Arnold & Porter

555 Twelfth Street, NW

Washington, DC 20004

Michael T. Scott

Melissa A. Wojtylak

Reed Smith

1650 Market Street - #2500

Philadelphia, PA 19103

 Counsel for Appellees/Cross-Appellants, SmithKline 

 Beecham Corp., GlaxoSmithKline, and 

 GlaxoSmithKline Holdings LLC

Anand Agneshwar

Bruce R. Kelly

Arnold & Porter

399 Park Avenue

New York, NY 10022

Kenneth A. Murphy

Drinker, Biddle & Reath

18th & Cherry Streets

One Logan Square - #2000

Philadelphia, PA 19103
4

Daniel S. Pariser

Arnold & Porter

555 Twelfth Street, NW

Washington, DC 20004

 Counsel for Appellees, Sanofi-Aventis US Inc.,

 and Avantor Performance Materials

Albert G. Bixler

Rachel C. Rosser

Eckert, Seamans, Cherin & Mellott

50 S. 16th Street – 22nd Fl.

Philadelphia, PA 19102

Sara J. Gourley

Eugene A. Schoon

Sidley Austin

One South Dearborn St.

Chicago, IL 60603

 Counsel for Appellees/Cross-Appellants

 Grunenthal USA and Grunenthal GmbH

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Plaintiffs Glenda Johnson and Steven Lucier appeal an

order of the United States District Court for the Eastern 

District of Pennsylvania denying their motion to remand this 

action to Pennsylvania state court. They contend that the 

District Court lacks subject matter jurisdiction over their 

claims because the parties do not have complete diversity of 
5

citizenship. We conclude that the District Court‘s assessment 

of citizenship was correct, and that none of the Defendants is 

a citizen of the same state as either Plaintiff. Accordingly, we 

will affirm. 

 

I. Background1

Johnson, a Louisiana citizen, and Lucier, a 

Pennsylvania citizen (collectively, ―Plaintiffs‖), suffer from 

birth defects allegedly caused by their mothers‘ use of the 

drug thalidomide during pregnancy in the 1960s.2 

 

1

The parties agreed to proceed on the jurisdictional 

record made in Brewer v. SmithKline Beecham Corp., 774 F. 

Supp. 2d 720 (E.D. Pa. 2011), a similar case against many of 

the same defendants, supplemented by additional documents 

and affidavits. 

2

Thalidomide was developed in the 1950s, and from 

1957 to 1961 it was prescribed to treat a variety of conditions, 

including morning sickness during pregnancy. Emma

Wilkinson, Thalidomide Survivors To Get £20M, BBC News, 

Dec. 23, 2009, available at 

http://news.bbc.co.uk/2/hi/8428838.stm (last visited on Feb. 

11, 2013). It was taken off the market after being linked to 

widespread, serious birth defects, including malformed 

organs and shortened or nonexistent limbs. Id. In Europe, 

more than 10,000 children were born with birth defects linked 

to thalidomide before the drug was banned. Carl Zimmer, 

Answers Begin to Emerge on How Thalidomide Caused 

Defects, New York Times, Mar. 15, 2010, available at 

http://www.nytimes.com/2010/03/16/science/16limb.html?ref

=science&pagewanted=all&_r=0 (last visited on Feb. 11, 

2013). The drug was not FDA-approved during that period, 
6

Defendants, described in more depth below, are drug 

companies (and their successors-in-interest) that developed, 

designed, manufactured, and distributed thalidomide. 

According to Plaintiffs, ―newly-accessible evidence reveals‖ 

that Defendants were aware of the drug‘s risks even while 

marketing it to pregnant women, and that for the last 60 years 

they have been engaged in an elaborate cover-up to avoid 

liability for those actions. (Appellants‘ Opening Br. at 8.) 

Seeking redress for lifelong physical and emotional 

suffering, Plaintiffs filed this personal injury action against 

Defendants in the Philadelphia Court of Common Pleas on 

August 26, 2011. Within thirty days, on September 14, 2011, 

Defendants removed the case to federal court, asserting 

diversity jurisdiction. Plaintiffs then filed a motion to 

remand the action to state court, arguing that diversity 

jurisdiction is lacking and removal was improper because 

four of the Defendants – GlaxoSmithKline Holdings (―GSK 

Holdings‖), GlaxoSmithKline LLC (―GSK LLC‖), 

SmithKline Beecham Corporation (―SmithKline Beecham‖), 

and Avantor Performance Materials (―Avantor‖) – are 

Pennsylvania citizens, as is Plaintiff Steven Lucier.3 The 

 

and therefore its alleged effects were less widespread in the 

United States. Id.; see also Anita Bernstein, Formed by 

Thalidomide: Mass Torts as a False Cure for Toxic Exposure, 

97 Colum. L. Rev. 2153, 2154 (1997). 

3

There are three other defendants – Grunenthal 

U.S.A., Grunenthal GmbH, and Sanofi-Aventis U.S., Inc. –

whose citizenship is uncontested. Sanofi-Aventis and 

Grunenthal U.S.A. are citizens of both Delaware and New 

Jersey, and Grunenthal GmbH is a German citizen. 
7

District Court disagreed and denied Plaintiffs‘ motion, but it

certified that order for interlocutory review.4Johnson v. 

SmithKline Beecham Corp., 853 F. Supp. 2d 487, 498 (E.D. 

Pa. 2012). Plaintiffs then requested permission to appeal, 

which we granted on May 22, 2012. On appeal, Plaintiffs 

repeat their argument that the District Court lacks subject 

matter jurisdiction because GSK LLC, GSK Holdings, 

SmithKline Beecham, and Avantor are all citizens of 

Pennsylvania. 

GSK LLC is a large pharmaceutical company that is 

responsible for operating the U.S. division of 

GlaxoSmithKline plc, the British entity that is the ―global 

head‖ of the GlaxoSmithKline group of companies. 

(Appellees‘ Br. at 6.) It was formed on October 27, 2009, 

when its predecessor – SmithKline Beecham – was converted 

from a Pennsylvania corporation into a Delaware limited 

liability company (―LLC‖). More specifically, SmithKline 

Beecham underwent a two-step conversion, first becoming a 

Delaware corporation by filing a ―certificate of conversion‖ 

with the Delaware Secretary of State, in accordance with 

Delaware Code Title 8, Section 265, and then converting into 

a Delaware LLC under Sections 18-201 and 18-214 of the 

Delaware Limited Liability Company Act, Del. Code Ann. tit. 

6, ch. 18. The LLC was formed under Delaware law because 

it ―permits a corporation to convert to an LLC without any 

break in the continuity of the legal entity.‖ (Id. at 10.) 

 

4 As discussed in more depth below, we have 

jurisdiction to review an interlocutory order when a district 

court certifies in writing that its order involves ―a controlling 

question of law as to which there is substantial ground for 

difference of opinion.‖ 28 U.S.C. § 1292(b). 
8

The purpose of that conversion was to obtain the tax 

benefits of LLC status and thus facilitate the formation of a 

joint entity with Pfizer, Inc. called ―ViiV Healthcare,‖ which 

was created to ―develop critical treatments for HIV/AIDS at 

not-for-profit pricing.‖ (Appellees‘ Br. at 9.) According to 

Defendants, ―[i]f [SmithKline Beecham] had remained a 

corporation, it would have incurred hundreds of millions of 

dollars in unnecessary tax liability for transferring its existing 

HIV/AIDS assets to the new entity – a  ̳prohibitive‘ obstacle 

that would have prevented the venture from being financially 

viable.‖ (Id.) Following the conversion, SmithKline 

Beecham dissolved under Pennsylvania law, which allows

dissolution ―[w]henever a domestic business corporation has 

domesticated itself under the laws of another jurisdiction.‖

15 Pa. Cons. Stat. Ann. § 1980. 

Despite that change in entity form and domicile, 

SmithKline Beecham was, at least operationally, largely

unaffected by its conversion to GSK LLC. The company‘s 

headquarters is still in Philadelphia, Pennsylvania, where it 

occupies 650,000 square feet of office space and employs 

1,800 people. Its management is substantively intact. 

SmithKline Beecham‘s board of directors became GSK 

LLC‘s ―board of managers,‖ and those managers operate

from the same offices they did before, with three located in 

Philadelphia and a fourth in North Carolina. The ownership 

structure of the business is also unchanged. SmithKline 

Beecham‘s sole shareholder had been Defendant GSK 

Holdings, a Delaware corporation founded in 1999 that holds

GlaxoSmithKline plc‘s investments in the United States. 

Following the conversion, GSK Holdings became GSK 

LLC‘s sole member. Although the default rule under 
9

Delaware law provides that ―the management of a limited 

liability company shall be vested in its members,‖ Del. Code 

Ann. tit. 6, § 18-402, GSK LLC assigned that task to the 

board of managers, making it a ―manager-managed,‖ rather 

than a ―member-managed,‖ LLC.5 Therefore, both before 

and after the conversion, GSK Holdings acted solely as the 

owner, not as the operator, of the company. 

Because it is a holding company, rather than an 

operating company, GSK Holdings‘ own activities are quite 

limited, consisting mostly of approving the financial 

statements from its investments.6 It also decides whether to

pay dividends, make new investments, and approve proposed 

restructurings. GSK Holdings‘ three-member board of 

directors has the exclusive authority to control all of those 

activities, which it does through resolutions it adopts at 

quarterly and special board meetings. For most of the time 

relevant to this lawsuit, that board consisted of Michael 

 

5

That structure was established in accordance with 

Delaware law by GSK LLC‘s limited liability company 

agreement. See Del. Code Ann. tit. 6, § 18-402 (permitting 

an LLC agreement to vest management authority in a 

manager). That agreement provided that ―[t]he members of 

the Board of Directors of SmithKline Beecham Corporation 

shall continue as the initial manager of the company, 

following the conversion, without the need for further 

action.‖ (App. at 681.)

6 At all times relevant to this lawsuit, those 

investments primarily included money market investments, 

intra-group accounts, and the ownership interest in GSK 

LLC. 
10

Corrigan, a senior officer of GSK LLC based in Philadelphia, 

Julian Heslop, the chief financial officer of GlaxoSmithKline 

plc based in London, and Donald McLamb, a Wilmingtonbased employee of Wilmington Trust Services (―Wilmington 

Trust‖), a company that provides ―corporate services to 

Delaware holding companies‖ (App. at 756).7 In his capacity 

as an employee of Wilmington Trust, McLamb also serves as 

a director or officer of 50 to 75 other companies. 

Since 2001, GSK Holdings‘ board meetings have been 

held in Wilmington, Delaware at the Wilmington Trust 

headquarters.

8

 They typically last 15 to 30 minutes, and,

 

7

Those three directors were in office when discovery 

was conducted in Brewer. See 774 F. Supp. 2d at 726. Julian 

Heslop retired on March 31, 2011, and therefore was not a 

member of the board of directors at the time this case was 

removed. Plaintiffs argue that we must therefore disregard 

his role in the corporation, but they have presented no 

evidence that GSK Holdings‘ corporate structure has changed 

in the wake of Heslop‘s retirement. Moreover, they agreed to 

proceed on the record developed in Brewer, see supra note 1, 

and they themselves rely extensively on Heslop‘s deposition 

testimony. Therefore, we assume that although Heslop 

himself may no longer be carrying out the functions of GSK 

Holdings‘ London-based director, his testimony is still 

indicative of the corporation‘s structure and activities. 

8

From 1999 until 2001, the company‘s board meetings 

took place in Philadelphia, and that city was therefore listed 

in GSK Holdings‘ bylaws as the location of its headquarters 

and board meetings. Although that location changed in 2001, 

the company failed to update those bylaws until recently, 

when this litigation brought the mistake to their attention. 
11

although McLamb always attends them in person, directors 

Corrigan and Heslop often participate telephonically from 

other offices. The parties disagree about the extent of the 

actual decision-making that occurs at the meetings. Plaintiffs 

argue that GSK Holdings conducted its substantive work in 

Philadelphia and London, and that the board meetings served 

merely to ―ratify decisions made somewhere other than 

Delaware.‖ (Appellants‘ Opening Br. at 32.) Defendants, on 

the other hand, insist that GSK Holdings‘ directors ―reached 

decisions about GSK Holdings‘[] investments only at board 

meetings and based on their own independent judgment‖ 

(Appellees‘ Br. at 21), and that the board had exclusive 

―direction, control, and coordination‖ of GSK Holdings‘ 

activities (id. at 40).

Apart from those meetings, GSK Holdings‘ presence 

in Wilmington is minimal. It subleases a small, ten-by-ten 

foot office from Wilmington Trust, but that office is rarely 

visited, and it serves primarily to house GSK Holdings‘ books 

and records. GSK Holdings‘ other Wilmington activities 

consist mostly of administrative and secretarial functions, 

such as paying monthly bills for the office. Those functions 

are usually conducted by Elizabeth Bothner, GSK Holdings‘ 

sole employee, who devotes about 20 hours per year to the 

company. GSK Holdings has one Delaware bank account 

that, as of November 2010, had less than $25 in it. 

Although GSK Holdings‘ board has the sole authority 

to manage the company‘s activities, it receives various 

support services from individuals in both Philadelphia and 

London. Officers Jan Lyons and Sarah-Jane Chilver-Stainer,

9

 

9 GSK Holdings has six corporate officers. In addition 
12

who are based in Philadelphia and London, respectively,

provide tax assistance and facilitate GSK Holdings‘ 

investment transactions, as does Philadelphia-based GSK 

LLC employee Audrey Klijian. Complex tax issues are 

sometimes addressed by Helen Jones, a London-based GSK 

employee. George Brown, another GSK employee based in 

London, maintains GSK Holdings‘ financial records, and 

overall strategic guidance comes from the London office. 

The GSK Holdings board has also authorized a number of 

people in both Philadelphia and London to sign documents on 

GSK Holdings‘ behalf and enter into certain routine 

transactions for the company. Finally, directors Corrigan and 

Heslop generally prepare for board meetings at their 

respective offices, and staff at the Philadelphia office compile 

and circulate the materials that the board reviews during those 

meetings.

Beyond those limited functions, GSK Holdings has no 

operations. It produces no products, conducts no research, 

and has no sales. Rather, as is typical for a holding company, 

its role is confined to owning its interest in its subsidiary –

GSK LLC. See Black‘s Law Dictionary 298 (8th ed. 2004) 

(defining a holding company as a ―company formed to 

control other companies, [usually] confining its role to 

owning stock and supervising management‖); 19 William 

Meade Fletcher et al., Fletcher Cyclopedia of the Law of 

Corporations, glossary at 13 (perm. ed., rev. vol. 2006) 

(defining a holding company as ―a corporation whose 

principal business is the holding of stocks of other 

 

to Lyons and Chilver-Stainer, Holdings‘ three directors serve 

as officers, as does Elizabeth Bothner, the company‘s 

Wilmington-based part-time employee. 
13

corporations‖). That subsidiary, on the other hand, has 

widespread and complex operations, as it develops, produces, 

and sells pharmaceutical products nationwide. Such a 

corporate structure, in which an operating company is wholly 

owned by a holding company, has many features that are 

appealing to large business enterprises. For example, the 

holding company structure gives each subsidiary the 

autonomy to manage its business without regard to other 

business units, it allows the enterprise to prevent liabilities 

incurred by one investment from jeopardizing other 

investments, and it facilitates borrowing transactions and 

restructurings. See Robert Charles Clark, The Regulation of 

Financial Holding Companies, 92 Harv. L. Rev. 789, 816-

825 (1979) (describing the benefits of holding company 

formation). Director Heslop testified that, for those reasons, 

including a holding company within an enterprise‘s corporate 

structure ―is a very, very common thing.‖ (App. at 705.)

The last defendant – Avantor Performance Materials –

is a New Jersey corporation that is not part of the 

GlaxoSmithKline group of companies. Until 2011, it had its 

principal place of business in New Jersey. In February 2011, 

Avantor announced that it was relocating its headquarters to 

Center Valley, Pennsylvania. The corporation officially 

moved its rank-and-file employees to its new headquarters on 

September 19, 2011, five days after Defendants removed this 

action. The parties disagree on precisely when Avantor‘s 

high-level officers began directing activities from 

Pennsylvania. Plaintiffs note that Avantor‘s website, a 

corporate directory, and many technical documents and 

federal filings listed its address in Center Valley starting 

before this action was removed. They also observe that 

Avantor‘s CEO gave an interview from the new headquarters 
14

two days before the official move date. Defendants argue that 

those actions were all part of the preparation for the move, 

which multiple affidavits, an internal company memo, and a 

news story demonstrate occurred on September 19. 

The District Court reviewed all of the foregoing 

evidence and concluded none of the Defendants was a 

Pennsylvania citizen at the time of removal. It thus held that 

diversity jurisdiction is present. Johnson, 853 F. Supp. 2d at 

489, 498. Specifically, the Court found that GSK Holdings 

has its principal place of business in Wilmington, Delaware, 

where its board of directors manages its investments. Id. at 

495. It is therefore a Delaware citizen, as is GSK LLC, 

which, as a limited liability company, assumes the citizenship 

of its owner. Id. at 491. As for the remaining Defendants, the 

Court held that Avantor was still a New Jersey citizen when 

the case was removed, id. at 495, and that SmithKline 

Beecham‘s citizenship is irrelevant because, as a dissolved 

corporation whose assets and liabilities have been assumed by 

another entity, it is a nominal party with no interest in the 

litigation, id. at 496-97. Accordingly, the Court concluded it 

had jurisdiction over the case, and denied Plaintiffs‘ motion 

to remand. Id. at 498. This timely appeal followed. 

II. Jurisdiction and Standard of Review

The District Court determined that it had jurisdiction 

pursuant to 28 U.S.C. § 1332. In denying remand, it certified 

for interlocutory review the jurisdictional question of whether 

two of the Defendants – GSK Holdings and GSK LLC 

(collectively, the ―GSK Defendants‖) – are Pennsylvania 

citizens, in order to resolve the uncertainty created by 

―contrary determinations as to the GlaxoSmithKline 
15

Defendants‘ citizenship‖ that have emerged recently. Id. at 

490. To date, six judges from the Eastern District of 

Pennsylvania have ruled on the issue of the GSK Defendants‘ 

citizenship. Four of them concluded that GSK Holdings and 

GSK LLC are Pennsylvania citizens, and thus granted 

motions for remand due to lack of diversity. See Brewer v. 

SmithKline Beecham Corp., 774 F. Supp. 2d 720 (E.D. Pa. 

2011) (Savage, J.); Yeatts v. SmithKline Beecham Corp., No. 

11-6711, 2012 WL 5488907 (E.D. Pa. Mar. 29, 2012) 

(Slomsky, J.); Murray v. SmithKline Beecham Corp., No. 11-

3510, 2012 WL 5488905 (E.D. Pa. Mar. 29, 2012) (Jones, J.); 

Monroe v. SmithKline Beecham Corp., No. 10-2140, 2010 

WL 2606682 (E.D. Pa. June 25, 2010) (Joyner, J.). Two 

others, including the District Judge in this case, reached the 

opposite conclusion. See Johnson, 853 F. Supp. 2d at 489 

(Diamond, J.); White v. SmithKline Beecham Corp., No. 10-

2141, 2010 WL 3119926 (E.D. Pa. Aug. 6, 2010) 

(McLaughlin, J.). Due to that disagreement, and to the 

likelihood that it will continue absent our decision, the 

District Court certified the issue of the GSK Defendants‘ 

citizenship as ―a controlling question of law as to which there 

is substantial ground for difference of opinion.‖ Johnson, 853 

F. Supp. 2d at 490 (quoting 28 U.S.C. § 1292(b)) (internal 

quotation marks omitted). 

We therefore have jurisdiction to review the Court‘s 

order pursuant to 28 U.S.C. § 1292(b),10 which we accepted 

by granting Plaintiffs‘ request for permission to appeal. 

Although the District Court noted only the issue of the GSK 

 

10 Our references to the District Court are, unless 

otherwise noted, to the Court acting through the Honorable 

Paul S. Diamond in this case.
16

Defendants‘ citizenship as requiring interlocutory review, we 

have jurisdiction to ―address any issue fairly included within 

the certified order.‖ Yamaha Motor Corp., U.S.A. v. Calhoun, 

516 U.S. 199, 205 (1996). The certified order from which 

this appeal originated denied all Plaintiffs‘ bases for remand, 

including the alleged Pennsylvania citizenship of SmithKline 

Beecham and Avantor. We therefore have jurisdiction to 

review the District Court‘s citizenship determination for each 

of the challenged Defendants, not just for GSK Holdings and 

GSK LLC. See id. (noting that ―it is the order that is 

appealable, and not the controlling question identified by the 

district court‖ (internal quotation marks omitted) (emphasis in 

original)); cf. Morris v. Hoffa, 361 F.3d 177, 196 (3d Cir. 

2004) (―Although the scope of review on an interlocutory 

appeal is generally constrained to the questions certified for 

review by the district court, we may consider any grounds 

justifying reversal.‖ (internal quotation marks omitted) 

(emphasis in original)).

We exercise plenary review over issues of jurisdiction. 

Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart 

Mgmt., Inc. 316 F.3d 408, 410 (3d Cir. 2003). Under that 

standard, we review determinations of law de novo, but a 

court‘s factual findings regarding domicile or citizenship are 

reviewed for clear error. McCann v. Newman Irrevocable 

Trust, 458 F.3d 281, 286 (3d Cir. 2006). When reviewing for 

clear error, an appellate court ―must accept the trial court‘s 

findings‖ unless it is ―left with the definite and firm 

conviction that a mistake has been committed.‖ Inwood 

Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982) 

(internal quotation marks omitted); see also Frett-Smith v. 

Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008) (applying that 

standard to the factual findings which underpin a court‘s 
17

determination of diversity jurisdiction). Put another way, 

―[i]f the district court‘s account of the evidence is plausible in 

light of the record viewed in its entirety, the court of appeals 

may not reverse it even though convinced that had it been 

sitting as the trier of fact, it would have weighed the evidence 

differently.‖ Anderson v. City of Bessemer City, 470 U.S. 

564, 573-74 (1985). 

Plaintiffs argue that it would be unfair to apply the 

clearly erroneous standard to the factual findings in this case 

because of the contrary outcomes reached by different district 

judges on this jurisdictional issue. But varying outcomes do 

not change that we are called upon to review only the

particular order on appeal, nor do they put us in a better 

position to make our own factual findings. See Inwood Labs.,

456 U.S. at 855 (recognizing the ―unique opportunity 

afforded the trial court judge to evaluate the credibility of 

witnesses and to weigh the evidence‖). Rule 52(a) of the 

Federal Rules of Civil Procedure makes clear that ―[f]indings 

of fact ... must not be set aside unless clearly erroneous, and 

the reviewing court must give due regard to the trial court‘s 

opportunity to judge the witnesses‘ credibility.‖ Fed. R. Civ. 

P. 52(a)(6). The Supreme Court has held that that standard 

applies ―even when the district court‘s findings do not rest on 

credibility determinations, but are based instead on physical 

or documentary evidence or inferences from other facts.‖ 

Anderson, 470 U.S. at 574. We are therefore not at liberty to 

substitute our own jurisdictional facts for those credited by 

the District Court, unless that Court‘s findings are clearly 

erroneous. We reiterate, however, that our overall review is 

plenary, and thus we do not defer to the District Court‘s 

application of the law to those facts. 
18

III. Discussion

A civil action brought in state court may be removed 

by the defendant to federal district court if the federal court 

would have had original jurisdiction over the claim. 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, Brown v. Francis, 75 

F.3d 860, 865 (3d Cir. 1996), provided that the defendant is 

not a citizen of the state in which the action is brought, 28 

U.S.C. § 1441(b)(2). See also 28 U.S.C. § 1332(a) (granting 

jurisdiction in cases between citizens of different states in 

which the amount in controversy exceeds $75,000). 

Jurisdiction under § 1332(a) requires ―complete diversity,‖ 

meaning that ―no plaintiff can be a citizen of the same state as 

any of the defendants.‖ Grand Union Supermarkets, 316 

F.3d at 410. Diversity of citizenship must have existed at the 

time the complaint was filed, id., and at the time of removal, 

Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 

1985), and the burden is on the removing party to establish 

federal jurisdiction, id. ―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.‖ 

Brown, 75 F.3d at 864-65 (quoting Abels, 770 F.2d at 29)

(internal quotation marks omitted). 

Plaintiffs argue that removal of their case was 

improper because the federal courts lack subject matter 

jurisdiction over it. They contend that each of the four 

Defendants involved in this appeal is a Pennsylvania citizen, 
19

and thus that diversity jurisdiction is lacking because Plaintiff 

Steven Lucier is also a citizen of that state.11 Specifically, 

they maintain that GSK Holdings‘ principal place of business 

is in Philadelphia, and, because a limited liability company‘s

citizenship is determined by the citizenship of its members, 

both GSK Holdings and GSK LLC are therefore 

Pennsylvania citizens. Plaintiffs further argue that although 

SmithKline Beecham dissolved, Pennsylvania law preserves 

its citizenship for purposes of diversity jurisdiction. As for 

Avantor, it became a Pennsylvania citizen when it moved its 

headquarters to Center Valley, Pennsylvania, which Plaintiffs 

claim may have happened before the case was removed.

12

 

We address each of those arguments in turn and conclude, as 

the District Court did, that none of the Defendants was a 

Pennsylvania citizen at the time of removal. 

 

 

11 For the same reason, they also contend that removal 

of the case violated the rule barring removal when any 

―defendant is a citizen of the forum state.‖ Lincoln Property 

Co. v. Roche, 546 U.S. 81, 84 (2005); see 28 U.S.C. 

§ 1441(b)(2). Plaintiffs do not dispute that the amount in 

controversy exceeds $75,000, as required by 28 U.S.C. 

§ 1332(a).

12 Plaintiffs do not specify when Avantor moved its 

headquarters to Pennsylvania. Rather, they contend that 

―Avantor has not met its burden of proving that its principal 

place of business was in New Jersey, not Pennsylvania, when 

Defendants removed this action on September 14, 2011.‖ 

(Appellants‘ Opening Br. at 47.) 
20

A. Citizenship of the GSK Defendants

Section 1332(a) grants federal courts jurisdiction over 

civil actions between ―citizens of different [s]tates,‖ 28 

U.S.C. § 1332(a)(1), and it is well established that a 

corporation is considered a ―citizen‖ for purposes of that 

provision, Carden v. Arkoma Assocs., 494 U.S. 185, 189 

(1990). Since 1844, the Supreme Court has recognized that a 

corporation is ―capable of being treated as a citizen ... as 

much as a natural person.‖ Louisville, Cincinnati & 

Charleston R.R. Co. v. Letson, 43 U.S. 497, 558 (1844). It 

has taken considerably longer, however, for Congress and the 

Court to decide how a corporation‘s citizenship should be 

determined. In 1958, after years of studying the matter, 

Congress amended § 1332 to provide that a corporation is a 

citizen of both its state of incorporation and the state ―where 

it has its principal place of business.‖ 28 U.S.C. § 1332(c)(1); 

see also Hertz Corp. v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 

1189-90 (2010) (describing the legislative history of that 

enactment). But applying the phrase ― ̳principal place of 

business‘ ... proved more difficult ... than its originators 

likely expected,‖ Hertz, 130 S. Ct. at 1190, and that difficulty

resulted in ―divergent and increasingly complex

interpretations‖ by the courts of appeals, id. at 1192. In 2010,

the Supreme Court stepped in to resolve the confusion, 

holding in Hertz that ―the phrase  ̳principal place of business‘ 

refers to the place where the corporation‘s high level officers 

direct, control, and coordinate the corporation‘s activities,‖ 

which is often ―metaphorically called its  ̳nerve center.‘‖ Id. 

at 1186. 

In endorsing the ―nerve center‖ test, the Court 

―place[d] primary weight upon the need for judicial 
21

administration of a jurisdictional statute to remain as simple 

as possible,‖ id., and it rejected other approaches involving 

complex multifactor tests designed to pinpoint a corporation‘s 

―center of gravity,‖ id. at 1191. Instead, it adopted the 

comparatively simpler method of identifying the single place 

that is the corporation‘s ―brain‖ – its ―actual center of 

direction, control, and coordination‖ – which is usually its 

headquarters. Id. at 1192-93; see also id. at 1193 (―A 

corporation‘s  ̳nerve center,‘ usually its main headquarters, is 

a single place.‖). Hertz also warned courts to guard against 

jurisdictional manipulation by ensuring that a corporation‘s 

headquarters is actually its center of direction, ―not simply an 

office where the corporation holds its board meetings,‖ id. at 

1192, or ―a bare office with a computer,‖ id. at 1195. If there 

is evidence of such manipulation, Hertz explained that courts 

should look past that manipulation, and ―take as the  ̳nerve 

center‘ the place of actual direction, control, and 

coordination, in the absence of such manipulation.‖ Id.

Hertz said nothing, however, about how to determine 

the citizenship of an unincorporated entity. Such entities do 

not have the same legal status as a corporation, and the 

Supreme Court has made clear that, ―[w]hile the rule 

regarding the treatment of corporations as  ̳citizens‘ has 

become firmly established,‖ that treatment cannot be 

extended to other entities. Carden, 494 U.S. at 189; see also 

id. (―That rule must not be extended.‖ (internal quotation 

marks omitted)). In Carden v. Arkoma, the Court held that,

because unincorporated entities are not considered ―citizens‖ 

in their own right, ―diversity jurisdiction in a suit by or 

against [an unincorporated] entity depends on the citizenship 

of ... each of its members.‖ Id. at 195-96 (citations and 

internal quotation marks omitted). In other words, because 
22

such an entity is not recognized as a legal person, courts 

should look to the citizenship of the people or corporations

who comprise it to determine if diversity jurisdiction exists. 

The principal place of business of an unincorporated entity is 

therefore irrelevant to determining its citizenship. 

That rule holds true despite the substantive similarities 

between corporations and other entities. Id. at 196. The 

Court in Carden acknowledged that unincorporated entities 

can be ―functionally similar‖ to corporations, and that 

―[c]onsiderations of basic fairness and substance over form‖ 

may ―require that [they] receive similar treatment.‖ Id. (first 

alteration in original) (internal quotation marks omitted). Yet 

it nonetheless enforced the rigid jurisdictional distinction 

between corporations and other entities. See id.; see also

Hoagland ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix 

& Von Gontard, P.C., 385 F.3d 737, 739-40 (7th Cir. 2004) 

(holding that a nonbusiness corporation, even though it may 

differ from business corporations in more respects than 

unincorporated entities do, is nonetheless treated as a citizen 

for diversity jurisdiction purposes). Such adherence to 

mechanical rules may seem at first glance to be unfair, but it 

comports with the Court‘s unwavering insistence that 

jurisdictional rules ―remain as simple as possible.‖ Hertz, 

130 S. Ct. at 1186; see also Carden, 494 U.S. at 196 (―The 

resolutions we have reached above can validly be 

characterized as technical, precedent-bound, and 

unresponsive to policy considerations raised by the changing 

realities of business organization. But, ... that has been the 

character of our jurisprudence in this field ... .‖). As the 

United States Court of Appeals for the Seventh Circuit has 

explained:
23

Functional approaches to legal questions are 

often, perhaps generally, preferable to 

mechanical rules; but the preference is reversed 

when it comes to jurisdiction. When it is 

uncertain whether a case is within the 

jurisdiction of a particular court system, not 

only are the cost and complexity of litigation 

increased by the necessity of conducting an 

inquiry that will dispel the uncertainty but the 

parties will often find themselves having to start 

their litigation over from the beginning, perhaps 

after it has gone all the way through to 

judgment.

Hoagland, 385 F.3d at 739-40. For that reason, although the 

rise of new business structures may make the rigid divide 

between corporations and other entities appear outdated, the 

Supreme Court has explicitly left to Congress the task of 

―accommodating our diversity jurisdiction to the changing 

realities of commercial organization,‖ if it sees fit to do so. 

Carden, 494 U.S. at 197. 

In recognition of those principles, this and every other 

Circuit Court to face the question have held that the 

citizenship of a limited liability company ―is determined by 

the citizenship of each of its members.‖ Zambelli Fireworks 

Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010); see also 

id. at 420 (collecting cases from our sister circuits). In 

Zambelli, we noted that limited liability companies ―resemble 

corporations in many respects,‖ but we recognized that the 

Supreme Court has ―flatly rejected arguments in favor of 

extending the rule of corporate citizenship to analogously 

formed business entities.‖ Id. at 419 (citing Carden, 494 U.S. 
24

at 189). Therefore, we opted to treat limited liability 

companies as we do partnerships and other ―unincorporated 

associations,‖ and held that courts must look to the 

citizenship of a limited liability company‘s members to 

determine if there is diversity jurisdiction. Id. at 420. 

Both sides in the dispute before us now agree that,

under Zambelli, GSK LLC‘s citizenship is defined by that of 

its sole member: GSK Holdings. As a corporation, GSK 

Holdings is a citizen of its state of incorporation and of the 

state where it has its principal place of business, 28 U.S.C. § 

1332(c)(1), which Hertz defined as its ―nerve center.‖ 130 S. 

Ct. at 1186. It is undisputed that GSK Holdings is 

incorporated in Delaware, so it is clearly a Delaware citizen. 

Therefore, in order for GSK Holdings – and, by extension, 

GSK LLC – to also be Pennsylvania citizens, as Plaintiffs 

claim, GSK Holdings‘ ―actual center of direction, control, and 

coordination,‖ i.e., its nerve center, id. at 1192, must be 

located in Pennsylvania. 

Plaintiffs provide two explanations for why they 

believe GSK Holdings‘ nerve center is in Pennsylvania, both 

of which were endorsed in a trilogy of opinions from the 

Eastern District of Pennsylvania. See Patton ex rel. DanielsPatton v. SmithKline Beecham Corp., 2011 WL 6210724, at 

*5 (E.D. Pa. Dec. 14, 2011); Maldonado ex rel. Maldonado v. 

SmithKline Beecham Corp., 841 F. Supp. 2d 890, 897 (E.D. 

Pa. 2011); Brewer, 774 F. Supp. 2d at 729-30, 732.13 First, 

 

13 Those opinions were authored by the Honorable 

Timothy J. Savage. Brewer, as Judge Savage‘s first statement 

on the matter, provides the core of his analysis. See 774 F. 

Supp. 2d at 729-32. Maldonado supplemented and clarified 
25

they argue that we should consider GSK LLC‘s activities in 

the determination of GSK Holdings‘ citizenship, because, as 

Plaintiffs put it, GSK Holdings had the authority to manage 

GSK LLC, but ―delegated‖ that power to GSK LLC‘s 

managers. (Appellants‘ Opening Br. at 25.) Under that 

―delegation theory,‖ GSK Holdings‘ nerve center is in 

Philadelphia, because that is where GSK LLC‘s managers are 

based. Second, they maintain that, even if we do not consider 

GSK LLC‘s management, ―Holdings‘ own holding-company 

activities‖ are directed from Philadelphia, and thus that is its 

principal place of business. (Id. at 27.) We are unpersuaded 

by either of those arguments. 

1. The Delegation Theory

Plaintiffs‘ novel delegation theory makes GSK LLC‘s 

management the focus in assessing GSK Holdings‘ nerve 

center. Noting that the default rule under Delaware law is 

that ―the management of a limited liability company shall be 

vested in its members,‖ Del. Code Ann. tit. 6, § 18-402, 

Plaintiffs conclude, as the court did in Brewer, that ―[GSK] 

Holdings had the exclusive right and power to control, direct, 

run, manage, and operate [GSK] LLC.‖ 774 F. Supp. 2d at 

729. According to Plaintiffs, GSK Holdings opted not to 

retain that power, instead ―delegat[ing] that duty to 

Philadelphia-based managers.‖ (Appellants‘ Opening Br. at 

26 (citing Brewer, 774 F. Supp. 2d at 729 (explaining that 

GSK Holdings had delegated ―the operational decisionmaking authority and power of [GSK] LLC to [GSK] LLC‘s 

 

aspects of the Brewer holding. See 841 F. Supp. 2d at 894-

97. Patton repeats Maldonado‘s analysis. 2011 WL 

6210724, at *5.
26

officers and directors‖)).) Looking at that delegation, the 

court in Brewer concluded that ―[t]he  ̳managers‘ of [GSK] 

LLC are still part of [GSK] Holdings because they are 

managing [GSK] LLC on behalf of [GSK] Holdings.‖ 

Brewer, 774 F. Supp. 2d at 729 (emphasis in original). Based 

on that premise, Plaintiffs argue that GSK LLC‘s 

Philadelphia-based management decisions should be 

considered ― ̳corporate activities‘ for which GSK Holdings 

was responsible.‖ (Appellants‘ Opening Br. at 26.) Those 

corporate activities far outweigh GSK Holdings‘ other limited 

holding-company functions, and thus, say Plaintiffs, its 

principal place of business is in Philadelphia. As Brewer put 

it, because ―[GSK] Holdings has effectively transplanted the 

vast majority of its  ̳brain‘ or  ̳nerve center‘ to its managers in 

Philadelphia,‖ it must be considered a Pennsylvania citizen. 

774 F. Supp. 2d at 730.

 

At the outset, it is important to note that the record 

does not support that description of GSK Holdings‘ 

relationship to GSK LLC. To say that GSK Holdings 

―transplanted ... its  ̳brain‘ or  ̳nerve center‘‖ to GSK LLC‘s 

managers implies that at some point GSK Holdings‘ activities 

included directing and controlling GSK LLC. But GSK 

Holdings has never occupied such a role. It has always 

functioned solely as the owner of GSK LLC, just as it did 

when it was the sole shareholder of GSK LLC‘s predecessor, 

SmithKline Beecham. The only decision by GSK Holdings 

that arguably has affected GSK LLC‘s management was the 

decision to structure that company as a manager-managed 

LLC – in other words, GSK Holdings‘ decision not to manage 

GSK LLC. It is hard to see how that decision, which resulted 

in GSK Holdings continuing to operate as it had before 

SmithKline Beecham‘s conversion to GSK LLC, could 
27

involve the kind of transplant that Plaintiffs and Brewer

describe.14 

But even if we were to accept Brewer‘s 

characterization, adopting the delegation theory would require 

that we turn our holding in Zambelli upside down. Zambelli

and the Supreme Court opinions on which it is based, e.g., 

Carden, 494 U.S. at 189; United Steelworkers of Am. v. R.H. 

Bouligny, Inc., 382 U.S. 145, 146-47 (1965), instruct courts 

that the citizenship of an unincorporated association like a 

limited liability company is determined by looking to the 

citizenship of its members. 592 F.3d at 420. We are not 

supposed to focus on GSK LLC‘s activities; rather, precedent 

dictates that we turn our attention to the citizenship of GSK 

LLC‘s sole member, GSK Holdings. While they 

acknowledge that precedent, Plaintiffs ask us to define GSK 

Holdings‘ citizenship by contemplating its status as a member 

of GSK LLC. Put more simply, to determine the citizenship 

of a limited liability company using Plaintiffs‘ approach, we 

must look to its member, but then, if that member is a holding 

 

14 Notably, Plaintiffs identify no cases, other than 

Brewer and its progeny, that characterize the relationship 

between a manager-managed LLC and its sole member in 

such a manner. Moreover, Brewer has been rejected in at 

least two district court cases, and Plaintiffs identify no other 

districts that endorse its approach. See Jennings v. HCR 

ManorCare Inc., -- F. Supp. 2d -- , No. 12-1397, 2012 WL 

5360911, at *3 (D.S.C. Oct. 3, 2012) (―The Court declines to 

adopt the reasoning of Brewer.‖); Dalton v. Georgia-Pacific 

L.L.C., No. 12-415, 2012 WL 2072766, at *5 (D.S.C. May 4, 

2012) (same).
28

company, we must immediately look back to the limited 

liability company, reversing the Zambelli analysis entirely.15

GSK Holdings‘ allegedly ―unique‖ relationship with

GSK LLC does not justify applying that inverted approach. 

See Brewer, 774 F. Supp. 2d at 729 (describing ―the unique 

circumstance where the holding company is the sole member 

of a manager-managed limited liability company‖). 

According to Brewer, ―[w]here the sole member of a limited 

liability company is a holding company ... we are presented 

with an anomaly in applying the  ̳nerve center‘ test,‖ and we 

should consider the LLC‘s activities despite Zambelli‘s 

instruction to the contrary.16 774 F. Supp. 2d at 728-29. But 

 

15 That analysis would also not be limited to the facts 

of this case, as Brewer appears to indicate. 774 F. Supp. 2d at 

728-29; see also Maldonado, 841 F. Supp. 2d at 897 (―The 

Brewer holding is narrower than GSK makes it out to be. It 

does not apply to all limited liability companies. Nor does it 

apply to all manager-managed limited liability companies.‖). 

According to Brewer, the delegation theory applies only in 

situations ―[w]here the sole member of a limited liability 

company is a holding company that holds one constituent 

company and several intra-group accounts.‖ Id. But whether 

an LLC‘s members are holding companies, operating 

companies, or individuals, they must establish the 

management structure for the LLC, either by ―delegating‖ 

that management authority or assuming it (or some 

combination thereof). Brewer bases its holding on just that –

the member‘s decision to delegate management authority –

and there is nothing in that reasoning that limits its 

application to holding companies. 

16 Maldonado stepped back from that characterization 
29

the situation presented here is hardly anomalous. Holding 

companies are ubiquitous, especially in large business 

enterprises, and courts have been determining their nerve 

centers for decades.17 See, e.g., Taber Partners, I v. Merit 

Builders, Inc., 987 F.2d 57, 63 (1st Cir. 1993) (determining 

the nerve center of two holding companies that were partners 

in a limited partnership). The fact that the holding company 

at issue here holds an LLC rather than a corporation does not,

in itself, complicate the nerve center analysis.

The argument that we must look to GSK LLC‘s 

activities to identify GSK Holdings‘ nerve center also ignores 

the well-established rule that a parent corporation maintains 

separate citizenship from a subsidiary unless it has exerted 

 

somewhat, explaining that ―holding companies and single 

member limited liability companies are not unusual and are, 

indeed, common.‖ 841 F. Supp. 2d at 894. It explained that 

the point of Brewer was that ―where the sole member of a 

limited liability company is a holding company,‖ the rules in 

Zambelli and Hertz ―intersect,‖ which raises the ―novel‖ 

question of how the holding company‘s citizenship should be 

defined. Id. Therefore, while Maldonado may agree that 

GSK LLC‘s structure is common, it still bases its holding on 

the supposedly unique questions raised by that structure.

17 Although Hertz is a recent decision, many circuits 

applied the ―nerve center‖ test before its formal adoption by 

the Supreme Court. In fact, the First Circuit long ago 

identified the ―nerve center‖ test as the ―most appropriate in 

the case of a holding company,‖ Lugo-Vina v. Pueblo Int’l, 

Inc., 574 F.2d 41, 43 n.2 (1st Cir. 1978), because such 

companies do not have physical operations, Diaz-Rodriguez 

v. Pep Boys Corp, 410 F.3d 56, 60 (1st Cir. 2005). 
30

such an overwhelming level of control over the subsidiary 

that the two companies do not retain separate corporate 

identities. Quaker State Dyeing & Finishing Co. v. ITT 

Terryphone Corp., 461 F.2d 1140, 1142 (3d Cir. 1972); see 

also Taber Partners, 987 F.2d at 62-63 (emphasizing that, ―in 

determining a corporation‘s principal place of business, [the] 

inquiry must focus solely on the business activities of the 

corporation whose principal place of business is at issue‖). 

Plaintiffs do not allege that GSK Holdings and GSK LLC 

disregarded corporate formalities, nor do they claim that GSK 

Holdings controls its subsidiary‘s operations. In fact, they 

argue the opposite, suggesting that we consider GSK LLC‘s 

nerve center in assessing GSK Holdings‘ citizenship because 

GSK Holdings has exerted no managerial control over GSK 

LLC, which is just the opposite of what is typically required 

to consider a parent‘s and subsidiary‘s citizenships jointly.18 

 

18 Plaintiffs attempt to support their approach by citing 

our decision in Mennen Co. v. Atlantic Mutual Insurance Co., 

147 F.3d 287 (3d Cir. 1998). In that case, which was decided 

before Hertz, we held that a corporation‘s principal place of 

business was the location in which its ―day-to-day activities‖ 

were carried out. Mennen, 147 F.3d at 293. That location 

happened to also be the center of operations of a different 

company, which, pursuant to a management services contract, 

was conducting ―the practical work‖ of the company whose 

citizenship was at issue. Id. Based on that precedent, 

Plaintiffs argue that ―a court should consider services 

performed by one company on another company‘s behalf to 

determine the latter‘s principal place of business.‖ (Reply Br. 

at 1-2.) But, in addition to being of questionable utility 

because it applied what is now an outdated test for 

determining a corporation‘s principle place of business, 
31

Plaintiffs imply that that counterintuitive approach is 

required by Hertz. They note that Hertz instructs courts to 

identify a company‘s ―actual center of direction, control, and 

coordination,‖ 130 S. Ct. at 1192, and, because GSK 

Holdings exercises no control over GSK LLC‘s operations, 

they suggest that treating GSK Holdings‘ headquarters 

location as determinative of GSK LLC‘s citizenship would, in 

the words of Maldonado, ―exalt form over substance.‖ 

Maldonado, 841 F. Supp. 2d at 897. In support of that ―form 

over substance‖ argument, Plaintiffs note the seamless change 

in corporate form from SmithKline Beecham, which was 

indisputably a Pennsylvania citizen, to GSK LLC, which 

Defendants now claim is a Delaware citizen. No people, 

offices, or operations moved from one state to the other 

during that transition, and so a change in citizenship seems to 

Plaintiffs to be in conflict with Hertz‘s concentration on a 

company‘s ―actual center of direction, control, and 

coordination.‖ 130 S. Ct. at 1192. 

The argument is not without logical appeal, but it 

suffers from two significant problems. First, it is GSK 

Holdings‘ nerve center – not GSK LLC‘s – that is at issue

here. As described above, Hertz‘s ―nerve center‖ test is a 

means of identifying a corporation‘s principal place of 

 

Mennen is readily distinguishable from this case. Here, GSK 

LLC did not enter into a contract to perform GSK Holdings‘ 

corporate activities; rather, it manages its own affairs as it is 

required to do by its LLC agreement. Plaintiffs provide no 

explanation for how a contractual agreement to perform 

services on a company‘s behalf is in any way analogous to the 

establishment of the management structure of an LLC, and 

their citation to Mennen is unpersuasive. 
32

business. A limited liability company‘s citizenship is not 

defined by its principal place of business, and thus the 

location of its nerve center is not at issue for purposes for 

establishing diversity jurisdiction. Hertz therefore does not 

require that we identify the actual center of direction and 

control for GSK LLC – it requires only that we determine 

GSK Holdings‘ center of control.

More fundamentally, as troubling as those like 

Plaintiffs may find it, form matters for purposes of 

establishing jurisdiction, and the distinction between a 

corporation and an unincorporated entity has tremendous

jurisdictional significance. The Supreme Court has 

emphasized that, although a corporation has citizenship, 

unincorporated entities do not, regardless of their substantive 

similarities to corporations. Carden, 494 U.S. at 195. 

Plaintiffs may denounce that rule as elevating form over 

substance, but it is entirely consistent with the Supreme 

Court‘s approach to jurisdictional questions. See id. at 196

(explaining that adherence to rigid rules ―has been the 

character of our jurisprudence in this field‖); see also Hertz, 

130 S. Ct. at 1186 (insisting that jurisdictional rules ―remain 

as simple as possible‖). Therefore, the formal conversion of 

SmithKline Beecham to GSK LLC changes the jurisdictional 

calculus, despite the substantive continuity of business 

operations. Whereas SmithKline Beecham – a corporation –

was a citizen of the state in which it had its principal place of 

business, GSK LLC‘s citizenship is defined solely by the 

citizenship of its sole member, GSK Holdings. Plaintiffs‘ 

delegation theory is an adroit attempt to shift the focus back 

onto GSK LLC‘s nerve center, but that is contrary to the 

approach required by the Supreme Court in Carden and by us 

in Zambelli. There is nothing in Hertz to change that fact, as 
33

Hertz deals solely with the definition of a corporation‘s 

―principal place of business.‖ 

We thus reject Plaintiffs‘ delegation theory, and 

instead proceed, as the District Court in this case did, to 

determine GSK Holdings‘ citizenship by considering its own 

activities, not those of GSK LLC. 

2. GSK Holdings’ Corporate Activities

Plaintiffs argue that, even looking solely at the

activities of GSK Holdings, it must be recognized as a citizen 

of Pennsylvania. As each court to examine GSK Holdings has 

agreed, its activities are very limited in scope. Because it is a 

holding company, not an operating company, GSK Holdings 

has no sales or production, only one part-time employee, and 

little infrastructure. Instead, its activities consist primarily of 

owning its interest in GSK LLC, holding intra-company 

accounts, issuing and receiving dividends, and paying taxes. 

As the District Court put it, ―all holding companies do is 

 ̳hold,‘‖ Johnson, 853 F. Supp. 2d at 493, and GSK Holdings 

is typical in that regard. 

Hinging its decision largely on that fact, the District 

Court concluded that GSK Holdings‘ principal place of 

business is in Wilmington, Delaware. Id. at 493. Although it 

acknowledged that the company‘s ―Wilmington  ̳footprint‘ is 

certainly modest,‖ the Court ―measure[d] that footprint ... 

against the modest scope of Holdings‘[] activities.‖ Id. at 

492. Finding that GSK Holdings‘ three-person board controls 

all of its limited, ownership-related activities, and that it does 

so ―through resolutions that are considered and passed in 

Wilmington,‖ id., the Court concluded that its actual center of 
34

direction, control, and coordination is in Delaware. Id. at 

492-96; see also Hertz, 130 S. Ct. at 1192 (holding that a 

corporation‘s principal place of business is ―the place where a 

corporation‘s officers direct, control, and coordinate the 

corporation‘s activities‖). Accordingly, the Court held that 

GSK Holdings is not a Pennsylvania citizen. Johnson, 853 F. 

Supp. 2d at 493; see also id. at 495 (―Holdings‘[] nerve center 

is where its ownership decisions are made: Wilmington.‖). 

Plaintiffs argue that that conclusion contradicts Hertz,

which specifically states that an office used solely for board 

meetings ―attended by directors ... who have traveled there 

for the occasion‖ should not be considered a company‘s 

actual center of direction and control. 130 S. Ct. at 1192; see 

also id. at 1195 (warning that an ―alleged  ̳nerve center‘ [that]

is nothing more than a mail drop box, a bare office with a 

computer, or the location of an annual executive retreat‖ 

might be an attempt at jurisdictional manipulation). GSK 

Holdings‘ ten-by-ten foot office in Wilmington closely fits 

that description, and Plaintiffs contend that the evidence 

demonstrates that no substantive decision-making could have 

occurred there. As Brewer put it, ―the undisputed fact that the 

quarterly board meetings of [GSK] Holdings last no more 

than 15 or 20 minutes belies any argument that any 

operational or strategic decisions affecting the business 

activities are made during [those] brief meetings.‖ 774 F. 

Supp. 2d. at 731. Plaintiffs also dismiss the role of GSK 

Holdings‘ Wilmington-based director, Donald McLamb, 

noting that he ―performs only administrative functions‖

(Appellants‘ Opening Br. at 33), spends only about four hours 

per year conducting GSK Holdings‘ business, and serves as a 

director for numerous other companies. Citing all of those 

facts, Plaintiffs argue that no real decisions could have been 
35

made during the board meetings and that the board‘s 

decisions must have been made elsewhere and simply ratified 

in Wilmington. Therefore, Plaintiffs say, Wilmington cannot 

be GSK Holdings‘ principal place of business under Hertz, as 

it is not GSK Holdings‘ actual center of direction and control.

Again Plaintiffs‘ reasoning has force but there are 

flaws that substantially weaken it. First, as the District Court 

rightly noted, the kind of board meetings denigrated in Hertz 

were being considered in the context of a case involving ―a 

sprawling operating company,‖ with ―extensive activities 

carried out by 11,230 employees at facilities in 44 states.‖ 

Johnson, 853 F. Supp. 2d at 493. For a holding company 

such as GSK Holdings, relatively short, quarterly board 

meetings may well be all that is required to direct and control 

the company‘s limited work. As former director Julian 

Heslop explained, the board generally conducts three tasks at 

each meeting: (1) it approves or corrects the minutes from the 

previous meeting, (2) it reviews the company‘s financial 

statements with George Brown, a London-based accountant 

who provides financial services to GSK Holdings, and (3) it 

addresses ―any other business required to come before the 

meeting,‖ such as authorizing agents to sign documents, 

making changes to the officers, paying a dividend, or,

occasionally, restructuring the company‘s holdings. (App. at 

709.) Generally, such business is straightforward and takes

little time, yet it constitutes GSK Holdings‘ primary activity: 

managing its assets. The location of board meetings is 

therefore a more significant jurisdictional fact here than it was 

in Hertz, and the meetings‘ brevity does not necessarily 

reflect an absence of substantive decision-making.

19

 

 

19 The significance of that fact is further demonstrated 
36

Second, the District Court‘s factual finding that GSK 

Holdings‘ board controls its investment activities through 

consensus-based resolutions at its meetings in Wilmington is 

not clearly erroneous. See McCann, 458 F.3d at 286 

 

by the numerous post-Hertz cases that have determined the 

principal place of business of a holding company by looking 

to the location in which its officers or directors meet to make 

high-level management decisions. See Lewis v. Lycoming, 

No. 11-6475, 2012 WL 2422451, at *5 (E.D. Pa. June 27, 

2012) (concluding that a holding company‘s nerve center is 

the place where its officers made major business decisions, 

not the location of its ―public persona‖); Freedom Envtl. 

Servs., Inc. v. Borish, No. 12-665, 2012 WL 2505723, at *1 

(M.D. Fla. June 20, 2012) (considering the location of a 

holding company‘s board meetings in assessing its 

citizenship); Sebastian Holdings, Inc. v. Kugler, No. 08-1131, 

2012 WL 1190837, at *3 (D. Conn. Mar. 30, 2012)

(determining a holding company‘s citizenship based on the 

location in which its owner and director made management 

decisions); Balachander v. AET Inc., No. 10-4805, 2011 WL 

4500048, at *1 (S.D. Tex. Sept. 27, 2011) (relying on the 

location in which the company‘s chief officers make 

management decisions); Ortiz v. Chesapeake Operating, Inc., 

No. 11-0055, 2011 WL 3584832, at *2 (W.D. La. Aug 12, 

2011) (looking to where the holding company‘s directors 

make overall policy decisions, not to where its subsidiaries 

manage their day-to-day activities); cf. Astra Oil Trading N.V. 

v. Petrobras Am. Inc., No. 09-1274, 2010 WL 3069793, at *3 

(S.D. Tex. Aug. 4, 2010) (declining to use the location of the 

board of directors, but only because the company‘s sole 

officer had ―significant independent authority as CEO ... to 

direct, control, and coordinate [the company‘s] activities‖). 
37

(applying clear error review to factual findings regarding 

citizenship and domicile). Each of GSK Holdings‘ three 

directors testified that only the board can authorize GSK 

Holdings to take a new action relating to its investments, and 

that the board does so by adopting resolutions at quarterly or 

special board meetings. None of GSK Holdings‘ individual 

directors or officers can take ―new, unauthorized actions‖ on 

GSK Holdings‘ behalf, nor can GlaxoSmithKline plc, its 

ultimate parent in London, do so. (App. at 707-08.) The 

directors further explained that although individuals in 

Philadelphia and London provide various services to the 

board and sometimes sign documents, receive money, or pay 

taxes for GSK Holdings, the scope of their actions is 

―constrained by what the Board of Directors authorizes.‖ 

(App. at 714.) Those individuals cannot make fundamental

decisions – that power lies solely with the board. 

The evidence also supports the District Court‘s finding

that the board actually makes its decisions during its 

meetings, rather than simply ratifying decisions made 

elsewhere, as Plaintiffs claim. Although it is uncontested that 

―strategic direction and guidance ... emanate[] from London‖ 

(App. at 710), as they likely do for all of the companies in the 

GSK group, GSK Holdings‘ directors insist that the board‘s

decisions are not preordained. On the contrary, director 

Heslop explained that ―[w]e sit down as a Board at our 

meetings ... and go through the papers and make the 

decisions required of those meetings.‖ (App. at 709.) Each 

director, including Wilmington-based director Donald 

McLamb, testified that he exercises his independent judgment 

in making those decisions and is not controlled by the other 

directors, officers, or corporate entities. In fact, McLamb

explained that, as a Certified Public Accountant (―CPA‖) with 
38

significant experience working under Delaware corporate 

law, he occupies an important role on the board, providing

―assurance that [the] company will operate within the laws 

and proper corporate governance of Delaware,‖ ―looking out 

for the best interest of the shareholders‖ as an independent 

director, and ensuring that the board‘s decisions ―are 

reasonable in nature and make good business sense.‖ (App. 

at 785.) Such evidence, credited by the District Court, is 

enough to support the finding that the board engages in 

substantive decision-making during its meetings in 

Wilmington. See Anderson, 470 U.S. at 573-74 (holding that 

a court of appeals may not reverse a district court‘s factual 

finding if that court‘s ―account of the evidence is plausible in 

light of the record viewed in its entirety‖).20 

 

20 Our concurring colleague disagrees, and says that 

―[t]he record does not support‖ the District Court‘s finding. 

(Concurring Op. at 6.) Rather, in his view, there is ―no 

doubt‖ that any direction, control, or coordination exercised 

by GSK Holdings‘ board must have ―been in line with the 

wishes of Heslop.‖ (Id.) While our colleague is free to 

harbor his doubts, we are bound to a standard of review that 

does not permit us ―to conduct a de novo review of the 

evidence.‖ Newark Branch, N.A.A.C.P. v. City of Bayonne, 

134 F.3d 113, 120 (3d Cir. 1998) (internal quotation marks 

omitted). Under Rule 52 of the Federal Rules of Civil 

Procedure, ―[f]indings of fact, whether based on oral or other 

evidence, must not be set aside unless clearly erroneous.‖ 

Fed. R. Civ. P. 52(a)(6). The District Court considered the 

evidence, including statements by the board members, all of 

whom said they exercised independent judgment at board 

meetings and that the resolutions they adopted were not 

preordained. The District Court thus had a reasonable basis 
39

Finally, despite Plaintiffs‘ insistence to the contrary, 

Hertz actually reinforces the District Court‘s conclusion that, 

in light of those factual findings, GSK Holdings‘ nerve center

is in Wilmington. Even while cautioning courts to identify a 

corporation‘s actual center of direction and control, Hertz

―place[d] primary weight upon the need for judicial 

administration of a jurisdictional statute to remain as simple 

as possible.‖ 130 S. Ct. at 1186. The Supreme Court 

recognized that adopting the ―nerve center‖ test would not 

resolve every ambiguity, and that ―there will be hard cases.‖ 

Id. at 1194. In fact, the Court specifically observed that, ―in 

this era of telecommuting, some corporations may divide their 

command and coordinating functions among officers who 

work at several different locations, perhaps communicating 

over the Internet.‖ Id. Rather than requiring courts facing 

such situations to weigh those different functions, Hertz

reminded us that the ―nerve center‖ test ―points courts in a 

single direction, towards the center of overall direction, 

control, and coordination.‖ Id.

 

on which to draw a factual conclusion about who was making 

decisions for GSK Holdings and where they were doing it. 

We are not at liberty to substitute our own reading of the facts 

when, as here, there is evidence directly supporting the 

District Court‘s finding. See McCann, 458 F.3d at 268 

(―[O]ur sole function is to review the record to determine 

whether the findings of the District Court were clearly 

erroneous, i.e., whether we are left with a definite and firm 

conviction that a mistake has been committed.‖ (internal 

quotation marks omitted)). 
40

Here, it is clear that people in both Philadelphia and 

London contribute to GSK Holdings‘ operations. From 

London, George Brown prepares the financial documents 

reviewed during board meetings, Helen Jones oversees 

complex tax matters, Sarah-Jane Chilver-Stainer facilitates 

certain investments, and Julian Heslop‘s staff provide overall 

strategic guidance. From Philadelphia, Jan Lyons prepares 

GSK Holdings‘ tax return and provides tax advice, Audrey 

Klijian facilitates other investments and payments, and 

Michael Corrigan prepares for board meetings and carries out 

actions on GSK Holdings‘ behalf. Faced with this situation, 

we ―do not have to try to weigh‖ those various corporate 

functions to determine GSK Holdings‘ principal place of

business, but rather should look ―towards the center of overall 

direction, control, and coordination.‖ Id. All of the functions 

described above are intended to inform or facilitate the 

decisions of GSK Holdings‘ board of directors, which has the 

sole authority to adopt binding resolutions affecting the 

corporation‘s investments. Thus, the ―single direction‖ in 

which the nerve center test points is toward the location of 

those decisions. As the District Court ably concluded from 

the evidence, that location is in Wilmington, Delaware.21 

 

21

 In so concluding, we are not, as our concurring 

colleague implies, carving out a holding-company exception 

to Hertz. Rather, we are faithfully applying Hertz‘s 

instruction to identify ―the actual center of direction, control, 

and coordination‖ of a corporation. 130 S. Ct. at 1192. To do 

so, we first have to acknowledge the nature of the 

corporation‘s activities, as it is difficult to locate a 

corporation‘s brain without first identifying its body. In this 

case, GSK Holdings‘ sole function is to hold assets. 

Therefore, the question under Hertz is where that activity is 
41

 

controlled and directed. When, as here, the evidence suggests 

that the board of directors actually controlled that activity, we 

do not think that Hertz requires us to ignore that fact and look 

instead to the location of certain corporate officers. 

Moreover, even if we were to look to GSK Holdings‘ officers 

(three of whom are also the members of the board of 

directors), the conclusion regarding the company‘s nerve 

center is not as clear as our colleague suggests. GSK 

Holdings has two officers in London, two in Philadelphia, and 

two in Wilmington, and each performs different functions. If 

we were to weigh those functions, we might agree that some 

of the most important work is performed in London, but that 

involves the type of balancing that Hertz eschews, and, in any 

event, it is not necessary when the facts, as found by the 

District Court, suggest that this particular corporation did not 

vest the relevant decision-making in its officers.

Our conclusion on this record does not mean that the 

location of board meetings will always determine a holding 

company‘s citizenship. If a holding company‘s officers, not 

its directors, actually control the company‘s core activities, or 

if the company‘s board makes decisions in one location and 

simply ratifies them in another, the holding company is 

unlikely to be a citizen of a state simply because that is where 

it holds its board meetings. Here, however, the record 

supports the conclusion that, although an array of support

services were provided from different locations, the board 

controlled the company‘s core activities through decisionmaking at board meetings located in Delaware. In such an 

instance, Hertz encourages rather than discourages our 

looking to the location of the board meetings as the center of 

direction and control. 
42

3. Jurisdictional Manipulation

Having concluded that GSK Holdings‘ nerve center is 

in Delaware, we now turn briefly to Plaintiffs‘ contention that 

that outcome is impermissible under Hertz because it would 

condone jurisdictional manipulation. Hertz cautioned that, ―if 

the record reveals attempts at [jurisdictional] manipulation 

...[,] the courts should instead take as the  ̳nerve center‘ the 

place of actual direction, control, and coordination, in the 

absence of such manipulation.‖ Id. at 1195. Plaintiffs argue 

that there is evidence of jurisdictional manipulation here and 

that we should not encourage that manipulation by 

concluding that GSK Holdings is a Delaware citizen. 

Specifically, they note that GSK Holdings altered its bylaws 

and sought to amend government documents associating it 

with a Philadelphia address. They allege that GSK Holdings 

made those post-discovery alterations to ―bolster [its] 

contention ... that [its] principal place of business is in 

Wilmington‖ (Appellants‘ Opening Br. at 46 (quoting 

Brewer, 774 F. Supp. 2d at 731)), and thus facilitate its 

removal of ―hundreds of personal injury cases‖ that 

previously were in Pennsylvania state court (id. at 45). 

Brewer agreed, commenting that the post-discovery alteration 

―smacks of jurisdictional manipulation.‖22 774 F. Supp. 2d at 

730.

 

22 Brewer was careful to explain that it did not consider 

the transition from SmithKline Beecham to GSK LLC to 

itself be an attempt at jurisdictional manipulation, noting that 

―[GSK] LLC was formed to accomplish a legitimate business 

purpose and not to manipulate jurisdiction for litigation 

purposes.‖ 774 F. Supp. 2d at 730. Plaintiffs conceded that 

point at oral argument, but they suggest that GSK Holdings 
43

The record, however, squarely contradicts that

contention. Although Defendants concede that, until recently,

GSK Holdings‘ bylaws indicated that its headquarters and 

board meetings were in Philadelphia, as did a number of 

summaries of government contracts produced by government 

agencies, Defendants also presented uncontested evidence 

that those documents were inaccurate, and thus they could not 

have affected GSK Holdings‘ principal place of business. See 

Hertz, 130 S. Ct. at 115 (rejecting the notion that ―the mere 

filing of a form ... listing a corporation‘s  ̳principal executive 

offices‘ would, without more, be sufficient proof to establish 

a corporation‘s  ̳nerve center‘‖); Mennen Co. v. Atlantic Mut. 

Ins. Co., 147 F.3d 287, 293-94 (3d Cir. 1998) (rejecting 

representations of a company‘s principal place of business 

that ―run contrary to the empirical facts with which the 

jurisdictional inquiry is concerned‖). Adjusting those 

documents to reflect the reality of GSK Holdings‘ operations 

therefore did not affect jurisdiction, much less ―manipulate‖ it 

improperly. Furthermore, although Plaintiffs express concern 

that GSK Holdings could easily manipulate jurisdiction by 

changing the location of its board meetings, they do not allege 

that that actually occurred here. Had GSK Holdings moved 

its board meetings in anticipation of litigation, the analysis of 

this issue could very well be different, but GSK Holdings‘ 

board has been meeting in Wilmington since 2001. There is 

simply no evidence of jurisdictional manipulation, and the 

District Court properly concluded that GSK Holdings‘ 

 

may have located its meetings in Delaware to gain a 

jurisdictional benefit. They presented no evidence of such an 

intent, however, and that suggestion is belied by the fact that 

GSK Holdings began holding its board meetings in Delaware 

long before GSK LLC was formed. 
44

principal place of business has consistently been in Delaware. 

The conclusion thus remains that, as GSK Holdings is GSK 

LLC‘s sole member, neither of the GSK Defendants is a 

Pennsylvania citizen.23

B. Citizenship of the Remaining Defendants

Plaintiffs‘ fall-back argument is that SmithKline 

Beecham and Avantor Performance Materials are 

Pennsylvania citizens, which, if true, would defeat diversity 

 

23 Our concurring colleague worries about 

manipulation in future cases, expressing concern that our 

approach ―will encourage parties to shift the location or 

formal authority of their corporate boards in order to create 

citizenship where those board meetings are held.‖ 

(Concurring Op. at 8.) We repeat, however, that evidence of 

manipulation – which is entirely lacking here – may well alter 

the calculus. If there is such evidence, Hertz authorizes 

courts to disregard the attempts at manipulation, so the 

expressed concern is inordinate. Of much greater concern 

would be a rule in keeping with our colleague‘s focus on the 

location of strategic decision-making, as it would risk 

disregarding the distinctions among the various corporate 

entities that often comprise large business enterprises. Julian 

Heslop‘s team in London likely made strategic decisions that 

guided the activities of all of the corporations in the GSK 

group. Under our colleague‘s approach, London could 

therefore be considered the ―brain‖ of each and every GSKrelated corporation, thus defining all of their citizenships. 

Such an outcome would disregard our rule that parent and 

subsidiary corporations retain separate corporate identities. 

See Quaker State, 461 F.2d at 1142. 
45

jurisdiction even though the GSK Defendants are citizens of 

Delaware. See 28 U.S.C. § 1332(a)(1) (requiring complete 

diversity). They contend that, although SmithKline Beecham 

converted to GSK LLC and dissolved as a Pennsylvania 

entity, Pennsylvania law preserves its citizenship for diversity 

jurisdiction purposes. As for Avantor, Plaintiffs concede that 

the corporation officially moved its operations from New 

Jersey to Pennsylvania five days after Defendants removed 

this action, but they suggest that Avantor‘s leadership may 

have already been operating from Pennsylvania at the time of 

removal. The District Court disagreed on both counts, 

finding that Avantor‘s headquarters moved at the same time 

as the rest of its operations, Johnson, 853 F. Supp. 2d at 496, 

and concluding that SmithKline Beecham‘s preserved 

citizenship is irrelevant because it is a nominal party that 

lacks a ―real interest in the litigation,‖ id. (internal quotation 

marks omitted).

24

 We see no reason to disturb those rulings.

1. SmithKline Beecham

―[T]he  ̳citizens‘ upon whose diversity a plaintiff 

grounds jurisdiction must be real and substantial parties to the 

 

24 The District Court did not specifically address 

SmithKline Beecham‘s citizenship in its discussion of 

diversity jurisdiction, but Plaintiffs raised SmithKline‘s 

citizenship as a basis for remand, and the Court analyzed 

whether the company retained an interest in the litigation 

before denying Plaintiffs‘ request. Johnson, 853 F. Supp. 2d 

at 489, 496-97. Therefore, we understand that it declined to 

treat SmithKline as a Pennsylvania citizen due to its 

conclusion that the company was not a ―real party in interest‖ 

to the controversy. Id. at 497. 
46

controversy.‖ Navarro Savings Ass’n v. Lee, 446 U.S. 458, 

460 (1980). ―Thus, a federal court must disregard nominal or 

formal parties,‖ id. at 461, and can base its jurisdiction only 

upon the citizenship of parties with ―a real interest in the 

litigation,‖ Bumberger v. Ins. Co. of N. Am., 952 F.2d 764, 

767 (3d Cir. 1991). 

Plaintiffs are correct that, generally speaking,

Pennsylvania law preserves for a limited time a dissolved 

corporation‘s interest in litigation against it. The

Pennsylvania code provides that, ―[e]very business 

corporation that is dissolved ... shall, nevertheless, continue

to exist for the purpose of ... prosecuting and defending 

actions or proceedings by or against it ... .‖ 15 Pa. Cons. 

Stat. Ann. § 1978. It also ensures that the dissolution of a 

corporation does ―not eliminate nor impair any remedy 

available to or against‖ it for a period of two years. Id.

§ 1979. We have held that when such a state statute renders a 

dissolved corporation ―sufficiently alive to sue,‖ the 

corporation also retains its citizenship for purposes of 

diversity jurisdiction. Stentor Elec. Mfg. Co. v. Klaxon Co., 

115 F.2d 268, 271 (3d Cir. 1940), rev’d on other grounds, 

313 U.S. 487 (1941); see also Ripalda v. Am. Operations 

Corp., 977 F.2d 1464, 1468 (D.C. Cir. 1992) (―[A] state 

statute extending the life of a dissolved corporation for the 

purpose of being sued also preserves the corporation as a 

citizen of the state of incorporation for the purpose of 

determining diversity of citizenship.‖). Accordingly, 

SmithKline Beecham‘s dissolution as a Pennsylvania 

corporation did not, standing alone, destroy its Pennsylvania 

citizenship or the import of that citizenship.

25

 

 

25 SmithKline dissolved on October 27, 2009, not quite 
47

But SmithKline Beecham did not simply dissolve – it 

―domesticated itself under the laws of another jurisdiction,‖ 

15 Pa. Cons. Stat. Ann. § 1980, becoming a Delaware 

corporation and then converting to a Delaware limited 

liability company. See Del. Code Ann. tit. 8, § 265 

(regarding conversion of a foreign entity into a Delaware 

corporation); id. tit. 6, § 18-214 (regarding conversion of a 

Delaware corporation into a Delaware LLC). That company 

– GSK LLC – has stepped into SmithKline Beecham‘s shoes, 

and, under Delaware law, all of SmithKline Beecham‘s

―debts, liabilities and duties‖ now lie with GSK LLC. Id. tit. 

6, § 18-214(f); id. tit. 8, § 265(f).26 SmithKline Beecham thus 

 

two years before Plaintiffs filed their complaint. See 15 Pa. 

Cons. Stat. Ann. § 1979 (preserving remedies against a 

dissolved company for two years). 

26 Those two provisions govern, respectively, the 

transition from a foreign corporation to a Delaware 

corporation, and from a Delaware corporation to a Delaware 

LLC. Title 8, § 265(f) provides that:

When an other entity has been converted to a 

corporation of this State pursuant to this 

section, the corporation of this State shall, for 

all purposes of the laws of the State of 

Delaware, be deemed to be the same entity as 

the converting other entity. ... [A]ll rights of 

creditors and all liens upon any property of such 

other entity shall be preserved unimpaired, and 

all debts, liabilities and duties of the other entity 

that has converted shall remain attached to the 

corporation of this State to which such other 

entity has converted, and may be enforced 
48

has no actual interest in the outcome of the litigation, making 

it a ―nominal party.‖ See Bumberger, 952 F.2d at 767

(explaining that a ―nominal party‖ is one that lacks ―a real 

interest in the litigation‖); see also Strotek Corp. v. Air 

Transp. Ass’n of Am., 300 F.3d 1129, 1133 (9th Cir. 2002) 

(holding that a dissolved entity whose liabilities had been 

transferred to a different entity is not a real party in interest). 

Therefore, although SmithKline Beecham may technically 

still be a Pennsylvania citizen, we must disregard its 

citizenship for purposes of establishing diversity 

jurisdiction.27 

 

against it to the same extent as if said debts, 

liabilities and duties had originally been 

incurred or contracted by it in its capacity as a 

corporation of this State. 

Del. Code Ann. tit. 8, § 265(f). The language of Title 6, § 18-

214(f) is very similar, providing, inter alia, that:

[A]ll debts, liabilities and duties of the other 

entity that has converted shall remain attached 

to the domestic limited liability company to 

which such other entity has converted, and may 

be enforced against it to the same extent as if 

said debts, liabilities and duties had originally 

been incurred or contracted by it in its capacity 

as a domestic limited liability company.

Del. Code Ann. tit. 6, § 18-214(f). 

27 For the same reason, SmithKline‘s apparent failure 

to consent to removal also does not provide a basis for 

remand. Although removal generally requires ―unanimity

among the defendants,‖ that requirement does not extend to 

nominal parties. Balazik v. Cnty. of Dauphin, 44 F.3d 209, 
49

 

2. Avantor Performance Materials

Avantor‘s citizenship also does not provide a basis for 

remand. Plaintiffs argue that Defendants, who bear the 

burden of proof, have ―not presented any evidence that 

[Avantor‘s] officers directed, controlled, and coordinated its 

activities in New Jersey, rather than Pennsylvania, as of the 

date of removal.‖ (Appellants‘ Opening Br. at 48.) Although 

Plaintiffs concede that the corporation officially moved its 

operations from New Jersey to Pennsylvania after Defendants

removed this action, they suggest that Avantor‘s leadership 

may have begun operating from Pennsylvania before 

removal. The District Court saw things differently, finding 

that Avantor‘s headquarters moved from New Jersey to 

Pennsylvania at the same time as its rank-and-file employees

– ―five days after Defendants removed the case.‖ Johnson, 

853 F. Supp. 2d at 495. Based on that finding, the Court 

concluded that, ―at all relevant times, Avantor was a citizen 

of New Jersey, not Pennsylvania.‖ Id. 

The date when Avantor‘s officers began controlling 

the company from Pennsylvania is purely a question of fact, 

and we therefore review the District Court‘s determination for 

clear error. McCann, 458 F.3d at 286. The Court based its 

finding on two affidavits from Avantor‘s general counsel, an 

internal company memorandum, and a newspaper report, each 

of which indicates that the entire company moved into its new 

 

213 (3d Cir. 1995); see also 28 U.S.C. § 1446(b)(2)(A) 

(requiring that ―all defendants who have been properly joined 

and served must join in or consent to the removal of the 

action‖).
50

Pennsylvania headquarters on September 19, 2011, after the 

case was removed. In response, Plaintiffs point to evidence 

that a number of corporate documents listed Avantor‘s 

Pennsylvania address prior to removal, and the fact that its

CEO gave an interview from the new headquarters two days 

before the move (which, notably, is still after the date of 

removal). As the District Court explained, however, none of 

that evidence contradicts Avantor‘s account of the actual 

move, Johnson, 853 F. Supp. 2d at 495, and we cannot say 

that the Court‘s finding was clearly erroneous. Given its view 

of the facts, the District Court was correct to conclude that 

Avantor‘s nerve center was in New Jersey at all times 

relevant to this litigation, as its New Jersey headquarters was 

its actual center of direction and control at the time the 

complaint was filed and at the time of removal.

IV. Conclusion

The District Court rightly held that GSK LLC and 

GSK Holdings are both citizens of Delaware, that SmithKline 

Beecham is a nominal party, and that Avantor was a citizen of 

New Jersey at the time this case was removed. As none of 

those Defendants was, at the time of removal, a citizen of a 

state where Plaintiffs are citizens, the parties satisfy the 

diversity of citizenship requirement of 28 U.S.C. § 1332. The 

District Court thus had original jurisdiction over the matter, 

making removal proper, 28 U.S.C. § 1441(a), and we must

affirm the order denying Plaintiffs‘ motion for remand. 
51

Glenda Johnson, et al. v. SmithKline Beecham Corp., et al., 

Nos. 12-2561/2/3/4/5

AMBRO, Circuit Judge, concurring in part and concurring in 

the judgment

I agree with my colleagues that the District Court

properly denied Plaintiffs‘ motion to remand this case to state 

court. Defendants have met their burden of demonstrating 

that complete diversity exists between the opposing parties. 

Plaintiffs are citizens of Louisiana and Pennsylvania. Their 

arguments that Defendants—including GlaxoSmithKline 

Holdings (―GSK Holdings‖ or ―Holdings‖) and 

GlaxoSmithKline LLC (―GSK LLC‖)—are also citizens of 

Pennsylvania I find wanting for the reasons set out in Judge 

Jordan‘s comprehensive and well-crafted opinion. As that 

opinion notes, the citizenship of GSK LLC depends on the 

citizenship of its sole member,28 GSK Holdings, which is 

 

28 It is undisputed that GSK LLC is headquartered in 

Pennsylvania, where it operates its pharmaceutical business, 

and would not be diverse from Plaintiffs if it were deemed a 

citizen of its principal place of business. Thus our case is 

made more complicated by the doctrinal rule that 

unincorporated entities are treated like partnerships, instead 

of corporations, for diversity purposes. Carden v. Akroma
52

 

Assocs., 494 U.S. 185 (1990); Zambelli Fireworks Mfg. Co. v. 

Wood, 592 F.3d 412 (3d Cir. 2010). This test has been 

widely criticized. See, e.g., Christine M. Kailus, Note, 

Diversity Jurisdiction and Unincorporated Businesses: 

Collapsing the Doctrinal Wall, 2007 U. Ill. L. Rev. 1543; 

Debra R. Cohen, Limited Liability Company Citizenship: 

Reconsidering an Illogical and Inconsistent Choice, 90 Marq. 

L. Rev. 269 (2006); Robert J. Tribeck, Cracking the 

Doctrinal Wall of Chapman v. Barney: A New Diversity Test 

for Limited Partnerships and Limited Liability Companies, 5 

Widener J. Pub. L. 89 (1995). Although this is not the case to 

revisit our holding in Zambelli (the issue was not even briefed

and, in any event, Zambelli follows the lead of the Supreme 

Court in Carden), further understanding in this area may 

make the issue more pressing, especially if LLCs continue to 

complicate jurisdictional determinations. Perhaps Congress is 
53

deemed for purposes of diversity jurisdiction a citizen ―of the 

State or foreign state where it has its principal place of 

business.‖ 28 U.S.C. § 1332(c)(1). 

I write separately because I cannot agree with the

conclusion in Part III.A.2 of the majority opinion that GSK 

Holdings‘ principal place of business is Wilmington,

Delaware, where its board of directors holds very brief

quarterly meetings. The parties disputed whether Holdings‘ 

principal place of business was Delaware or Pennsylvania, 

and the record is limited by their adherence to this dichotomy. 

But I believe that the facts and law point to a third option, that 

GSK Holdings‘ principal place of business is the United 

Kingdom, where the company‘s strategic direction is 

determined. Although our difference of opinion does not 

affect the outcome of this case, I believe that my colleagues‘

conclusion is in tension with Hertz Corp. v. Friend, 559 U.S. 

77, 130 S. Ct. 1181 (2010), and, unless Hertz is changed or 

clarified by the Supreme Court, sets an incorrect precedent 

that will affect corporate citizenship rulings in future cases. 

I.

 

most likely to effect change, as it did under the Class Action 

Fairness Act of 2005, 28 U.S.C. § 1332(d)(10) (―[f]or the 

purpose of this section . . . an unincorporated association shall 

be deemed to be a citizen of the State where it has its 

principal place of business‖). 
54

In Hertz, the Supreme Court defined a corporation‘s 

principal place of business under 28 U.S.C. § 1332(c)(1) as 

―the place where a corporation‘s officers direct, control, and 

coordinate the corporation‘s activities,‖ called its ―nerve 

center.‖ 130 S. Ct. at 1192 (emphasis added). That nerve 

center is ―not simply an office where the corporation holds its 

board meetings (for example, attended by directors and 

officers who have traveled there for the occasion).‖ Id.

While acknowledging this limitation, my colleagues conclude 

that the location of the board of directors‘ meetings takes on 

increased jurisdictional significance when the entity involved 

is a holding company such as GSK Holdings. Majority Op. at 

34–35. Their analysis has the effect of treating holding 

corporations differently than operating corporations.

Without clarification from the Supreme Court, I am 

skeptical that a corporation‘s status as a holding company 

changes the Hertz analysis. True, holding companies are 

different from operating companies because they hold and 

invest assets rather than manufacture, service, or sell. But 

whether a corporation holds or operates tells us little about its

―actual center of direction, control, and coordination,‖ 

metaphorically called its ―brain‖ or ―nerve center.‖ Hertz, 

130 S. Ct. at 1192–93. The terms ―hold‖ and ―operate‖ refer 

to what a corporation does with the assets it owns, but not 

necessarily who controls its actions and how extensive those 

actions may be. As the Court of Appeals for the First Circuit 

acknowledged in Taber Partners, many holding companies

are more than lifeless corporate structures. They may be 

quite active in investing or managing their assets. Taber 

Partners, I v. Merit Builders, Inc., 987 F.2d 57, 63–64 n.9 

(1st Cir. 1993) (explaining that the holding companies in that 

case ―operate out of New York,‖ which is the location of 

their office, employees, bank accounts, working capital 

accounts, corporate books and records, and board meetings). 

Because holding companies have their own corporate 
55

operations (though not as extensive as a typical operating 

company), I don‘t see the need to distinguish holding 

companies from the operating company addressed in Hertz. 

My colleagues cite no case where a court has relied 

solely on the location of the board of directors‘ meeting to 

determine a holding company‘s principal place of business, 

nor has my research revealed one. Indeed, in all of the cases I 

have found—including all of the cases cited by my 

colleagues, see Majority Op. at 35 n.19—district courts have

determined the actual place of control of holding companies 

by considering the location, responsibility, and functions of 

corporate officers, just as Hertz requires. See, e.g., Lewis v. 

Lycoming, No. 11-6475, 2012 WL 2422451, at *5–6 (E.D. 

Pa. June 27, 2012) (determining nerve center based on place 

of review of monthly financial reports and strategic plans, 

candidate interviews, and personnel decisions); Sebastian 

Holdings, Inc. v. Kugler, No. 08-1131, 2012 WL 1190837, at 

*3 (D. Conn. Mar. 30, 2012) (determining nerve center based 

on officer‘s travel schedule, office locations, and meetings 

with strategic advisors). 

As district courts seem to have had no trouble applying 

the Hertz test to holding companies, I am unpersuaded by the 

majority‘s argument that board of directors‘ meetings should 

be considered for the sake of administrative simplicity. If 

simplicity is the goal of a rule, no doubt it is quite simple to 

rule that a holding company, which holds and invests assets 

entrusted to it, is a citizen where its directors decree formally 

what those investments will be. But for now the test is what

the brain tells the body to do, and here I do not think that 

brain is in Delaware. 
56

II.

In determining a corporation‘s brain or nerve center, 

Hertz has us look to where the corporation‘s officers make 

leadership decisions about the company. 130 S. Ct. at 1193. 

In our case, I believe that is the United Kingdom, where GSK 

Holdings‘ ―strategic direction and guidance . . . emanates

from.‖ 29 App. at 710. Julian Heslop, GSK Holdings‘ thenhighest ranking officer and stationed in the United 

Kingdom,30 testified that his staff there produces the ―strategy 

and strategic formulation‖ for the company and ―anything 

that impinges upon Holdings . . . that relates to strategic 

formulation.‖ Id. at 710, 715. Similarly, ―investment 

decisions for GSK Holdings,‖ a principal activity of a holding 

company, are made under the direction of its officer SaraJane Chilver-Stainer, who is also based in the U.K. Id. at 

684. 

 

29 Like my colleagues, I am concerned solely with 

GSK Holdings‘ principal place of business and not the nerve 

center of its parent or subsidiary companies. We have no 

reason to disregard Holdings‘ separate corporate identity. 

Quaker State Dying & Finishing Co. v. ITT Terryphone 

Corp., 461 F.2d 1140 (3d Cir. 1972). 

30 Heslop retired prior to this case‘s removal, but the 
57

In contrast, relatively little is done in Delaware at GSK 

Holdings‘ perfunctory quarterly board meetings, which last 

from 15 to 30 minutes. Id. at 686. Two of the directors, 

Heslop and Michael Corrigan, often participate by phone 

from their offices outside of Delaware. Id. at 695, 823. 

When he did attend in person, Heslop spent only enough time 

in Wilmington to attend Holdings‘ short Board meeting. Id. 

at 969. Often only the third director, Donald McLamb, a 

Wilmington Trust Services employee who is a director for 

dozens of other companies and spends less than ten hours per 

year on GSK Holdings, is present in Delaware. Id. at 756–57; 

761–62. Board meetings consist primarily of three tasks: (1) 

approving or correcting minutes from the previous meeting;

(2) reviewing the company‘s financial statements; and (3) 

addressing other necessary business, such as authorizing 

agents to act on GSK Holdings‘ behalf, approving dividend 

payments, or occasionally restructuring the company‘s 

holdings. Id. at 709–10. Only the last task could be 

considered a form of direction, control, or coordination, and 

no doubt it has been in line with the wishes of Heslop (and

now his successor), whose team in the U.K. determines the

strategy for the company. 

I do not agree with my colleagues that the record 

supports their conclusion that the Board actually serves as the 

―brain‖ of GSK Holdings. The District Court—whose ―ruling 

 

parties proceeded on a record produced before his retirement,

and there is no evidence that GSK Holdings‘ corporate 

structure or activities changed after his departure. See

Majority Op. at 10 n.7. 
58

as to jurisdiction turn[ed] largely on the differences between a 

 ̳holding company‘ and an  ̳operating company‘‖—found that

―Holdings‘[] three Directors require no more than four 15- to 

30- minute Board meetings a year to manage Holdings‘[] 

affairs‖ and ―the Board . . . controls all Holdings‘[] actions . . 

. in Wilmington.‖ Johnson v. SmithKline Beecham Corp., 

853 F. Supp. 2d 487, 491–92 (E.D. Pa. 2012). My colleagues

uphold this finding, explaining that ―relatively short, quarterly 

board meetings may well be all that is required to direct and 

control the company‘s limited work.‖ Majority Op. at 35. 

The record does not support that conclusion. The District 

Court relied on Heslop‘s testimony that the ―Board makes 

those‖ decisions ―that actually control the activities of GSK 

Holdings‖ as well as the testimony of all three directors that 

Holdings cannot take ―new, unauthorized‖ actions without 

Board approval. App. at 707–08, 786, 823. As Heslop 

rightly explains, this is ―very much traditional corporate 

governance,‖ id. at 708, and could, it seems to me, be said of 

every corporation. A board of directors usually has the 

authority to make decisions that govern the corporation, but

that authority is not the same as actual control; if it were, the 

nerve center test would always point to the location of the 

board of directors‘ meetings, contrary to what Hertz requires. 

Moreover, these general statements of authority do not

square with the scope of the activities of GSK Holdings. It

―holds financial assets and liabilities‖ that include GSK LLC 

(a multi-billion dollar company and the GlaxoSmithKline 

family group‘s primary pharmaceutical business in the United 

States). Id. at 593, 672. It has held ―more than $10 billion of 

intra-[GSK] group debt,‖ serves as the ―lead American 

company‖ for U.S. tax purposes, and ―has litigated over its 

rights and obligations.‖ Id. at 593, 688–89. There is no 

evidence that any actual analysis presaging GSK Holdings‘ 

major actions on these issues—such as the conversion of 

SmithKline Beecham to GSK LLC or Holdings‘ tax, 
59

investing, and litigation strategies—occurred, or could occur,

during short board meetings held in Delaware. Id. at 709–10. 

Instead, the evidence shows that the actual oversight and 

control of these strategic decisions occur in the United 

Kingdom, and only later are made formal by Board vote. 

Thus I cannot agree with my colleagues that 15- to 30-

minute meetings in Delaware—where two of the directors in 

effect drive by or attend by phone while the other director

services myriad other holding companies in Delaware and 

tends to GSK Holdings for, at most, a few hours each year—

establish that Holdings‘ nerve center is in the state where

those meetings are held. This is especially so when Heslop 

himself tells us that strategic decisions governing Holdings

are made in the United Kingdom. 

I worry that my colleagues‘ approach will encourage 

parties to shift the location or formal authority of their 

corporate boards in order to create citizenship where those 

board meetings are held. My colleagues rightly state that 

courts have a responsibility to look past efforts at 

jurisdictional manipulation, but I think we likewise have a 

responsibility to avoid incentivizing manipulation that would 

require that inquiry. A holding company should be treated 

like any other company under the Hertz test, looking for the 

―center of overall direction, control, and coordination‖ of the 

corporation, and ―not simply an office where the corporation 

holds its board meetings.‖ Hertz, 130 S. Ct. at 1192, 1194. 

In light of this clear language, I believe the location of 

board of directors‘ meetings should only be deemed the nerve 

center of a corporation when evidence is absent that its actual 

guidance, supervision, and management—by its officers—

occurs elsewhere. That absence is not the case here. Officers 

of GSK Holdings in the United Kingdom make the calls later 
60

formalized by its board of directors in Delaware. Under 

Hertz, its brain is thus located in the U.K. 

* * * * *

My colleagues have done a masterful job in addressing 

the parties‘ arguments that GSK Holdings‘ principal place of 

business is either in Pennsylvania or Delaware. But the 

United Kingdom is also in play, and here critically so. My 

colleagues‘ rationalization of sparse facts is, in effect, that 

holding companies are different than operating companies for 

the purpose of the nerve center test. For them, this holds true 

until the Supreme Court tells us otherwise; for me the nerve 

center test applies uniformly to all companies until the 

Supreme Court tells us otherwise. For these reasons, I 

respectfully concur in the majority‘s judgment and in its

opinion except for Part III.A.2.