Monroe v. Smithkline Beecham Corporation et al

Memorandum Defendant GlaxoSmithKline LLC's Supplemental Submission in Support of its Motion for Relief from Order re MOTION for Relief from Order

E.D. Pa.June 28, 2010

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA THOMAS MONROE, JR. And AL VINIA MONROE, Plaintiffs, Civil Action No. 2:10-cv-02140 v. SMITHKLINE BEECHA CORPORATION d/b/a GLAXOSMITHKLINE; and GLAXOSMITHKLINE LLC, Defendant. DEFENDANT GLAXOSMITHKLINE LLC'S SUPPLEMENTAL SUBMISSION IN SUPPORT OF ITS MOTION FOR RELIEF FROM ORDER GlaxoSmithKine LLC ("GSK LLC") fies this supplemental submission in support of its Motion for Relief from Order to clarfy that this Cour stil has jursdiction to reconsider the Order granting Plaintiffs' Motion to Remand, and that there are additional, importt reasons for this Cour to reconsider its Order. i As more fully explained in GSK LLC's Amended Memorandum in Opposition to Plaintiffs' Motion to Remand, because Plaintiffs filed their Motion to Remand more than 30 days afer GSK LLC filed its Notice of Removal, remand is not proper under 28 U.S.C. § 1447(c). Moreover, because remand was not subject to 28 U.S.C. §1447(c), section 1447(d) does not prohibit this Cour from reconsidering its decision. Plaintiffs' Motion to Remand-and this Cour's Order-is based on the assertion that GSK LLC is a citizen of Pennsylvana, and therefore removal by a resident defendant was not proper under 28 U.S.C. §1441(b). As acknowledged by this Cour, Plaintiffs' argument was that i GSK LLC's Motion for Relief from Order was fied within hours of the Cour's decision on Friday, June 25, 2010. This supplemental submission one business day later is similarly timely under Federal Rule of Civil Procedure 60 and Local Rule of Civil Procedure 7.1 (g). Case 2:10-cv-02140-JCJ Document 18 Filed 06/28/10 Page 1 of 5 removal was not procedurally proper, rather than claiming a defect in subject matter jursdiction. Memorandum and Order at 5. Therefore, under 28 U.S.C. § 1447(c), Plaintiffs had to file a motion to remand within 30 days of the Notice of Removal, which was filed on May 10,2010. Each time this Cour has addressed this issue since 2004, it has held that plaintiffs have 30 days-and 30 days only-from the filing of the notice of removal in which to file a motion to remand. See Ramos v. Quien, 631 F. Supp. 2d 601, 609 (E.D. Pa. 2008) (Baylson, J.) (motion to remand fied 31 days after removal was untimely because the 30-day period to file a motion to remand under section 1447(c) is not extended by Federal Rule of Civil Procedure 6(d), as the period to fie a motion to remand commences when the defendant files a notice of removal, not when the notice is served) (providing comprehensive analysis of Rule 6 and rejecting previous case law from 1992 and 1995); Brown v. Modell's PA II, Inc., CIV. A. 08-1528 (E.D. Pa. July 1, 2008) (Yohn, 1.) (same); In re Diet Drugs, No. Civ.A. 03-20614, 2004 WL 2062894, *2 (E.D. Pa. Sept. 14, 2004) (Barle, C. J.) (same). In fact, Plaintiffs filed their Motion to Remand on June 10, 2010-31 days later. Plaintiffs have therefore waived the alleged procedural defect in this case, and remand was not proper under 28 U.S.C. § 1447(c): Because removal by a foru defendant in non-compliance with section 1441 (b) does not deprive a federal cour of subject matter jursdiction, it is clear under section 1447(c) that this irregularty must be the subject of a motion to remand within 30 days after filing the notice of removal. . .. It follows ineluctably that the district cour in this case had no statutory authority to issue the remand order after the 30-day period because the defect was in the removal procedure rather than a lack of subject matter jursdiction, which could be raised at any time. Korea Exch. Bank, NY. Branch v. Trackwise Sales Corp., 66 F .3d 46, 50-51 (3d Cir. 1995). It is well established where remand is not sanctioned by 28 U.S.C. § 1447(c), the prohibition against reconsideration or appeal of a remand order set out in 28 U.S.C. § 1447(d) 2 Case 2:10-cv-02140-JCJ Document 18 Filed 06/28/10 Page 2 of 5 does not apply. Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 346 (1976) ("(Only remand orders issued under § 1447(c) . . . are immune from review under § 1447(d)"); Ariel Land Owners, Inc. v. Dring, 351 F.3d 611,613 (3d Cir. 2003); In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 448-49 (3d Cir. 2000); Korea Exch. Bank, 66 F.3d at 48, 51; see also Shapiro v. Logistec USA, Inc., 412 F.3d 307 (2d Cir. 2005) (holding that district court may reconsider motion to remand where motion was not timely fied and asserted improper removal by a resident defendant). Because remand was improper under 28 U.S.C. § 1447(c), this Cour has the authority to reconsider its Order and deny Plaintiffs' untimely-fied Motion to Remand. Respectfully submitted, lsI Ellen Rosen Rogoff Ellen Rosen Rogoff Danel T. Fitch Leslie M. Greenspan Pa. Attorney Nos. 43468,53717,91639 STRALEY, RONON, STEVENS & YOUNG, LLP 2600 One Commerce Square Philadelphia, PA 19103-7098 (215) 564-8000 Brian P. Johnson JOHNSON, TRENT, WEST & TAYLOR, L.L.P. 919 Milam Street, Suite 1700 Houston, TX 77002 (713) 222-2323 Admitted Pro Hac Vice Madeleine McDonough SHOOK, HAY & BACON L.L.P. 1155 F Street, NW, Suite 200 Washington, D.C. 20004-1305 (202) 639-5600 Admitted Pro Hac Vice Attorneys for Defendant, GlaxoSmithKine LLC 3 Case 2:10-cv-02140-JCJ Document 18 Filed 06/28/10 Page 3 of 5 Of Counsel: Timothy A. Thelen, Esquire Assistant General Counsel GlaxoSmithKine LLC 5 Moore Drive Research Triangle Park, NC 27709 Dated: June 28,2010 4 Case 2:10-cv-02140-JCJ Document 18 Filed 06/28/10 Page 4 of 5 CERTIFICATE OF SERVICE I, Ellen Rosen Rogoff, Esquire, hereby certify that on June 28, 2010, I caused a true and correct copy of the foregoing Defendant GlaxoSmithKline LLC's Supplemental Submission in Support of Its Motion for Relief from Order to be fied with the Cour via the Electronic Cour Filing system. The document is available for review and downloading on the Electronic Cour Filing system and such electronic filing automatically generates a Notice of Electronic Filing constituting service of the filed document on all counsel of record identified on the docket and listed below: Lee B. Balefsky, Esquire Michelle Tiger, Esquire KLINE & SPECTER, P.C. 1525 Locust Street, 19th Floor Philadelphia, P A 19102 Justin G. Witkin, Esquire A YLSTOCK, WITKIN, KRIS & OVERHOL TZ, PLLC 803 Nort Palafox Street Pensacola, FL 32564 Attorneys for Plaintif IsÆllen Rosen Rogoff Ellen Rosen Rogoff Case 2:10-cv-02140-JCJ Document 18 Filed 06/28/10 Page 5 of 5