IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TAMMY WHITE : CIVIL ACTION

:

v. :

:

SMITHKLINE BEECHAM :

CORPORATION :

d/b/a GLAXOSMITHKLINE : NO. 10-2141

MEMORANDUM

McLaughlin, J. August 5, 2010

The plaintiff, a citizen of Florida, filed this

products liability action in the Court of Common Pleas of

Philadelphia county on April 12, 2010 against “SmithKline Beecham

Corporation d/b/a GlaxoSmithKline.” On May 10, 2010,

GlaxoSmithKline LLC (“GSK LLC”) removed the case to this Court,

alleging diversity jurisdiction. In the Notice of Removal, the

defendant avers that:

7. On October 27, 2009, SmithKline Beecham

Corporation (“SKB”), a Pennsylvania

corporation, converted into GlaxoSmithKline

LLC, a limited liability company organized

under Delaware law. 

8. In order to clarify its status in

Pennsylvania (i.e., no longer having the

status as a Pennsylvania corporation), SKB

filed modified articles of dissolution with

the Pennsylvania Department of State pursuant

to 15 P.A. C.S.A. § 1980.

 

9. The articles of dissolution terminated

SKB’s status as a domestic business

corporation under Pennsylvania law, and the

entity continued to exist as GSK LLC under
Delaware law. As the successor entity, GSK

LLC succeeded to the liability of SKB. 

10. Plaintiff is a citizen and resident of

the State of Florida.

 

11. GSK LLC is a Delaware limited liability

company. 

12. For purposes of diversity jurisdiction,

the citizenship of an LLC is that of its

members. 

13. The sole member of GSK LLC is

GlaxoSmithKline Holdings (Americas) Inc. 

GlaxoSmithKline Holdings (Americas) Inc. is a

Delaware Corporation with its principal place

of business in Wilmington, Delaware. 

14. Thus, GSK LLC is a citizen of Delaware,

and complete diversity of citizenship exists

between plaintiff and defendant GSK LLC.

Notice of Removal at 2-3 (citations and footnotes omitted).

On June 8, 2010, the plaintiff moved to remand the case

to the Court of Common Pleas on the ground that the defendant is

a citizen of Pennsylvania and could not remove under 28 U.S.C. §

1441(b), which prohibits removal by a citizen of the State in

which the action is brought. In her initial brief, the 1

Although the plaintiff also alleges that the Court does 1

not have subject matter jurisdiction, that is incorrect. Because

the complaint states that the plaintiff is a citizen of Florida,

there would be complete diversity whether the defendant is a

citizen of Pennsylvania or Delaware. The removal statute,

however, limits the circumstances in which a defendant may remove

a case from state court, despite the fact that a federal court

would have had original jurisdiction over the case if it had been

brought in federal court originally. See, e.g., Wright & Miller,

Federal Practice and Procedure, § 3721 (4th ed. 2009)

(distinguishing between subject matter jurisdiction and removal

under § 1441). 

2
plaintiff argues that GSK LLC’s principal place of business is

Pennsylvania under the “nerve center” test, notwithstanding the

defendant’s recent change to its corporate structure and that, in

any event, the defendant continued to be a citizen of

Pennsylvania for two years after dissolution under 15 Pa. C.S.

§ 1979.

In its opposition to the motion to remand, GSK LLC

argues that because it is a limited liability corporation, its

citizenship is determined by the citizenship of its members. GSK

LLC has one member: GlaxoSmithKline Holdings (Americas) Inc.

(“GSK Holdings”). The defendant then contends that GSK Holdings

is incorporated in Delaware and that its principal place of

business is also in Delaware. The defendant also argues that

§ 1979 is not applicable because SKB did not dissolve under

Pennsylvania law. It, instead, “domesticated itself under the

laws of another jurisdiction” as allowed by 15 Pa. C.S. § 1980.

In her reply memorandum, the plaintiff appears to

concede that the citizenship of an LLC is determined by the

citizenship of its members, but disputes that GSK Holdings’s

principal place of business is Delaware. She argues that under

the “nerve center” test, GSK Holdings’s principal place of

business is Pennsylvania. She also reasserts the applicability

of § 1979.

3
The defendant is correct that the citizenship of an LLC

is determined by the citizenship of its members. See Zambelli

Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d Cir.

2010). There is no dispute that GSK Holdings is the only member

of GSK LLC and that GSK Holdings is a Delaware corporation. The

question before the Court, therefore, is the location of GSK

Holding’s principal place of business. 

Both parties agree that the Court should apply the

“nerve center” test, based upon the United States Supreme Court’s

recent holding 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." 

Hertz Corp. v. Friend, 130 S.Ct. 1181, 1186 (U.S. 2010). The

Supreme Court approved of the lower federal courts' use of the

metaphorical phrase “nerve center" to describe the principal

place of business and stated that “the ‘nerve center' will

typically be found at a corporation's headquarters." Id. The

Supreme Court advised that the “nerve center” should be more than

“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.

In support of its assertion that GSK Holdings’

principal place of business is in Delaware, the defendant has

submitted the affidavit of Julian Heslop, the Chief Financial

4
Officer of GlaxoSmithKline PLC and the President and a director

of GSK Holdings. Mr. Heslop states that GSK Holdings serves a

narrow asset management function and holds financial assets and

liabilities, largely in relation to the GlaxoSmithKline group of

companies. Affidavit of Julian Heslop at ¶ 15, attached as Ex. A

to Def.’s Opp’n. He states that GSK Holdings maintains its

headquarters in Delaware and identifies a Delaware address in tax

filings and in documents filed with the Delaware Secretary of

State. Id. at ¶¶ 13, 17 and 18. According to the affidavit, GSK

Holdings’ activities are controlled and coordinated through

actions and decisions of its officers and directors and, although

many actions in furtherance of its business are conducted outside

of Delaware, particularly in London, England, the formal control

over and approval of all significant decisions regarding those

actions are made and ratified by its officers and directors in

Delaware. Id. at ¶¶ 15 and 19. Mr. Heslop also avers that GSK

Holdings’ Board of Directors holds its quarterly meetings in

Delaware, in which it reviews and approves the corporate accounts

and reviews, controls and ratifies the key business activities of

GSK Holdings; the minutes reflecting the actions of the board are

stored with the corporate secretary in Delaware; and the

administrative functions attendant to the meetings of the Board

of Directors are centralized in Delaware. Id. at ¶ 22.

5
The plaintiff, however, contends that GSK Holdings’

Delaware office is “simply an office where the corporation holds

its board meetings” and not an actual place of business. Hertz,

130 S. Ct. at 1192. The plaintiff argues that the GSK Holdings’

actual management and control are based in Pennsylvania. The 2

plaintiff’s sole evidence in support of such an assertion is

information culled from government websites concerning contracts

held between the defendant and the United States Department of

Health and Human Service. These websites list an “operational

address” for GSK Holdings in Pennsylvania. 

Such evidence does not establish that Pennsylvania is

the “nerve center” of GSK Holdings. First, the defendant avers

in its sur-reply that the information listed on the websites is

factually incorrect. GSK LLC, not GSK Holdings, should have been

identified as the contracting entity on these websites. Second,

even if the defendant does have an operational address in

Pennsylvania, the Supreme Court recognized in Hertz that a

corporation “may have several plants, many sales locations, and

At times, the plaintiff appears to be asking the Court 2

to disregard GSK LLC’s corporate status as a Delaware limited

liability corporation and, instead, view GSK LLC itself as a

Pennsylvania corporation. The plaintiff, however, gives the

Court no reason to do so. The plaintiff does not argue that the

defendant’s conversion from a Pennsylvania corporation into a

Delaware limited liability corporation was inconsistent with

either Pennsylvania or Delaware law. Nor does the plaintiff

allege that the defendant’s current corporate structure violates

any Delaware law controlling the structure of limited liability

corporations. 

6
employees located in several different places.” Id. at 1994. 

The difficulty of determining “which of these different business

locales is the ‘principal’ or most important ‘place’” was one of

the Supreme Court’s reasons for adopting the “nerve center” test. 

Id. Based upon the information listed on these websites alone,

the Court cannot conclude that Pennsylvania is GSK Holdings’

“nerve center.”

Mr. Heslop’s statements, on the other hand, provide

ample evidence that GSK Holdings’ “nerve center” is in Delaware. 

Its offices and headquarters are located in Delaware. All

significant decisions are made and ratified by its directors and

officers in Delaware. Its Board of Directors hold their

quarterly meetings in Delaware. From this evidence, the Court

concludes that Delaware is the place in which GSK Holdings’ high

level officers direct, control, and coordinate the corporation's

activities. Under Hertz, therefore, GSK Holdings’ principal

place of business is in Delaware. 

The plaintiff also argues that, regardless of GSK LLC’s

citizenship, Pennsylvania courts retain jurisdiction over the

defendant for two years after its dissolution as a Pennsylvania

Corporation, pursuant to 15 Pa. C.S. § 1979(a). Section

1979(a)(2) provides, in relevant part, that

[t]he dissolution of a business corporation,

either under this subchapter or under

Subchapter G (relating to involuntary

liquidation and dissolution) or by expiration

7
of its period of duration or otherwise, shall

not eliminate nor impair any remedy available

to or against the corporation or its

directors, officers or shareholders for any

right or claim existing, or liability

incurred, prior to the dissolution, if an

action or proceeding thereon is brought on

behalf of any . . . person before or within

two years after the date of the dissolution

or within the time otherwise limited by this

subpart or other provision of law, whichever

is less.

The plaintiff argues that, because the defendant is subject to

suit under this subsection, the defendant remains a Pennsylvania

corporation and the defendant improperly removed this case.

Section 1979, however, does not apply in these

circumstances. Although SBK did file Articles of Dissolution

with the Department of State of the Commonwealth of Pennsylvania,

those articles were filed “in accordance with 15 Pa. CSA []1980.” 

See Articles of Dissolution, attached as Ex. C to Def.’s Opp’n. 

Section 1980 involves the dissolution of a corporation by

domestication under the laws of another jurisdiction. It

provides, in relevant part, that 

[w]henever a domestic business corporation

has domesticated itself under the laws of

another jurisdiction . . ., the corporation

may surrender its charter under the laws of

this Commonwealth by filing in the Department

of State articles of dissolution under this

subchapter containing the statement specified

by section 1977(b)(1) through (4) (relating

to articles of dissolution).3

Section 1977(b)(1)-(4) requires the corporation to 3

include the following information in the articles of dissolution: 

8
15 Pa. C.S. § 1980. The official commentary for § 1980 states

that the section was “intended to provide a procedure under which

a domestic business corporation that has domesticated itself

under the laws of another jurisdiction can clarify its status in

Pennsylvania.” The commentary further explains that “[t]he

effect of filing under this section is not to dissolve the

corporation in the ordinary sense but simply to terminate its

status as a domestic business corporation. The existence of the

corporation is not affected because the same entity continues to

exist in the new jurisdiction of incorporation.”

Survival statutes like § 1979 exist as a method of

protecting creditors and other plaintiffs by ensuring they have a

means of recovery against a fully dissolved corporation. The

two-year survival period provided in that section is not

necessary, however, for a plaintiff to be able to bring suit

against a corporation that has voluntarily dissolved under

§ 1980. When a corporation “dissolves” by domestication under

§ 1980, the corporation still exists as a corporation under the

laws of another state. No remedy for any right or claim that

the name of the corporation, the address of its registered

office, the statute under which it was incorporated, the date of

incorporation, the names and addressed of its directors and

officers, and the manner in which the proposal to dissolve was

adopted by the corporation. Section 1980, therefore, does not

require a corporation to include the statements regarding the

discharge of its assets and liabilities listed in § 1977(b)(5)-

(8) that are ordinarily required after a voluntary dissolution.

9
existed or liability that was incurred prior to the conversion

would be eliminated or impaired by this process. A survival

statute like § 1979, therefore, is not necessary to preserve such

remedies, rights or claims.

The plaintiff relies on a line of cases from the United

District Court of the Southern District of Illinois that reach a

contrary conclusion. These cases, however, assume that SKB 4

fully dissolved at some point and then was reconstituted as GSK

LLC. Such an argument is inconsistent with the process by which

the defendant actually converted from a Pennsylvania corporation

into a Delaware limited liability corporation. That conversion

was a multi-stage process in which the defendant (1) established

itself as a Delaware corporation, (2) voluntarily dissolved its

status as a Pennsylvania corporation pursuant to § 1980, and (3)

converted from a Delaware corporation into a Delaware limited

liability company. At no point in the process did the defendant

Colon v. SmithKline Beecham Corp., No. 09-1073, 2010 WL 4

46523 (S.D.Ill. Jan. 5, 2010); Alexander v. SmithKlineBeecham

Corp., No. 09-1072, 2010 WL 750031 (S.D.Ill. Mar. 3, 2010); Aaron

v. SmithKlineBeecham Corp., No. 09-1071, 2010 WL 1752546

(S.D.Ill. Apr. 28, 2010).

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terminate its existence as a corporate entity. The two-year 5

survival period of § 1979 was never triggered. 

The Court, therefore, concludes that, because the

defendant is not a Pennsylvania citizen and because § 1979's twoThe defendant did not dissolve as a corporate entity 5

when it converted into a Delaware corporation under 8 Del. C.

§ 265, which controls the conversion of other entities, including

foreign corporations, into Delaware corporations. See § 265(a). 

Section 265(g) provides, in relevant part, that 

[u]nless otherwise agreed for all purposes of

the laws of the State of Delaware or as

required under applicable non-Delaware law,

the converting other entity shall not be

required to wind up its affairs or pay its

liabilities and distribute its assets, and

the conversion shall not be deemed to

constitute a dissolution of such other entity

and shall constitute a continuation of the

existence of the converting other entity in

the form of a corporation of this State.

Nor did the defendant dissolve when it converted from a

Delaware corporation into a Delaware limited liability

corporation under 6 Del. C. § 18-214. Section 18-214(d)

provides, in relevant part, that, upon filing a certificate of

conversion with the Delaware Secretary of State, “the existence

of the limited liability company shall be deemed to have

commenced on the date the other entity commenced its existence in

the jurisdiction in which the other entity was first created,

formed, incorporated or otherwise came into being.” Section 18-

214(e) further provides that “the conversion of any other entity

into a domestic limited liability company shall not be deemed to

affect any obligations or liabilities of the other entity

incurred prior to its conversion to a domestic limited liability

company or the personal liability of any person incurred prior to

such conversion.”

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year survival period is inapplicable, this case was properly

removed. The plaintiff’s motion to remand is denied.

An appropriate order shall issue separately.

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