2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2014

A.S. v. SmithKline Beecham Corp

Precedential or Non-Precedential: Precedential

Docket No. 14-1229

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PRECEDENTIAL

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: September 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 Appellee
3

________________________

OPINION

________________________

SHWARTZ, Circuit 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 Court1

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 reremoval. 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 who 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 rel. 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 

similar 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. App. 29-48. The 

various plaintiffs filed motions to remand, arguing that the 
5

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-incontroversy 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. 13-3677, 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 Pennsylvania, where 
6

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 

District 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, 724 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 had subject-matter 

jurisdiction had the case been originally filed before it.2 

 

2 Section 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 provides:

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. Section 

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 or 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 second 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 copy 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 commencement 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 otherwise.” 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 remand 
9

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 omitted)); 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 mention 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 the initial 

pleading. 28 U.S.C. § 1446(b). Thus, although paragraph 

one does not expressly forbid successive removals,4it does 

 

4 See Brown v. Jevic, 575 F.3d 322, 328 (3d Cir. 2009) (“The 

removal statute does not categorically 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 

after 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 cannot 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 thirtyday time limit that applies when: (1) “the 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 initial 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, 266-67 (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 only 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 different 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 

held 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, 14 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 disagreed, 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 came 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, explicitly 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 remove 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 cites 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 case 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 same 
13

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 

circumstances,” 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 part 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, reremoval could be a means to disrupt the proceedings 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., Abels 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-day 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 

removal 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 is 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. 2003) 

(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 the statutory rules for determining 

federal removal jurisdiction, thereby preventing the defendant 

from exercising its rights, equity may require that the oneyear 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 disappeared,” 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 Supreme 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 (2005) 

(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 rights” 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 the 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 “extraordinary 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 statute 

“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 judge 
17

who ruled against it. The decision to consolidate the nearlyidentical 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 

circumstance.” 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 argument 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 Procedure 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 of 
18

removal is not among them. See Fed. R. Civ. P. 7(a). 

Therefore, any relation back in this case must 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 to 

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 cites 

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. While 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 explanation for jurisdiction, and the 

district court denied remand based on the new explanation. 

Id. On appeal, the plaintiff argued that the defendant’s new 
19

argument was waived because it was not included in the 

notice of removal. Id. at 200. This Court 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 add 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. The 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 

pending 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 over 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 removal 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 this 
20

proposition, GSK cites to cases where courts allowed an 

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 nonfinal order.7

 See Brennan v. Kulick, 407 F.3d 603, 607 (3d 

Cir. 2005) (permitting 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 prejudice). 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 without 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. at 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 

jurisdiction 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 involved 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 both 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 was 

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 definitive 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 distinct 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 to 
22

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 defined 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).