Opinion
3:03-CV-2879-P.
April 1, 2005
ORDER
Now before the Court is Vaccine Defendants' ("Defendants") Motion to Reconsider Order of Remand and Notice of Supplemental Authority ("Motion to Reconsider"), filed October 6, 2004. Plaintiffs filed their Response on October 19, 2004, and Defendants filed their Reply on October 25, 2004.
The "Vaccine Defendants" are Aventis Pasteur Inc., Baxter Healthcare, Inc. (incorrectly named as Baxter International, Inc.), Merck Co. Inc., SmithKline Beecham Corporation d/b/a GlaxoSmithKline (incorrectly named as GlaxoSmithKline, Individually and as Successor in Interest to SmithKlineBeecham Corp.), and Wyeth (incorrectly named as American Home Products d/b/a Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories).
After considering the parties' arguments and briefing, and the applicable law, the Court hereby DENIES Defendants' Motion to Reconsider.
I. Background and Procedural History
On September 30, 2004, this Court granted Plaintiffs' Motion to Remand. The following paragraphs restate essentially the factual background of that Order.
Plaintiffs Cory and Kim Tenbrook, individually and on behalf of their minor child, Tyler Tenbrook ("Tyler"), who all claim Texas citizenship, originally brought this case in the 44th Judicial District Court, Dallas County, Texas, on May 29, 2003. In that forum, they alleged that Tyler sustained neurological injuries from exposure to the preservative thimerosal, and that such exposure led to neuro-developmental disorders. In their Original Petition, Plaintiffs sought causes of action for strict liability, negligence, breach of warranty, fraud and misrepresentation, and civil conspiracy against the numerous defendants, including Oribi, Inc., ("Oribi") and Jerry K. Johnson, M.D. ("Dr. Johnson"), who both claim Texas citizenship.
The parties named in Plaintiffs' Motion to Remand included: (1) Wyeth, f/k/a American Home Products Corporation (incorrectly named as American Home Products d/b/a Wyeth, Wyeth Laboratories, Wyeth-Ayerst, Wyeth-Ayerst Laboratories, Wyeth Lederle, Wyeth Lederle Vaccines, and Lederle Laboratories), (2) Aventis Pasteur, Inc., Individually and as Successor in Interest to Connaught Laboratories, Inc., Pasteur Merieux and Pasteur Merieux Connaught, (3) SmithKline Beecham Corporation d/b/a GlaxoSmithKline (incorrectly named as GlaxoSmithKline, Individually and as Successor in Interest to SmithKline Beecham Corp.), (4) Merck Co., Inc., (5) Baxter Healthcare, Inc. (Incorrectly named as Baxter International, Inc.) Individually and as Successor in Interest to North American Vaccine, Inc., (6) The Dow Chemical Company, (7) Eli Lilly and Company, (8) Sigma-Aldrich, Inc. (incorrectly named as Sigma-Aldrich), (9) Oribi, Inc., Individually and d/b/a Meridian Chemical Equipment, Inc. And d/b/a Global Fine Chemicals and d/b/a National Association of Compounding Pharmacists, and (10) Jerry K. Johnson, M.D. Excluding Oribi and Dr. Johnson, no other Defendant is a citizen of the state of Texas.
Defendant Eli Lilly then removed the case to this Court on December 1, 2003, pursuant to 28 U.S.C. § 1332 and improper joinder. Thereafter, with the exception of Oribi, all Defendants filed motions to dismiss, alleging that Plaintiffs failed to first exhaust the mandatory procedures set forth in the National Childhood Vaccine Injury Compensation Act ("Vaccine Act"). 42 U.S.C., Sections 300aa- 1 et seq. After Plaintiffs filed their Motion to Remand, asserting lack of subject matter jurisdiction, Vaccine Defendants filed an opposing motion alleging federal jurisdiction was in fact proper. As this Court noted that it could not rule on a motion to dismiss without subject matter jurisdiction, see Heaton v. Monogram Credit Card Bank of Ga., 231 F.3d 994, 1000 (5th Cir. 2000) (finding a lack of subject matter jurisdiction to preclude a dismissal of the case); cf. Boudlache v. Conoco Oil Corp., 615 F.3d 687, 689 (5th Cir. 1989) (finding it improper to grant summary judgment without subject matter jurisdiction), the Court first considered Plaintiffs' Motion to Remand, and having found such action proper, remanded the case to the 44th Judicial District Court, Dallas County, Texas ("Order Granting Remand") on September 30, 2004. On that same day, the Clerk mailed a certified copy of the Order Granting Remand to the case to the state court. Defendants now argue that the Court should reconsider its Order Granting Remand because, according to Defendants, the Court erroneously determined that it lacked subject-matter jurisdiction.
It is undisputed that Plaintiffs have not yet exhausted their administrative remedies under the Vaccine Act.
See Vaccine Defs.' Reply Brief in Support of their Rule 9(b), 12(b), and 12(c) Motion to Dismiss, or Alternatively, to Stay These Proceedings, filed January 12, 2004.
The Court granted Plaintiffs' Motion to Remand in light of the improper joinder standard advanced by the Fifth Circuit in Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004) (en banc) ( Smallwood III). Therein, the decision mandated that "[w]hen the only proffered justification for improper joinder is that there is no reasonable basis for predicting recovery against the in-state defendant, and that showing is equally dispositive of all defendants rather than to the in-state defendants alone, the requisite showing has not been made." Id. at 575. Applying that "common defense" rule to the facts of the case, this Court found "remand to the state court necessary" as "Defendants' argument of dismissal" went "to the merits of the case, rather than the issue of improper joinder." Tenbrook v. American Home Products, 2004 WL 2208480 at *4 (N.D. Tex. Sep. 30, 2004). The gravamen of Defendants' Motion to Reconsider is that the common defense rule does not apply to the case sub judice in light of Moss v. Merck Co., 381 F.3d 501, 504 (5th Cir. Aug. 16, 2004).
II. Reconsidering Remand
Notwithstanding the validity of Defendants' Motion to Reconsider, a remand for lack of subject matter jurisdiction generally may not be reviewed. 28 U.S.C. § 1447(d) ("An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . ."); see also Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995) ("As long as a district court's remand is based on . . . lack of subject-matter jurisdiction . . . a court of appeals lacks jurisdiction to entertain an appeal of the remand order under § 1447(d)."). Additionally, when a federal district court decides to remand and so notifies the state court by mailing a certified copy of the remand order, the federal court is divested of jurisdiction. Arnold v. Garlock, 278 F.3d 426, 438 (5th Cir. 2001) (citing Browning v. Navarro, 743 F.2d 1069, 1078-79 (5th Cir. 1984)).
While the statute contains an exception pursuant to 28 U.S.C. § 1443, or civil rights cases, this case does not qualify for that exception.
Moreover, "even if the district court's determination of subject matter jurisdiction was erroneous, it remains immune from review." Rio De Janeiro of the Federated Republic of Brazil v. Phillip Morris, Inc., 239 F.3d 714, 716 (5th Cir. 2001) (citing Heaton v. Monogram Credit Card Bank of Georgia, 231 F.3d 994, 997 (5th Cir. 2000)); see also Browning, 743 F.2d at 1079 ("Even a federal court, persuaded that it has issued an erroneous remand order, cannot vacate the order once entered."). As the First Circuit mandated: "The action must not ricochet back and forth depending upon the most recent determination of a federal court . . . The district court has one shot, right or wrong." In re La Providencia Development Corp., 406 F.2d 251, 252-53 (1st Cir. 1969); Browning, 743 F.2d at 1079 (quoting same).
In sum, the strength or cogency of Defendants' argument is beside the point. This Court finds itself without jurisdiction to make that determination.
III. Conclusion
For the foregoing reasons, the court hereby DENIES Defendants' Motion to Reconsider, and this case is remanded to the 44th Judicial District Court, Dallas County, Texas.
It is so ordered.