E.D. v. Pfizer, Incorporated

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-04105. [999148877]. [12-2188, 12-2189, 12-2190, 12-2191, 12-2193, 12-2194, 12-2195, 12-2197, 12-2199, 12-2205, 12-2207, 12-2208, 12-2218, 12-2219, 12-2220, 12-2221, 12-2223, 12-2224]

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 1 of 24

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
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2189

J.C., a minor by and through his mother and next friend;
MICHELLE COOK,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2190

D.B., a minor by and through his mother and next friend;
NINA BRUMFIELD,
Plaintiffs - Appellees,

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 2 of 24

v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2191

T.S., a minor by and through his mother and next friend;
DAWN SKURRY,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2193

C.S., a minor child by and through his mother and next
friend; KIMBERLY LANCASTER,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
Defendants - Appellants.

2

of

Pfizer,

Inc.;

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 3 of 24

No. 12-2194

K.W., a minor by and through her mother and next friend;
ANGEL WOLKFERTZ,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2195

A.N., a minor by and through her mother and next friend;
HEATHER NORFOLK,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2197

J.E., a minor by and through his mother and next friend;
MARLO CHEEKS,
Plaintiffs - Appellees,
v.

3

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 4 of 24

PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2199

D.M., a minor by and through his mother and next friend;
REBECCA MARDORF,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2205

I.Z., a minor by and through his mother and next friend;
MARY MASTERS,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
Defendants - Appellants.

4

of

Pfizer,

Inc.;

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 5 of 24

No. 12-2207

C.B., a minor by and through her mother and next friend;
LALA FIELDS,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2208

M.M., a minor by and through her mother and next friend;
JEANETTE MASKILL,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2218

J.S., a minor by and through his mother and next friend;
CINDY SIMPSON−DURAND,
Plaintiffs - Appellees,
v.

5

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 6 of 24

PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2219

H.S., by and through her mother and next friend; SHANNON
SCALISI,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2220

L.V., a minor by and through his mother and next friend;
LORIE VINSON,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,
Defendants - Appellants.

6

of

Pfizer,

Inc.;

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 7 of 24

No. 12-2221

A.H., a minor by and through her mother and next friend;
HEATHER SLABAUGH,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2223

A.W., a minor child by and through his mother and next
friend; SHERI WIDNER,
Plaintiffs - Appellees,
v.
PFIZER,
INC.;
ROERIG,
a
division
GREENSTONE, LLC, f/k/a Greenstone Ltd.,

of

Pfizer,

Inc.;

Defendants - Appellants.

No. 12-2224

H.C., a minor by and through her mother and next friend;
MELISSA SHROYER,
Plaintiffs - Appellees,
v.

7

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 8 of 24

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:

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

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 9 of 24

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

proscribed

Wayne

County,

West

our

ability

to

Virginia.

review

a

Congress

district

has

sharply

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.
liability
Companies.

and

negligence

The

families

The families brought products

claims
allege

against
that

the

the

Pharmaceutical

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

Appeal: 12-2188

Doc: 44

Besides

the

Filed: 07/12/2013

Dropp

family,

Pg: 10 of 24

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.
Pharmaceutical

Companies

interpret

nineteen distinct actions exist.
rule

and

completely

because

this

to

mean

that

Based upon this reading of the

eighteen

of

the

from

all

of

diverse

rule

The

nineteen

were

defendants,

the

families

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

13,

pending

in

state

court.

On

August

2012,

the

eighteen removed families filed individual motions to remand in
the district court.
The Pharmaceutical Companies argued below that removal was
proper
that

because
each

the

actions,

plaintiff

is

when

diverse

analyzed
from

each

individually,

show

defendant.

The

families argue, however, that the action is a single case and
that

the

families

were

treated
10

separately

only

for

Appeal: 12-2188

Doc: 44

administrative
diversity

Filed: 07/12/2013

purposes,

jurisdiction

and

Pg: 11 of 24

this

analysis.

has
The

no

bearing

district

on

court

the
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

amendment

then

examined

a

case

prior

to

the

2008

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.
at 392.

Id.

The Grennell plaintiffs were assigned separate case

numbers and paid individual filing fees.
required to file multiple complaints.

However, they were not
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.

district court reasoned:

11

Id.

Similarly,

here

the

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 12 of 24

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
action

for

concluding
purposes

that
of

the

action

diversity

was

really

jurisdiction,

the

one

civil

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

12

non-diverse

plaintiff,

was

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

fraudulently joined.

Pg: 13 of 24

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

knowledge

of

include

Zoloft’s

about its safety.”

the

safety,

Id.

design
and

of

Zoloft,

Defendants’

Defendants’

representations

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

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 14 of 24

II.
A.
We must first address whether this Court has the ability to
review the district court’s remand order.
Companies

face

an

insurmountable

barrier

The Pharmaceutical
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).
statutory

bar,

the

Pharmaceutical

Despite this general

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
jurisdiction.
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)

“(1)

allows

a

district

court

to

remand

based

on:

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

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

(quoting 28 U.S. § 1447(c)).

Pg: 15 of 24

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.
the

Pharmaceutical

decision

to

Companies

consider

outside

the

court’s

authority.

district

grounds

permissible

court

requisite

the

provision

not

Court

has
for

specified

423

U.S.

at

for
has

of

remand

but

the

district

and

power

erred
has

statute

court’s

“nonparties”

remand

merely

in

the

the

not

propriety of the removal.”
Thermtron,

that

citizenship

grounds

This

that

argue

First,

exceeds

“to

in

the

correct

applying

remanded

and

falls

not

a

a

the

case

touching

on
the

Ellenburg, 59 F.3d at 196 (quoting

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
15

the

court

was

questioned

by

Appeal: 12-2188

Doc: 44

respondent

in

mentioned.”
district

Filed: 07/12/2013

the
Id.

court’s

Pg: 16 of 24

slightest.
at

343-44

concerns

Section
(footnote

were

1447(c)

was

omitted).

administrative

not

even

Because
and

the

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

the

case

under

The Attorney General then removed

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

Westfall Act.
give

effect

to

exclusive

authority

See id. at 826.
both

statutes

by
16

to

remove

under

the

This Court reasoned we could
allowing

the

district

court

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 17 of 24

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.”
In

Id.

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.

the

longer

district

court

no

This dismissal resulted in

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 thirdparty

was

binding

upon

the

state

court.

Id.

at

143.

The

Supreme Court held that the order dismissing the third-party
17

Appeal: 12-2188

could

Doc: 44

be

Filed: 07/12/2013

appealed

because

remanding the entire case.

Pg: 18 of 24

it

was

Id.

separate

from

the

order

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).
district

court

jurisdiction,

but

ruled

not

rather

that

that

the

it

lacked

defendants’

But then the

subject

matter

allegations

of

diversity jurisdiction were “inadequate” and that their Notice

18

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 19 of 24

of Removal failed “to establish that the amount in controversy
exceeds

the

jurisdictional

quotation marks omitted).
conclusion

that

it

amount.”

Id.

at

195

(internal

The district court never reached the

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.
Court

reasoned

that,

“[t]he

district

court’s

selection

This
and

application of a legal standard for pleading in a notice of
removal thus remains reviewable as a ‘conceptual antecedent’ to
the remand order.”
Waco—this
conceptual

Court

Id. at 197.

went

antecedent

on

to

ruling

Citing Borneman—which had cited

reason
even

that
if

“[w]e

it

was

may

review

a

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

Ellenburg,

language

itself.

This

citing

that

evasion

is
is

language

from

unquestionably
understandable

Borneman

derived

and

from

Waco

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

Appeal: 12-2188

upon

Doc: 44

the

Filed: 07/12/2013

parties

in

Pg: 20 of 24

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).
the

purpose

issue

is

of

not

Further, if the court looks to an issue for
determining

separable

subject

because

it

matter

jurisdiction,

cannot

be

said

preceded the remand decision “in logic and in fact.”

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
court’s decision to consider the citizenship of the Dropps—“nonparties”—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.”
352.

Thermtron, 423 U.S. at

However, if the district court issued the remand order on

the ground that it lacked subject matter jurisdiction, we have
20

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 21 of 24

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

cause.”

that

it

was

without

jurisdiction

over

the

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

district

the

absence

court

of

remanded

subject

the

case

matter
after

jurisdiction.

explicitly

The

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.
Rule

The reason the district court considered West Virginia

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

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

removed.”

Id.

determination
at

590.

that

The
21

the

case

district

was

court

not
here

properly
did

not

Appeal: 12-2188

Doc: 44

“remand[]

Filed: 07/12/2013

case[]

Thermtron,

[it],”

[the]

on

423

Pg: 22 of 24

grounds

U.S.

at

that

351;

it

seem

justifiable

remanded

because

to
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
under

now

the

consider

Borneman

the

and

Pharmaceutical

Ellenburg

Companies’

formulation

of

argument

Waco.

This

exception allows this Court to review “a collateral decision
that is severable from the remand order.”
at 583.
court’s
ruling,”

Blackwater, 460 F.3d

The Pharmaceutical Companies claim that the district
remand

order

specifically

was
that

based
the

on

a

parties

“conceptual
in

these

antecedent
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.
tension

between

two

federal

First, in Borneman, there was a
statutes,
22

and

we

noted

that

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 23 of 24

“§ 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

Borneman, there is no conflict between federal statutes.
unlike

Ellenburg,

the

district

court

here

was

in
And

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

separated from the inquiry of subject matter jurisdiction.

be
Were

we to accept the Pharmaceutical Companies’ argument, we would
23

Appeal: 12-2188

Doc: 44

Filed: 07/12/2013

Pg: 24 of 24

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,

jurisdiction to hear this appeal.

we

conclude

that

we

lack

As a result, this case is

DISMISSED.

24