We blogged before about the Third Circuit resolving a long-running dispute over the citizenship of GSK in favor of Delaware, thereby affirming that suits filed against GSK were, in fact, diverse and properly removed to federal court. We then blogged about a Pennslyvania federal district court rejecting the plaintiffs' attempt to leverage the prior district court error on this point, and allowing a second removal after the Third Circuit's decision. Other courts, however, reached the opposite result, allowing the very plaintiffs who lured federal district courts into error to keep cases in state court, simply because it took time to get to the Third Circuit and have the error confirmed. Today we report that this latter issue may be headed back to the Third Circuit yet again.
Yesterday, the court in A.S. v. Smithkline Beecham Corp., 2013 U.S. Dist. Lexis 173975 (M.D. Pa. Dec. 12, 2013), certified for interlocutory appeal whether a defendant victimized by earlier (confirmed on appeal) error on a question of diversity of citizenship is entitled to remove the now indisputably diverse case after the appellate reversal. The Third Circuit still has to decide to accept the appeal, but if it does, we'll find out whether removal technicalities prevent federal district courts from correcting error and must allow delay caused by that error to keep cases that should have been removable out of federal court.
More than letting you know of this development, we can't comment, due to the RS side of the blog having involvement in the litigation.