Professional Documents
Culture Documents
Published
Published
Published
No. 12-2188
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2189
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2190
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2191
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2193
of
Pfizer,
Inc.;
No. 12-2194
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2195
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2197
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2199
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2205
of
Pfizer,
Inc.;
No. 12-2207
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2208
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2218
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2219
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2220
of
Pfizer,
Inc.;
No. 12-2221
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2223
of
Pfizer,
Inc.;
Defendants - Appellants.
No. 12-2224
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
of
Pfizer,
Inc.;
Defendants - Appellants.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
District Judge.
(3:12-cv-04105; 3:12-cv-04103; 3:12-cv-04108;
3:12-cv-04106;
3:12-cv-04123;
3:12-cv-04122;
3:12-cv-04109;
3:12-cv-04110;
3:12-cv-04111;
3:12-cv-04112;
3:12-cv-04113;
3:12-cv-04114;
3:12-cv-04115;
3:12-cv-04116;
3:12-cv-04117;
3:12-cv-04118;
3:12-cv-04120;
3:12-cv-04121)
Argued:
Decided:
ARGUED:
Mark Steven Cheffo, QUINN, EMANUEL, URQUHART &
SULLIVAN, LLP, New York, New York, for Appellants.
Anthony J.
Majestro, POWELL & MAJESTRO, PLLC, Charleston, West Virginia,
for Appellees. ON BRIEF: Michael J. Farrell, FARRELL, WHITE &
LEGG PLLC, Huntington, West Virginia, for Appellants.
LLC
(collectively,
the
Pharmaceutical
Companies),
of
proscribed
Wayne
County,
West
our
ability
to
Virginia.
review
Congress
district
has
sharply
courts
remand
present
here,
we
dismiss
this
appeal
for
lack
of
jurisdiction.
I.
This action was commenced by nineteen plaintiff families
upon filing a single complaint.
liability
Companies.
and
negligence
The
families
claims
allege
against
that
the
the
Pharmaceutical
prescription
anti-
Zoloft.
Pfizer
is
corporation
organized
under
Besides
the
Dropp
family,
citizens
of
New
York,
all
other
However, the
Companies
interpret
and
completely
because
eighteen
diverse
from
this
rule
to
mean
The
that
of
the
nineteen
all
of
the
families
were
defendants,
the
the
United
States
District
Court
for
the
Southern
remains
13,
pending
in
state
court.
On
August
2012,
the
because
each
the
actions,
plaintiff
is
when
diverse
analyzed
from
each
individually,
show
defendant.
The
the
families
were
treated
10
separately
only
for
administrative
diversity
purposes,
jurisdiction
and
this
analysis.
has
The
no
bearing
district
on
court
the
first
filed
by
unrelated
plaintiffs
must
be
then
examined
case
prior
to
the
2008
docketed
as
The district
amendment
to
Id.
Id. at 395.
It went on to conclude
for
diversity
analysis.
11
Id.
Similarly,
here
the
ex
rel.
Cook
v.
Pfizer,
Inc.,
3:12-cv-04103,
2012
WL
for
concluding
purposes
that
of
the
action
diversity
was
really
jurisdiction,
the
one
civil
district
Dropp
family,
the
only
12
non-diverse
plaintiff,
was
fraudulently joined.
Thus, if
the Dropp family was fraudulently joined, the district court had
jurisdiction.
To
establish
fraudulent
joinder,
the
district
namely:
(1)
the
claims
must
arise
out
of
the
same
arise from the same series of transactions or occurrences -namely the production, distribution, and promotion of Zoloft.
Id.
at
*5.
Second,
the
common
question
of
law
or
fact
[p]laintiffs
knowledge
of
include
Zolofts
the
safety,
Id.
design
and
of
Zoloft,
Defendants
Defendants
representations
remand order.
13
II.
A.
We must first address whether this Court has the ability to
review the district courts remand order.
Companies
face
an
insurmountable
barrier
The Pharmaceutical
because
[a]n
order
of
whether
or
not
that
order
might
be
deemed
bar,
the
Pharmaceutical
Companies
argue
that
an
Section
1447(c)
(1)
allows
district
court
to
remand
based
on:
in
removal
other
than
lack
of
subject
matter
after
the
notice
of
removal
was
filed.
Ellenburg
v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)
14
Pharmaceutical
decision
to
consider
outside
the
courts
authority.
district
grounds
the
permissible
court
requisite
Companies
provision
not
Court
has
for
specified
423
U.S.
at
for
has
merely
remand
but
in
the
the
of
district
and
power
erred
has
statute
courts
nonparties
remand
the
not
that
citizenship
grounds
This
that
argue
First,
exceeds
to
in
the
correct
applying
remanded
and
falls
not
the
case
touching
on
the
352).
district
court
exceeds
its
statute.
Thermtron,
423
U.S.
at
351.
The
and
its
progeny
in
this
Court:
Borneman
v.
United
States, 213 F.3d 819 (4th Cir. 2000), as well as Ellenburg, 519
F.3d 192.
In
Thermtron,
the
district
court
had
remanded
the
case
The Supreme
nor
the
jurisdiction
of
15
the
court
was
questioned
by
respondent
in
mentioned.
district
the
Id.
courts
slightest.
at
343-44
concerns
Section
(footnote
were
1447(c)
was
omitted).
administrative
not
even
Because
and
the
blatantly
appellate
review
was
permissible.
Id.
at
345-46.
Id. at 352.
Id. at 822.
the
the
case
under
Westfall
Act,
28
U.S.C.
2679(d)(2),
certifying that the manager was acting within the scope of his
employment and therefore substituting the United States as the
defendant.
Id. at 823.
authority
to
determine
whether
jurisdictional
statutes
General
Westfall Act.
give
effect
to
exclusive
authority
statutes
by
16
to
remove
under
the
the
district
court
Id. at 826.
and
the
bar
of
1447(d)
does
not
preclude
us
from
Id.
addition
to
the
Thermtron
exception
relied
on
in
was joined in the action after the filing of the complaint, and
this party then removed the action to federal court on the basis
of diversity.
Id. at 141.
that the third-party had not been joined properly, and dismissed
the claim against them.
Id. at 142.
the
longer
district
court
no
having
diversity
jurisdiction,
Id.
was
binding
upon
the
state
court.
Id.
at
143.
The
could
be
appealed
because
it
was
Id.
separate
from
the
order
Id.
noted:
[A]n otherwise reviewable ruling is not shielded
from review merely because it is a constituent aspect
of a remand order that would itself appear to be
insulated from review by 1447(d). See Waco v. United
States Fidelity & Guar. Co., 293 U.S. 140, 143, 55 S.
Ct. 6, 79 L.Ed. 244 (1934) (treating separately
components of district courts order dismissing a
party and remanding action); Mangold [v. Analytic
Servs., Inc.], 77 F.3d [1442,] 1446 [(4th Cir. 1996)]
(treating separately components of district courts
order denying immunity and remanding action to state
court).
213 F.3d at 825.
This Court again considered Waco in the Ellenburg case.
In
Id. (alteration
court
jurisdiction,
but
ruled
not
rather
that
that
the
it
lacked
defendants
subject
matter
allegations
of
18
the
jurisdictional
that
it
amount.
Id.
at
195
(internal
lacked
subject
matter
jurisdiction,
Id. at 197.
Therefore, the
reasoned
that,
[t]he
district
courts
selection
This
and
Court
Id. at 197.
went
antecedent
on
to
ruling
reason
even
that
if
[w]e
it
was
may
review
an
essential
Id.
simultaneously
Ellenburg,
language
itself.
This
citing
that
evasion
is
is
language
from
unquestionably
understandable
Borneman
derived
and
from
Waco
considering
the
upon
the
parties
in
subsequent
proceedings
and
(2)
are
purpose
issue
is
of
not
separable
subject
because
it
matter
jurisdiction,
cannot
be
said
to
the
have
Waco, 293
U.S. at 143.
B.
Having established the law that may be applicable here, we
now turn to the facts of this case to determine whether any
exception
applies.
The
Pharmaceutical
Companies
argue
that
under Thermtron this Court can consider the remand order because
the action here was eighteen separate lawsuits and the district
courts decision to consider the citizenship of the Droppsnonpartiesfalls outside the permissible grounds for remand and
exceeds the courts authority.
has the power to correct a district court that has not merely
erred in applying the requisite provision for remand but has
remanded a case on grounds not specified in the statute and not
touching the propriety of the removal.
352.
subject
matter
jurisdiction
over
the
removed
action.
perceived
cause.
that
it
was
without
jurisdiction
over
the
district
courts
remand
order
in
this
case
quite
in
district
the
absence
court
of
remanded
subject
the
case
matter
after
jurisdiction.
explicitly
The
concluding
of
parties
Civil
were
evaluation
Procedure
joined
was
in
plainly
3(a)
was
order
a
to
simply
decide
necessary
to
determine
jurisdiction.
step
for
the
court
what
This
to
the
courts
removed.
Id.
determination
at
590.
that
The
21
the
case
district
was
court
not
here
properly
did
not
remand[]
[it],
[the]
case[]
Thermtron,
on
423
grounds
U.S.
at
that
351;
it
seem
justifiable
remanded
because
to
it
now
the
consider
Borneman
the
and
Pharmaceutical
Ellenburg
Companies
formulation
of
argument
Waco.
This
order
specifically
was
that
based
the
on
parties
conceptual
in
these
antecedent
cases
were
collateral
decision
to
the
district
courts
decision
to
remand.
We do not believe that this exception applies here.
The
between
two
federal
and
we
noted
that
are
considered.
Borneman,
213
F.3d
at
825.
Next,
in
this sua sponte order was reviewable because the district court
did not rely on lack of subject matter jurisdiction.
Id.
matter
jurisdiction.
Unlike
the
central
holding
Ellenburg,
the
district
court
here
was
in
And
obviously
As noted
Here, there is
of
subject
matter
jurisdiction
that
can
be
Were
We refuse
to do this.
Because
the
Pharmaceutical
Companies
have
failed
to
III.
For
the
foregoing
reasons,
we
conclude
that
we
lack
DISMISSED.
24