PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 12-2188
E.D., a minor by and through her mother and next friend; DENISE DARCY,
Plaintiffs - Appellees,
v.
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
Defendants - Appellants.
No. 12-2189
J.C., a minor by and through his mother and next friend; MICHELLE COOK,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2190
D.B., a minor by and through his mother and next friend; NINA BRUMFIELD,
Plaintiffs - Appellees, v.
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2191
T.S., a minor by and through his mother and next friend; DAWN SKURRY,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2193
C.S., a minor child by and through his mother and next friend; KIMBERLY LANCASTER,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
2 No. 12-2194
K.W., a minor by and through her mother and next friend; ANGEL WOLKFERTZ,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2195
A.N., a minor by and through her mother and next friend; HEATHER NORFOLK,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2197
J.E., a minor by and through his mother and next friend; MARLO CHEEKS,
3 PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2199
D.M., a minor by and through his mother and next friend; REBECCA MARDORF,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2205
I.Z., a minor by and through his mother and next friend; MARY MASTERS,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
4 No. 12-2207
C.B., a minor by and through her mother and next friend; LALA FIELDS,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2208
M.M., a minor by and through her mother and next friend; JEANETTE MASKILL,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2218
J.S., a minor by and through his mother and next friend; CINDY SIMPSON−DURAND,
5 PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2219
H.S., by and through her mother and next friend; SHANNON SCALISI,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2220
L.V., a minor by and through his mother and next friend; LORIE VINSON,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
6 No. 12-2221
A.H., a minor by and through her mother and next friend; HEATHER SLABAUGH,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2223
A.W., a minor child by and through his mother and next friend; SHERI WIDNER,
PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
No. 12-2224
H.C., a minor by and through her mother and next friend; MELISSA SHROYER,
7 PFIZER, INC.; ROERIG, a division of Pfizer, Inc.; GREENSTONE, LLC, f/k/a Greenstone Ltd.,
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: May 15, 2013 Decided: July 12, 2013
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and FLOYD and THACKER, Circuit Judges.
Dismissed by published opinion. Judge Floyd wrote the opinion, in which Justice O’Connor and Judge Thacker joined.
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.
8 FLOYD, Circuit Judge:
Appellants Pfizer Inc.; Roerig, a division of Pfizer; and
Greenstone, LLC (collectively, the Pharmaceutical Companies),
bring this appeal challenging the district court’s decision to
remand for lack of subject matter jurisdiction to the Circuit
Court of Wayne County, West Virginia. Congress has sharply
proscribed our ability to review a district court’s remand
order, and because none of the exceptions to this prohibition
are present here, we dismiss this appeal for lack of
jurisdiction.
I.
This action was commenced by nineteen plaintiff families
upon filing a single complaint. The families brought products
liability and negligence claims against the Pharmaceutical
Companies. The families allege that the prescription anti-
depressant sertraline hydrochloride, branded as Zoloft, caused
birth defects to each child born of a pregnancy where the mother
ingested Zoloft. Pfizer is a corporation organized under
Delaware law and has its principle place of business in New
York. Greenstone is a limited liability company wholly owned by
Pharmacia Corporation, which is a corporation organized under
Delaware law with its principle place of business in New Jersey.
9 Besides the Dropp family, citizens of New York, all other
families are diverse from the Pharmaceutical Companies.
Instead of filing the complaint as a single civil action,
the clerk of court, pursuant to West Virginia Rule of Civil
Procedure 3(a), docketed each family separately, resulting in
nineteen distinct actions, one action for each family named in
the complaint. The clerk assigned each family a civil action
number and charged them a separate filing fee. However, the
families were not required to file separate complaints. The
Pharmaceutical Companies interpret this rule to mean that
nineteen distinct actions exist. Based upon this reading of the
rule and because eighteen of the nineteen families were
completely diverse from all of the defendants, the
Pharmaceutical Companies removed all but the non-diverse Dropp
family to the United States District Court for the Southern
District of West Virginia on August 7, 2012. The Dropp case
remains pending in state court. On August 13, 2012, the
eighteen removed families filed individual motions to remand in
the district court.
The Pharmaceutical Companies argued below that removal was
proper because the actions, when analyzed individually, show
that each plaintiff is diverse from each defendant. The
families argue, however, that the action is a single case and
that the families were treated separately only for
10 administrative purposes, and this has no bearing on the
diversity jurisdiction analysis. The district court first
recognized that Rule 3(a) was enacted in 2008 to require that
actions filed by unrelated plaintiffs must be docketed as
separate actions and must each be charged a fee. The district
court then examined a case prior to the 2008 amendment to
discern the purpose of the separate docketing and filing fee
requirement. See Grennell v. W. S. Life Ins. Co., 298 F. Supp.
2d 390 (S.D. W. Va. 2004).
In Grennell, the Supreme Court of Appeals of West Virginia
had authorized the clerks of court to separately docket cases
and charge supplemental filing fees, and the court considered
whether this administrative action created distinct cases. Id.
at 392. The Grennell plaintiffs were assigned separate case
numbers and paid individual filing fees. However, they were not
required to file multiple complaints. Id. The court reasoned
that “if Plaintiffs were not joined in one action, the Circuit
Court would have required them to file a separate complaint on
behalf of each plaintiff.” Id. at 395. It went on to conclude
that although the cases had been administratively separated, the
defendants did not show that the plaintiffs were not properly
joined for diversity analysis. Id. Similarly, here the
district court reasoned:
11 Mass action rules similar to those given by the administrative order at issue in Grennell were added to West Virginia Rule of Civil Procedure 3(a) in 2008. Defendants argue that Rule 3(a) can be distinguished from the administrative order in Grennell, because Rule 3(a) specifies that each plaintiff’s claim shall be “docketed as a separate civil action.” W. Va. R. Civ. P. 3(a). Defendants offer no authority, however, for the proposition that Rule 3(a) was meant to have the rather severe substantive effect of prohibiting all unrelated persons from proceeding with a mass claim in West Virginia state courts. Instead, it seems more likely that the changes to Rule 3(a) were intended to alter the administration of mass claims by the state courts. Plaintiffs provide the affidavit of the Clerk of the Wayne County Circuit Court, Milton Ferguson (Ferguson Affidavit), stating that Plaintiffs in this matter were separated by the state court as directed by Rule 3(a), but that they were not required to file separate complaints, were not considered separate cases, and were all assigned to the same judge. Id. A single affidavit may not be dispositive on the question of how to interpret a state rule of civil procedure, but in this case, it illustrates the principle evident from the changes to Rule 3(a) and the principle adopted by this Court in Grennell: administrative separation of claims in state court does not determine the propriety of joinder in federal court. Defendants have not met their burden of demonstrating that Plaintiffs’ claims were not properly joined because of case processing practices in Wayne County Circuit Court.
J.C. ex rel. Cook v. Pfizer, Inc., 3:12-cv-04103, 2012 WL
4442518, at *3 (S.D. W. Va. Sept. 25, 2012).
After concluding that the action was really one civil
action for purposes of diversity jurisdiction, the district
court then addressed the Pharmaceutical Companies’ alternative
argument, that even if the case can be viewed as a single case,
the Dropp family, the only non-diverse plaintiff, was
12 fraudulently joined. The fraudulent joinder doctrine provides
an exception to the complete diversity requirement. Thus, if
the Dropp family was fraudulently joined, the district court had
jurisdiction. To establish fraudulent joinder, the district
court required the Pharmaceutical Companies to show that the
families failed to meet either or both of the requirements for
joinder, namely: (1) the claims must arise out of the same
transaction, series of transactions, or occurrence, and (2) some
question of law or fact common to all parties must be present.
The district court ultimately found that the families met both
requirements. First, the claims were “logically related and
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
requirement was satisfied because “[q]uestions of fact common to
all [p]laintiffs include the design of Zoloft, Defendants’
knowledge of Zoloft’s safety, and Defendants’ representations
about its safety.” Id. Thus, the district court determined
that joinder was proper.
After considering the Pharmaceutical Companies’ arguments
and concluding that no basis for subject matter jurisdiction
existed, the district court granted the families’ motions to
remand to state court. The Pharmaceutical Companies appeal the
remand order.
13 II.
A.
We must first address whether this Court has the ability to
review the district court’s remand order. The Pharmaceutical
Companies face an insurmountable barrier because “[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),
regardless of “whether or not that order might be deemed
erroneous by [us],” Thermtron Prods., Inc. v. Hermansdorfer, 423
U.S. 336, 351 (1976), abrogated on other grounds by QuackenBush
v. Allstate Ins. Co., 517 U.S. 706 (1996). Despite this general
statutory bar, the Pharmaceutical Companies argue that an
exception to § 1447(d) applies and allows review of this case.
The families disagree, arguing that the remand order rested on
the district court’s conclusion that it lacked subject matter
This Court’s review of a remand order is barred if the
order is within the scope of 28 U.S.C. § 1447(c). Section
1447(c) allows a district court to remand based on: “(1) a
district court’s lack of subject matter jurisdiction or (2) a
defect in removal ‘other than lack of subject matter
jurisdiction’ that was raised by the motion of a party within 30
days after the notice of removal was filed.” Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008)
14 (quoting 28 U.S. § 1447(c)). Therefore, our review is barred if
the order was based on grounds in § 1447(c) and “invok[ed] the
grounds specified therein,” Thermtron, 423 U.S. at 346. First,
the Pharmaceutical Companies argue that the district court’s
decision to consider the citizenship of “nonparties” falls
outside the permissible grounds for remand and exceeds the
court’s authority. This Court 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.” Ellenburg, 59 F.3d at 196 (quoting
Thermtron, 423 U.S. at 352). A district court exceeds its
statutory authority when it remands a case “on grounds that seem
justifiable to [the court] but which are not recognized by the
controlling statute.” Thermtron, 423 U.S. at 351. The
Pharmaceutical Companies argue for review under the Thermtron
exception 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
because it had determined that its docket was too crowded to
hear it in a timely fashion. 423 U.S. at 344. The Supreme
Court expressed concern that “[n]either the propriety of the
removal nor the jurisdiction of the court was questioned by
15 respondent in the slightest. Section 1447(c) was not even
mentioned.” Id. at 343-44 (footnote omitted). Because the
district court’s concerns were administrative and blatantly
beyond the purview of § 1447(c), the Supreme Court concluded
that appellate review was permissible. Id. at 345-46.
Accordingly, the Supreme Court held that appellate courts have
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.” Id. at 352.
After Thermtron, this Court expounded upon this exception
in Borneman, 213 F.3d 819. In Borneman, a United States postal
employee brought assault and battery claims against his manager
in state court. Id. at 822. The Attorney General then removed
the case under the 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. On appeal, this Court recognized the
tension between 28 U.S.C. § 1447(d), which gives the district
court authority to determine whether jurisdictional statutes
have been satisfied, and 28 U.S.C. § 2679(d)(2), which gives the
Attorney General exclusive authority to remove under the
Westfall Act. See id. at 826. This Court reasoned we could
give effect to both statutes by allowing the district court
16 authority to issue remand orders based on § 1447(c) “except when
Congress directs otherwise in a more specific situation, such as
where Congress gives the Attorney General the exclusive power to
decide whether to have a Westfall Act case tried in federal
court.” Id. at 826. Consequently, “a district court has no
authority to remand a case removed pursuant to [the Westfall
Act], and the bar of § 1447(d) does not preclude us from
reviewing a remand order when the district court exceeds its
authority.” Id.
In addition to the Thermtron exception relied on in
Borneman, this Court in Borneman also cited principles that the
Supreme Court first recognized in Waco v. United States Fidelity
& Guaranty Co., 293 U.S. 140 (1934). In Waco, a diverse party
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. The district court then determined
that the third-party had not been joined properly, and dismissed
the claim against them. Id. at 142. This dismissal resulted in
the district court no longer having diversity jurisdiction,
causing the district court to remand the entire case to state
court. Id. The dismissal left the City of Waco in a difficult
position, as the district court’s order dismissing the third-
party was binding upon the state court. Id. at 143. The
Supreme Court held that the order dismissing the third-party
17 could be appealed because it was separate from the order
remanding the entire case. Id. The Court noted that the remand
could not be appealed, but because “in logic and in fact the
decree of dismissal preceded that of remand and was made by the
District Court while it had control of the cause,” the dismissal
could be reviewed. Id. Following Waco, this Court in Borneman
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 court’s 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 court’s order denying immunity and remanding action to state court).
213 F.3d at 825.
This Court again considered Waco in the Ellenburg case. In
Ellenburg, the district court remanded without having a motion
to remand before it. 519 F.3d at 197. The district court
stated that the case was before it “for a determination as to
whether it ha[d] jurisdiction over the matter.” Id. (alteration
in original) (internal quotation marks omitted). But then the
district court ruled not that it lacked subject matter
jurisdiction, but rather that the defendants’ allegations of
diversity jurisdiction were “inadequate” and that their Notice
18 of Removal failed “to establish that the amount in controversy
exceeds the jurisdictional amount.” Id. at 195 (internal
quotation marks omitted). The district court never reached the
conclusion that it lacked subject matter jurisdiction,
concluding only that the Notice of Removal had not presented a
factual basis sufficient to permit the court to make a decision
on subject matter jurisdiction. Id. at 197. Therefore, the
remand was not on § 1447(c) grounds and was not authorized by
the remand statute because no party had made a motion. This
Court reasoned that, “[t]he district court’s selection and
application of a legal standard for pleading in a notice of
removal thus remains reviewable as a ‘conceptual antecedent’ to
the remand order.” Id. at 197. Citing Borneman—which had cited
Waco—this Court went on to reason that “[w]e may review a
conceptual antecedent ruling even if it was an essential
precursor to a remand order that is itself unreviewable under §
1447(d).” Id.
The Pharmaceutical Companies here disclaim reliance on Waco
while simultaneously citing language from Borneman and
Ellenburg, language that is unquestionably derived from Waco
itself. This evasion is understandable considering the
restrictions we have placed on asserting the Waco exception.
“This Court restricts the applicability of the Waco exception to
purportedly reviewable orders that (1) have a preclusive effect
19 upon the parties in subsequent proceedings and (2) are
severable, both logically and factually, from the remand order
itself.” Palmer v. City Nat’l Bank of W. Va., 498 F.3d 236, 240
(4th Cir. 2007). Further, if the court looks to an issue for
the purpose of determining subject matter jurisdiction, the
issue is not separable because it cannot be said to have
preceded the remand decision “in logic and in fact.” 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
court’s decision to consider the citizenship of the Dropps—“non-
parties”—falls outside the permissible grounds for remand and
exceeds the court’s authority. As previously noted, this Court
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.” Thermtron, 423 U.S. at
352. However, if the district court issued the remand order on
the ground that it lacked subject matter jurisdiction, we have
20 no authority to review the order. In fact “we need not delve
into whether the district court was correct to hold that it
lacked subject matter jurisdiction over the removed action.
Rather, an order is issued pursuant to § 1447(c) if the district
court perceived that it was without jurisdiction over the
cause.” In re Blackwater Security Consulting, LLC, 460 F.3d
576, 585 (2006).
The district court’s remand order in this case quite
obviously falls within the ambit of § 1447(c)’s requirement of
remand in the absence of subject matter jurisdiction. The
district court remanded the case after explicitly concluding
that the Pharmaceutical Companies had not established subject
matter jurisdiction. The district court did so by considering
whether a state rule of procedure created distinct cases, or
whether there was one action in which the Dropp family was a
party. The reason the district court considered West Virginia
Rule of Civil Procedure 3(a) was simply to determine what
parties were joined in order to decide jurisdiction. This
evaluation was plainly a necessary step for the court to
determine subject matter jurisdiction and is inseverable from
that conclusion. As we have previously concluded, we cannot
review rulings that “are simply the necessary legal underpinning
to the court’s determination that the case was not properly
removed.” Id. at 590. The district court here did not
21 “remand[] [the] case[] on grounds that seem justifiable to
[it],” Thermtron, 423 U.S. at 351; it remanded because it
determined that it did not have jurisdiction to hear the case.
Accordingly, the Pharmaceutical Companies have failed to prove
that the district court exceeded its authority when it looked at
the Dropps’ citizenship.
We now consider the Pharmaceutical Companies’ argument
under the Borneman and Ellenburg formulation of Waco. This
exception allows this Court to review “a collateral decision
that is severable from the remand order.” Blackwater, 460 F.3d
at 583. The Pharmaceutical Companies claim that the district
court’s remand order was based on a “conceptual antecedent
ruling,” specifically that the parties in these cases were
different than those actually included in the captions of each
case as docketed in state court. Simply put, the Pharmaceutical
Companies contend that the district court’s determination that
the Dropps were actually parties in this action is reviewable as
a collateral decision to the district court’s decision to
remand.
We do not believe that this exception applies here. The
Pharmaceutical Companies’ formulation of Waco would overstrain
this exception. This is especially true in light of the facts
in Borneman and Ellenburg. First, in Borneman, there was a
tension between two federal statutes, and we noted that
22 “§ 1447(d)’s restriction on appellate review of remand orders
cannot be read categorically when other statutes in tension with
it are considered.” Borneman, 213 F.3d at 825. Next, in
Ellenburg, the district court remanded for a defect in removal
even though the statute did not allow the court to do so without
a motion before it. 519 F.3d at 194. This Court concluded that
this sua sponte order was reviewable because “the district court
did not rely on lack of subject matter jurisdiction.” Id.
The facts of this case do not indicate any purpose other
than a joinder analysis undertaken solely for the resolution of
subject matter jurisdiction. Unlike the central holding in
Borneman, there is no conflict between federal statutes. And
unlike Ellenburg, the district court here was obviously
addressing subject matter jurisdiction when it went beyond the
complaint and looked at West Virginia Rule of Civil Procedure
3(a). Further, the Pharmaceutical Companies fail to meet the
requirements for this Court’s formulation of Waco. As noted
above, this Court requires the order to have both a preclusive
effect in subsequent proceedings and to be severable from the
remand order itself. Palmer, 498 F.3d at 240. Here, there is
no preclusive effect and there was no decision that preceded the
determination of subject matter jurisdiction that can be
separated from the inquiry of subject matter jurisdiction. Were
we to accept the Pharmaceutical Companies’ argument, we would
23 open up for review any legal or factual analysis that a district
court takes to determine whether to remand an action. We refuse
to do this.
Because the Pharmaceutical Companies have failed to
establish that an exception should apply here, and because the
plain language of § 1447(c) bars our review of this case, we
conclude that we do not have the authority to review the remand
order, and we end our analysis here.
III.
For the foregoing reasons, we conclude that we lack
jurisdiction to hear this appeal. As a result, this case is
DISMISSED.