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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 14

- 1229

_____________

A.S., a Minor, by Sallee Miller, Guardian; SALLEE MILLER, Individually,

Appellants

v.

SMITHKLINE BEECHAM CORP, d /b/a GlaxoSmithKline

_____________________

APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civ. Action No. 1

- 13

- cv

- 02382) District Judge: Honorable Christopher C. Conner

________________________

Argued: Septem

ber 10, 2014

_________________________

Before: SMITH, SHWARTZ, and ROTH, Circuit Judges

(Filed : October 9 , 2014 )2 Howard J. Bashman , Esq. [ARGUED]
Suite G

- 22 2300 Computer Avenue Willow Grove, PA 19090 Counsel for Appellants

Lisa S. Blatt , Esq. [ARGUED]
Sarah M. Harris , Esq.
R. Stanton Jones , Esq.
Arnold & Porter LLP 555 Twelfth Street, N.W. Washington, DC 20004

Andrew T. Bayman , Esq.
Robert K. Woo , Jr., Esq. King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309

Jeffrey S. Bucholtz , Esq. King & Spalding LLP 1700 Pennsylvania Avenue , N.W.
Suite 200 Washington, DC 20006

Joseph E. O’Neil , Esq. Lavin, O’Neil, Ricci, Cedrone & DiSipio 190 North Independence Mall West
Suite 500 Philadelphia, PA 19106 Counsel for Appellee3 ________________________

OPINION

________________________

SHWARTZ, C ircuit Judge

.

A.S. and Sallee Miller (“Plaintiffs”) filed suit in Pennsylvania state court against GlaxoSmithKline LLC (“GSK”) claiming that its drug, Paxil, caused birth defects.
GSK removed the case to the United States District Court for
the Eastern District of Pennsylvania. The District Court 1 remanded the case, finding that GSK was a citizen of Pennsylvania and therefore ineligible to remove the case. After remand, our Court decided Johnson v. SmithKline Beecham Corp. , 724 F.3d 337 (3d Cir. 2013), in which we held that GSK was a citizen of Delaware. Within thirty days of our decision, GSK re

- removed the case. This time, the
District Court denied the motion to remand and certified its order for interlocutory review pursuant to 28 U.S.C. § 1292(b) to allow this Court to determine the propriety of re

removal. For the reasons set forth herein, we hold that the second removal was untimely, and we will reverse the order denying remand and direct that the District Court remand this

case to state court.
I

On September 30, 2011, A.S., who suffers from a congenital birth defect, and his mother, Sallee Miller, who

1 Several district court judges entered orders in this case. We will refer to the judges collectively as the “District Court.”4 ingested Paxil while pregnant, sued GSK in the Philadelphia County Court of Common Pleas. App. 82

- 84. The complaint alleged that all parties were citizens of Pennsylvania. App. 53, 84

- 85. GSK removed the case within thirty days of receipt of the complaint based upon diversity. On Plaintiffs’ motion, the case was consolidated with a number of other Paxil cases before a district court judge wh o had previously held that GSK was a citizen of Pennsylvania. Consistent with that holding, the District Court remanded this case along with the other consolidated cases to state court, holding that GSK was a citizen of Pennsylvania and could not remove a case from Pennsylvania state court to federal court. Patton ex rel.
Daniels

- Patton v. SmithKline Beecham Corp. , CIV.A. 11

- 5965, 2011 WL 6210724, at *5 (E.D. Pa. Dec. 14, 2011). The same judge also issued an opinion identical to Patton in
Maldonado ex re l. Maldonado v. SmithKline Beecham Corp.

, 841 F. Supp. 2d 890 (E.D. Pa. 2011), which remanded
twenty

- one other Paxil cases to state court. This case returned to state court on January 4, 2012. A.S. v. SmithKline Beecham Corp. , 2:11

- cv

- 6641 (E.D. Pa. Jan. 4, 2012).

On June 7, 2013, this Court issued Johnson , which
held that GSK was a citizen of Delaware. Johnson , 724 F.3d at 360. In reaching that holding, this Court explicitly rejected the reasoning in Patton

, Maldonado , and the District Court’s

simila r decision in Brewer v. SmithKline Beacham Corp.

, 774 F. Supp. 2d 720, 722 (E.D. Pa. 2011).

Less than thirty days after the Johnson decision, GSK filed a second notice of removal in this case and in eight other cases with the same procedural posture. A pp. 29

- 48. The various plaintiffs filed motions to remand, arguing that the5 removal was untimely. App. 319. These motions yielded inconsistent opinions. The first case holding that removal

was proper was Guddeck v. SmithKline Beecham Corp. , 957 F. Supp . 2d 622 (E.D. Pa. 2013). In Guddeck , the District Court noted that there was “no dispute that the parties are of diverse citizenship” after Johnson , that the amount

- in

controversy requirement was satisfied, and that GSK was not
an in

- state defendant. Id

. at 623. Guddeck also held that
Johnson established that the case was “erroneously remanded” after the first removal, Johnson “provided a new and different ground for a second notice of removal,” and GSK’s second “removal notice [was] simply effectuating what was a timely and proper first removal.” Id. at 625

- 26. The District Court in this case adopted Guddeck ’s reasoning and denied Plaintiffs’ motion to remand. App. 2

- 3.

After the rulings in Guddeck and this case, more judges in the Eastern District weighed in. One denied remand in two of the nine cases presenting the same issue, relying on the reasoning in Guddeck

. See M.N. v. SmithKline Beecham Corp. , No. 2:13

- cv

- 3695

- RB, Dkt. 17 (E.D. Pa. Aug. 7, 2013); I.C. v. SmithKline Beecham Corp. , No. 2:13

- cv

- 3681

- RB, Dkt. 22 (E.D. Pa. Aug. 9, 2013). Two judges disagreed and granted the motions to remand. See Cammarota ex rel. Hallock v. SmithKline Beecham Corp. , CIV.A. 13

- 3677, 2013 WL 4787305 (E.D. Pa. Sept. 9, 2013), reconsideration
denied , CIV.A. 13

- 3 677, 2013 WL 6632523 (E.D. Pa. Dec. 16, 2013); Powell ex rel. Powell v. SmithKline Beecham Corp. , CIV.A. 13

- 3693, 2013 WL 5377852 (E.D. Pa. Sept. 26, 2013).

After the District Court denied remand, this case was
transferred to the Middle District of Penns ylvania, where6 Plaintiffs filed a motion to certify for interlocutory appeal the following question: whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case? App. 4. The
Di strict Court certified the question for appeal, which this Court accepted pursuant to 28 U.S.C. § 1292(b).

II

This Court has jurisdiction to address not only the certified question but “any issue fairly included within the certified order,” Johnson , 72 4 F.3d at 345 (internal citations and quotation marks omitted), and “may consider all grounds that might require reversal of the order from which the parties appeal.” Doe v. Am. Red Cross , 14 F.3d 196, 199 (3d Cir. 1993). Thus, this interlocutory appeal requires this Court to determine whether removal was proper and whether the order denying remand was correct. As this appeal raises only legal issues, our review is de novo. Ario v. Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Account

, 618 F.3d 277, 287 (3d Cir. 2010).

III

We will first review the removal provisions at issue. Under 28 U.S.C. § 1441(a), defendants may generally remove civil actions from state court to federal district court so long
as the district court would have ha d subject

- matter jurisdiction had the case been originally filed before it. 2

2 Sect ion 1441(a) provides:7 When a case is removable under § 1441(a), and a plaintiff seeks remand, the plaintiff must identify a provision that prohibits removal. Breuer v. Jim’s Concrete of Brevard, Inc.

, 538 U.S. 691, 695

- 96 (2003). “[R]emoval statutes ‘are to be strictly construed against removal and all doubts should be
resolved in favor of remand.’” Batoff v. State Farm Ins. Co.

, 977 F.2d 848, 851 (3d Cir. 1992) (quoting Steel Valley Auth.
v. Union Switch & Signal Div. , 809 F.2d 1006, 1010 (3d Cir. 1987)).

Plaintiffs contend that GSK’s most recent removal did not comply with the time limits for removal set forth in 28 U.S.C. § 1446(b). 3 Section 1446(b) contains two paragraphs, the first of which p rovides:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a).

3 Because this case was commenced in 2011, all citations to § 1446 are to the version in effect during 2011. Sect ion 1446(b) was amended by the Federal Courts Jurisdiction and
Venue Clarification Act of 2011. The amended version applies to cases commenced after January 6, 2012.8 otherwise, of a copy of the initial pleading setting forth the claim for relief upon which
such action o r proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is
shorter.

28 U.S.C. § 1446(b). The se cond paragraph is an exception to the first paragraph. Id. It provides:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a c opy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of [diversity jurisdiction] more than 1 year
after com mencement of the action.

Id.

Plaintiffs also claim that the order denying remand violated 28 U.S.C. § 1447(d). That section provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or other wise.” 28 U.S.C. § 1447(d). Though the statutory text is ostensibly broad in scope, the Supreme Court has not read it literally. It has held that § 1447(d) only bars review of orders that remand cases pursuant to § 1447(c), which addresses remand9 based upon a lack of subject matter jurisdiction or a defect in the removal process. Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 712 (1996) (“[O]nly remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).” (quotation marks om itted)); see also Feidt v. Owens Corning Fiberglas Corp. , 153 F.3d 124, 126 (3d Cir. 1998) (“Section 1447(c) provides for remand on the basis of either a procedural defect or lack of jurisdiction . . . .”). If remand was based on either of those grounds, then review of the order is barred under § 1447(d). Agostini v. Piper Aircraft Corp.

, 729 F.3d 350, 356 (3d Cir. 2013).

For the reasons set forth herein, GSK’s re

- removal is prohibited by § 1446(b) and remand is required.

A

GSK argues that § 1446 (b)’s first paragraph does not bar its second removal because it does “not impose any time
limits on successive removals.” GSK Br. 17. While the first paragraph does not explicitly mention successive removals, as GSK notes, it also does not explicitly me ntion first removals. Instead, it uses the general term “[t]he notice of removal,” meaning the notice of removal by which the case came before the district court, and it is clear that this notice of removal must be filed within thirty days of receipt of t he initial pleading. 28 U.S.C. § 1446(b). Thus, although paragraph one does not expressly forbid successive removals, 4 it does

4 See Brown v. Jevic , 575 F.3d 322, 328 (3d Cir. 2009) (“The
removal statute does not c ategorically prohibit the filing of a second removal petition following remand.” (quotation marks and citations omitted)).10 expressly forbid untimely removals. Here, the relevant notice of removal was untimely: it was filed over a year and a half
aft er GSK was served with the initial pleading, namely the state court complaint. App. 31, 46

- 47. Because GSK’s second removal occurred more than thirty days after its receipt of the initial pleading, it did not comply with the first paragraph and GSK canno t remove on that basis.

B

The second paragraph does not relieve GSK of the first paragraph’s bar. It is an exception to the thirty

- day time limit in the first paragraph. This paragraph sets a separate thirty

day time limit that applies when: (1) “th e case stated by the initial pleading is not removable” and (2) the defendant receives “an amended pleading, motion, order or other paper” (3) from which “it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446 (b). In diversity cases, the second paragraph has a fourth requirement: removal may not occur “more than 1 year after
the commencement of the action.” Id. We will address the relevant requirements in turn.

1

Even assuming the case stated by the initi al pleading was not removable, GSK also cannot rely on the second paragraph because there was no “amended pleading, motion, order or other paper” to trigger its thirty

- day time limit. In general, the terms “amended pleading, motion, order or other paper” only “address[] developments within a case” and, therefore, court decisions in different cases do not count as an
“order.” Dahl v. R. J. Reynolds Tobacco Co. , 478 F.3d 965,11 969 (8th Cir. 2007); see also Green v. R.J. Reynolds Tobacco
Co. , 274 F.3d 263, 26 6

- 67 (5th Cir. 2001) (collecting cases). This is because: (1) “[i]f Congress had intended new developments in the law to trigger the recommencement of the thirty day time limit, it could have easily added language making it clear that § 1446(b) was not on ly addressing developments within a case” and (2) the fact that the documents are “listed in a logical sequence in the development of an individual case” makes it “an unsupported stretch to interpret ‘order’ to include a decision in a separate
case with di fferent parties.” Dahl , 478 F.3d at 969.

Our Court has recognized a narrow exception to the general rule that orders issued in other cases do not qualify as a § 1446(b) “order.” In Doe v. American Red Cross , the Red Cross removed a case on the ground that its Congressional charter conferred federal question jurisdiction. 14 F.3d at
197

- 99. The district court disagreed and remanded the case.
Id. at 199. Next, the Supreme Court decided S.G. v.
American National Red Cross , 505 U.S. 247 (1992), which
h eld that the Red Cross’s charter conferred federal question jurisdiction and gave the “ specific and unequivocal direction that the Red Cross [was] ‘thereby authorized to removal from
state to federal court of any state

- law action it is defending.’”

Doe , 1 4 F.3d at 201 (quoting S.G. , 505 U.S. at 248)).

The Red Cross re

- removed the case within thirty days
of S.G. and plaintiffs moved to remand, arguing, among other things, that S.G. was not an “order” under § 1446(b)’s second paragraph. The Doe Court di sagreed, holding that S.G. was an “order,” but it included an important qualification. To qualify as an “order” under § 1446(b), a court decision in another case “must be sufficiently related to a pending case,”12 meaning that: (1) “the order in the case ca me from a court superior in the same judicial hierarchy”; (2) “was directed at a particular defendant”; and (3) “expressly authorized that same defendant to remove an action against it in another case involving similar facts and legal issues.” Id. at 202

- 03. It was this last requirement that made S.G. “unique.” Id. According to Doe

, S.G. was not “simply . . . an order emanating from an unrelated action.” Id. at 202. Rather, it was “an unequivocal order directed to a party to the pending litigation, ex plicitly authorizing it to remove any cases it is defending.” Id.

Johnson is no S.G. Johnson rejected the reasoning that led to the remand of this case, as it held that GSK is a Delaware citizen, but it did not include the explicit
authorization to r emove other pending cases. Put simply,

“ Johnson . . . merely affirmed” an “[order denying] remand in
the case before it.” Powell , 2013 WL 5377852, at *4. Accordingly, Johnson does not qualify as an “order” under

Doe

.

In an attempt to extend Doe , GSK c ites to a pair of

non

- binding cases for the proposition that this Court can ignore Doe ’s third requirement. See Green , 274 F.3d 263; Young v. Chubb Grp. of Ins. Comp. , 295 F. Supp. 2d 806 (N.D. Ohio 2003). These courts held that a decision in
another cas e qualified as an “order” under § 1446(b) even though the decision did “not explicitly discuss removal,” much less specifically authorize removal in pending cases.
Green , 274 F.3d at 268; see Young , 295 F. Supp. 2d at 808. In effect, GSK wants this Court to rely on these cases and hold that any subsequent decision involving the same13 defendant impacting removability is an “order” under § 1446(b).

Our binding precedent in Doe made clear, however, that its ruling was narrow and meant to apply in “unique

ci rcumstances,” namely compliance with a higher court’s holding that explicitly authorized a particular party to remove all of its pending cases to federal court. Doe , 14 F.3d at 202

- 03. To treat all subsequent decisions involving the same defendant as par t of a specific pending case would move the

Doe rule from the “unique” to the typical.

Moreover, if a party in a pending case could re

- remove each time it received a favorable ruling in another case, re

removal could be a means to disrupt the proceedin gs in the pending case. Wilson v. Intercollegiate (Big Ten) Conference
Athletic Ass’n , 668 F.2d 962, 965 (7th Cir. 1982) (noting that one of the purposes of removal time limits is “prevent[ing] the delay and waste of resources involved in starting a case over in a second court after significant proceedings . . . may have taken place in the first court”). For these reasons, Doe is appropriately limited to the “unique circumstances” that arose in that case and we decline to expand the definition of “order” to include orders entered in any case involving the same
defendant. 5

Because Johnson did not explicitly direct removal of all cases involving GSK, but only affirmed the order denying

5 This conclusion is consistent with our precedent that removal statutes are to be strictly construed against removal. See, e.g.

, Ab els v. State Farm Fire & Cas. Co. , 770 F.2d 26, 29 (3d Cir. 1985).14 remand of the case, it is not an “order” that triggers a new thirty

- da y time period to remove Plaintiffs’ case. For this additional reason, the second paragraph of § 1446(b) does not provide a basis for removal.

2

GSK is also barred from removal based upon the second paragraph’s one

- year limitation, which prohibits

remo val of diversity cases more than one year after the case commences. Here, the case commenced on September 30, 2011, and the notice of removal at issue was filed on June 26, 2013, more than a year and a half later. App. 18

- 19.

This one

- year time limit i s procedural, not jurisdictional. Ariel Land Owners, Inc. v. Dring , 351 F.3d 611, 616 (3d Cir. 2003). For that reason, the time limit may be equitably tolled in certain circumstances. See Tedford v.

Warner

– Lambert Co. , 327 F.3d 423, 428

- 29 (5th Cir. 200 3) (recognizing equitable tolling exception to the one

- year removal limitation); Podobnik v. U.S. Postal Serv. , 409 F.3d 584, 591 (3d Cir. 2005) (holding that a non

- jurisdictional time limitation “may be modified by equitable concerns, such as tolling”).

Equitable tolling is not warranted in this case. Cases involving equitable tolling of the one

- year time limit often focus on intentional misconduct by the plaintiff. See e.g.

, Tedford , 327 F.3d at 428

- 29 (“Where a plaintiff has attempted to manipulate t he statutory rules for determining federal removal jurisdiction, thereby preventing the defendant from exercising its rights, equity may require that the one

year limit in § 1446(b) be extended.”); Namey v. Malcolm

,15 534 F. Supp. 2d 494, 499 (M.D. Pa. 2008) (holding that equitable exception to one

- year limitation did not apply
because “Defendants have not met their burden of demonstrating sufficient culpability on the part of Plaintiffs”). At the time this case was commenced, equitable tolling also may have been proper for reasons other than party
misconduct. 6 See Vogel v. U.S. Office Prods

. Co. , 56 F. Supp. 2d 859, 865 (W.D. Mich. 1999) (equitably tolling first paragraph’s thirty

- day time limit to allow re

- removal where initial removal notice “simply disap peared,” even though plaintiffs had not “engaged in behavior which might estop them from pursuit of remand”), rev’d on other grounds , 258 F.3d 509 (6th Cir. 2001).

While the contours of equitable tolling vary from context to context, this Court and the S upreme Court have held that equitable tolling may be appropriate if a litigant can demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo , 544 U.S. 408, 418 (20 05) (habeas case); Oshiver v. Levin, Fishbein, Sedran & Berman

, 38 F.3d 1380, 1387, 1390 (3d Cir. 1994) (holding time limit to file an EEOC charge may be tolled “where the plaintiff in some extraordinary way has been prevented from asserting his or her rig hts” but noting that a “plaintiff who fails to exercise this reasonable diligence may lose the benefit of [equitable tolling]”).

6 The current version of § 1446 specifically states that a diversity case cannot be removed “more than 1 year after the commencement of the action, unless the district court finds
that th e plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C.§ 1446 (c)(1).16 GSK argues that “extraordinary circumstances thwarted [its] initial removal.” GSK Br. 36. According to GSK, the “extraord inary circumstances” were: (1) that the remand proceedings were consolidated before a judge who had previously held that GSK was a citizen of Pennsylvania and therefore was likely to find that remand was proper; and (2) that the District Court erroneously remanded the case.

Neither is an “extraordinary circumstance.” Section 137 of Title 28 provides that “[t]he business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court.” This statu te “vests the district court with broad discretion in assigning court business to individual judges.” United States v. Diaz

, 189 F.3d 1239, 1243 (10th Cir. 1999). Simply put, under that statute, litigants “do[ ] not have a right to have [their] case

heard by a particular judge,” have “no right to any particular procedure for the selection of the judge,” and “do[ ] not enjoy the right to have the judge selected by a random draw.”
United States v. Pearson , 203 F.3d 1243, 1256 (10th Cir. 2000) (citations and alteration omitted) (collecting cases). Moreover, under Federal Rule of Civil Procedure 42(a), district courts have “broad power” to consolidate cases that share “common question[s] of law or fact.” Ellerman Lines, Ltd. v. Atl. & Gulf Stevedores, Inc.

, 339 F.2d 673, 675 (3d Cir. 1964); see also United States v. Schiff , 602 F.3d 152, 176 (3d Cir. 2010) (holding that a district court has “broad discretion in its rulings concerning case management”).

Applying these principles here, it is clear that GSK had no right to have its motion decided by a particular judge nor was it prejudiced by the assignment of this case to a judge17 who ruled against it. The decision to consolidate the nearly

identical cases before a judge familiar with the relevant issues

was a proper exercise of the District Court’s broad discretion. There was nothing “extraordinary” about the decision to
consolidate the cases.

Furthermore, although the original remand decision was wrong, an erroneous remand is not an “extraordinary

ci rcumstance.” In fact, § 1447(d)’s prohibition on review of remand orders “contemplates that district courts may err in remanding cases.” Feidt , 153 F.3d at 128. A circumstance expressly “contemplate[d]” by the statutory scheme is not extraordinary, but is expected. Id. Moreover, as one district court has persuasively observed, subsequent legal developments “are precisely the sort of events that § 1446(b)’s one

- year limitations period is designed to preclude” from disrupting a pending case. Williams v . Nat’l Heritage Realty Inc. , 489 F. Supp. 2d 595, 597 (N.D. Miss. 2007). Otherwise, “removal issues would be subject to

constant re

- litigation” as the law develops. Id.

For these reasons, GSK is not entitled to equitable tolling.

C

GSK’s final a rgument is that its second notice of
removal should “relate back” to the first notice of removal. To assess this argument, we must first identify the source of a court’s authority to relate back in this context. GSK relies on
Federal Rule of Civil Proced ure 15(c). Rule 15, however, only applies to an “amendment to a pleading.” Fed. R. Civ. P. 15(c). Rule 7(a) lists the types of “pleadings” and a notice of18 removal is not among them. See Fed. R. Civ. P. 7(a). Therefore, any relation back in this case mu st be justified

— if
at all

— under a court’s equitable powers. See Scarborough v. Principi , 541 U.S. 401, 417

- 18 (2004) (noting that “relation back” is an equitable doctrine that can apply outside of Rule 15 context).

GSK argues that this case “warrants the exercise of those equitable powers.” GSK Br. 30. The reasons GSK gives in favor of equitable relation back simply rehash its arguments for equitable tolling and for the same reasons, they fail. Neither the fact that a particular judge was assigned t o the case nor the error in remanding the case provide a basis for equitable relief.

An additional reason dictates that the second notice of
removal does not relate back to the first notice of removal. By the time GSK filed its second notice of removal , a final order remanding the action had been filed and the case was sent to the state court. As a result, there was nothing pending
in the federal court to which the second notice could relate. This distinguishes the present case with those that GSK cit es as supporting relation back, such as USX Corp. v. Adriatic
Insurance Co. , 345 F.3d 190 (3d Cir. 2003). In USX , the defendant timely removed to federal court and the plaintiff filed a motion to remand, which the district court denied. Id.
at 197. Whil e the case was pending in federal court, the Supreme Court issued a decision that undercut the rationale for jurisdiction in the defendant’s notice of removal and the plaintiff filed another motion to remand. Id. at 199

- 200. The
defendant offered a new e xplanation for jurisdiction, and the district court denied remand based on the new explanation.
Id. On appeal, the plaintiff argued that the defendant’s new19 argument was waived because it was not included in the
notice of removal. Id. at 200. This Cour t held that the argument was not waived because the district court did not abuse its discretion by deeming that the new argument
“amended” the notice of removal. Id. at 204

- 05. This was proper, the USX Court reasoned, because the new argument
“did not ad d new jurisdictional facts and did not rely on a basis of jurisdiction different from that originally alleged.”

Id. at 205. Instead, it only “amend[ed] the allegation [in the notice of removal] in light of an intervening clarification in
the law.” Id. For support, this Court cited cases holding that amendments to removal notices may be permitted so long as the amendments “merely clarify (or correct technical deficiencies in) the allegations already contained in the original notice.” Id. at 205 n.12. T he Court distinguished USX’s situation from cases where an amendment “creat[es] an entirely new basis for jurisdiction.” Id. at 205 n.11.

There is a critical difference between this case and
USX . In this case, GSK’s first notice of removal was not pend ing but was disposed of by a final order remanding the

case to state court. See In re FMC Corp. Packaging Sys. Div.

, 208 F.3d 445, 449 (3d Cir. 2000) (noting that remand orders are final orders). That order divested the district court of jurisdiction ove r the case. Hunt v. Acromed Corp. , 961 F.2d 1079, 1081 (3d Cir. 1992). There was therefore nothing for
the second notice of removal to “relate back” to. In USX , by contrast, the notice of removal was still pending and therefore
there was a notice of rem oval to which to relate back.

Recognizing this obvious distinction, GSK argues that the initial notice does not need to be pending, but rather that only the underlying case must be pending. For this20 proposition, GSK cites to cases where courts allowed a n amended complaint to relate back to a timely, yet dismissed complaint. These cases allowed relation back only when the complaint was dismissed without prejudice

— i.e., by a non

final order. 7 See Brennan v. Kulick , 407 F.3d 603, 607 (3d Cir. 2005) (permi tting amendment to dismissed complaint when dismissal was without prejudice); see also Luevano v.
Wal

- Mart Stores, Inc. , 722 F.3d 1014, 1025 (7th Cir. 2013) (permitting amended complaint to relate back to dismissed complaint when dismissal was without prej udice). As a result, each dismissal was “conditional” and the district court “retained jurisdiction over the case” even after dismissal.

Brennan , 407 F.3d at 607. Here, the District Court’s first remand order was final, not “conditional,” and ended the

federal case.

Moreover, once an order remanding a case is mailed to the state court, the district court loses jurisdiction and thus lacks the authority to allow the amendment of the notice of
removal. In Hunt , a district court remanded a case to state court, thereby losing jurisdiction over the case. 961 F.2d at

7 The one case GSK cites that involved a dismissal with prejudice does not warrant a different view. In Donnelly v. Yellow Freight Sys., Inc. , 874 F.2d 402 (7th Cir. 1989), aff’d on other grounds, 494 U.S. 820 (1990), the appellate court allowed relation back to a complaint that was dismissed in state court with prejudice. Id. at 410 n.11. The appellate court treated the order as being wi thout prejudice and allowed relation back, concluding that the state order “utterly makes no sense” because (1) it should have been a dismissal without prejudice and (2) another state court order implied that the plaintiff could amend her complaint. Id. a t 410 & n.11.21 1081. After remand, the defendant filed a motion to amend its notice of removal, but this Court held that the motion to amend was “too late” since the district court no longer had jurisdictio n over the case. Id. at 1082. The Hunt Court noted that this result furthered “the policy underlying [§ 1447(d)],” which is “to prevent delay in the trial of remanded cases by avoiding protracted litigation of jurisdictional issues of exactly the type in volved here.” Id. The result should be no different here, where GSK essentially seeks to amend its first
notice of removal with its second notice of removal. Allowing a second notice of removal to do what a motion
could not would be an end run around bo th the holding in

Hunt and the policy underlying § 1447(d).

For all of these reasons, GSK’s second notice of
removal cannot relate back to the first notice of removal. 8

8 Plaintiffs also contend that § 1447(d) is an alternative ground for reversing the District Court’s denial of remand. Specifically, Plaintiffs argue that a denial of the motion to
remand after the District Court had remanded the case wa s effectively a “review” of a remand order not permitted under § 1447(d). Doe , however, provides that re

- removals on “different” grounds are not barred by § 1447(d). Doe , 14
F.3d at 200. Under Doe , “different” grounds include a
citation to “a new and de finitive source” of authority. Id.
Johnson was such “a new and definitive source” of authority.
While there are distinctions between Doe ’s S.G. and this
case’s Johnson , those distinctions are only relevant to §1446(b)’s “order” inquiry, which is distinc t from § 1447(d). Put differently, Johnson ’s status as a non

- “order” does not make it any less of “a new and definitive source” of authority. Accordingly, the second notice of removal, with its citation to22 IV

Because GSK’s second removal was untimely under § 1446(b), we will reverse and remand with instructions that the District Court remand this case to the Philadelphia County
Court of Common Pleas.

Johnson , set forth a “different” ground as defin ed in Doe

. Therefore, the District Court’s order denying remand after it had entered an order granting remand did not run afoul of §1447(d).