The Court of Appeals for the Third Circuit held that the second removal of a case violated the Hundred Day Rule and therefore was untimely.
In A.S. v. Smithkline Beecham Corp. 769 F.3d 204 (3rd Cir. 2014) Plaintiffs filed a suit claiming that defendants drug caused birth defects. Defendant removed the case from the state court in Philadelphia to the United States District Court for the Eastern District of Pennsylvania. The district court found that defendant was a citizen of Pennsylvania as was the plaintiff and remanded to state court because there was not diversity of citizenship. Subsequently, within 30 days after the suit was remanded, the Third Circuit Court of Appeals decided another case in which it held that defendant was a citizen of Delaware. In view of this finding by the Court of Appeals the defendant re-removed the case. This time, the district court denied the motion to remand and certified its order for interlocutory review to allow the Court of Appeals to determine whether a defendant may remove a case a second time based on diversity jurisdiction more than one year after the commencement of the case. The Court of Appeals accepted the certification of the question.
The Court of Appeals noted that the case originally commenced on September 30, 2011 and the Notice of Removal before it was filed on June 26, 2013, more than a year and a half later. The court said that although a one year time limit is procedural and not jurisdictional and that the time limit may be equitably told in certain circumstances, this was not such a circumstance. The Court said:
“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.”
Because the second removal is untimely under ?1446(b) the court reversed and remanded with instructions that the district court remand the case to the Philadelphia County Court of Common Pleas.