ORDER

MICHAEL J. DAVIS, Chief Judge.

The above-entitled matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Leo I. Brisbois, dated May 13, 2014. [Docket No. 76] Plaintiff filed objections to the Report and Recommendation. [Docket No. 79]

Pursuant to statute, the Court has conducted a de novo review upon the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the Court adopts the Report and Recommendation of United States Magistrate Judge Brisbois dated May 13, 2014.

Accordingly, based upon the files, records, and proceedings herein, IT IS HEREBY ORDERED:

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, United States Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Plaintiffs Motion to Remand to State Court. [Docket No. 53] (hereinafter, "Motion to Remand"). The Motion has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Referral [Docket No. 59]), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For reasons set forth below, the Court recommends that Plaintiffs Motion to Remand, [Docket No. 53], be DENIED.

I. BACKGROUND

The general background of this personal injury and product liability action was detailed in this Court's November 18, 2013, Order, [Docket No. 52], and need not be repeated at length here. However, the procedural background of this case is directly relevant to this Report and Recommendation, and therefore, the Court notes the following:

The consolidated "Paxil Pregnancy Cases" against GlaxoSmithKline LLC, formerly known as SmithKline Beecham Corporation d/b/a GlaxoSmithKline ("Defendant" or "GSK"), were initiated on or about March 5, 2007, in the Court of Common Pleas of Philadelphia County, Pennsylvania (the "Pennsylvania State Court"). (Notice of Removal, Ex. A [Docket No. 1], at 25-56). Subsequently, and pursuant to the established procedure for the Paxil Pregnancy Cases, Julie Guddeck, on behalf of her daughter Kaylea Guddeck ("Plaintiff"), filed a Short-Form Complaint on or about September 30, 2011, in the Pennsylvania State Court. (Id., Ex B. [Docket No. 1], at 57-71). Defendant timely removed to the Eastern District of Pennsylvania on October 24, 2011 (the "2011 removal"). (Id, at 7). However, the District Court1 found that Defendant was a citizen of Pennsylvania and, therefore, that removal was barred by the resident-defendant rule. Patton v. SmithKline Beecham Corp., 2011 U.S. Dist. LEXIS 143724 (E.D.Pa. Dec. 14, 2011). Following Judge Savage's order of remand, the case proceeded in the Pennsylvania State Court.

Subsequently, upon conflicting decisions in the U.S. District Court for the Eastern District of Pennsylvania regarding Defendant's citizenship, the issue was certified to the Third Circuit for interlocutory appeal. See Johnson v. SmithKline Beecham Corp., 853 F.Supp.2d 487, 491 (E.D.Pa. 2012). On June 7, 2013, the Third Circuit held that Defendant was a citizen of Delaware, not Pennsylvania. Lucier v. SmithKline Beecham Corp., 724 F.3d 337 (3d Cir.2013). In light of the Lucier decision, Defendant again removed this case to Federal Court on June 26, 2013 (the "2013 removal"), and on the same day Defendant also moved to transfer venue to the District of Minnesota. (Notice of Removal, [Docket No. 1], at 5; Mot. Transfer [Docket No. 2]). Plaintiff again moved to remand to the Pennsylvania State Court and opposed any change in venue. (Mot. Remand [Docket No. 4]; Pl.'s Resp. Mot. Transfer [Docket No. 9]). This time, however, the District Court2 on July 24, 2013, denied the motion to remand. Guddeck v. SmithKline Beecham Corp., 957 F.Supp.2d 622 (E.D.Pa.2013) (hereinafter, "Guddeck I").

Plaintiff did not move for reconsideration of Guddeck I within 14 days as provided by the Eastern District of Pennsylvania's Local Rule 7.1(g), and consequently, after the 14-day window to move for reconsideration had lapsed, the District Court granted Defendant's motion to transfer the case to the District of Minnesota. Guddeck v. SmithKline Beecham Corp., 2013 WL 4197085, 2013 U.S. Dist. LEXIS 115069 (E.D.Pa. Aug. 14, 2013) (hereinafter, "Guddeck II").

After the case was transferred to this District, Plaintiff moved for a temporary stay, [Docket No. 39], which this Court denied. (Order [Docket No. 52]). Meanwhile, this Court entered a Pretrial Scheduling Order, [Docket No. 48], and an Amended Pretrial Scheduling Order, [Docket No. 75], which now requires that remaining discovery be completed by August 23, 2014.

II. PLAINTIFF'S MOTION TO REMAND [Docket No. 53]

In her Motion, Plaintiff argues that because the 2013 removal occurred more than 1 year after the case was originally commenced, that removal was untimely under 28 U.S.C. 1446,3 and therefore, that the case must be remanded to the State Court in Pennsylvania. (See Docket No. 53). Additionally, Plaintiff argues that the 2013 removal was barred by 28 U.S.C. § 1447(d), which prohibits review of a remand order. (See Pl.'s Mem. [Docket No. 55], at 4, 9; Pl.'s Reply [Docket No. 63], at 1-8).

Because of the unusual manner in which this case and the present Motion to Remand, [Docket No. 53], arrive at this Court, it is important at the outset to identify those facts that are not in dispute. Plaintiff does not dispute that there is complete diversity among the parties; that the amount in controversy exceeds $75,000.00; and that, in light of Lucier, supra, the resident-defendant rule does not bar removal of the present case to the Federal courts. (Hr'g Tr. [Docket No. 71], at 7:25-9:21). In other words, if this was a new case filed in the Pennsylvania State Courts, Plaintiff concedes that it would be removable. Plaintiffs sole argument here is that the 2013 removal to the Eastern District of Pennsylvania was procedurally improper, both under 28 U.S.C. § 1446(b), which establishes time limits for removal, and under 28 U.S.C. § 1447(d), which prohibits review of an order of remand.

For the reasons set forth below, the Court does not agree, and it recommends that Plaintiffs Motion to Remand, [Docket No. 53], be DENIED.

A. Procedural Posture

Initially, this Court must more precisely determine the procedural posture in this Court of the present Motion.

Plaintiff argues that the 1-year window for removal under 28 U.S.C. § 1446(b) is a subject matter jurisdiction rule, and therefore, that this Court must consider de novo the timeliness of the 2013 removal as part of the Court's continuing obligation to evaluate whether it has subject matter jurisdiction. Plaintiff further contends that this Court must reconsider de novo the timeliness of the 2013 removal pursuant to Eighth Circuit precedent without giving any deference to the Eastern District of Pennsylvania's decision in Guddeck I.4

This Court is not persuaded.

First, Plaintiff concedes that there is nothing in the plain language of 28 U.S.C. § 1446(b) to suggest that it is a jurisdictional, rather than a procedural, statute. (Hr'g Tr. [Docket No. 71], at 34:22-35-5). In fact, the title of § 1446, "Procedure for removal of civil actions" (emphasis added), strongly suggests that it is a procedural statute and not a jurisdictional one. Additionally, both parties acknowledge that the Eighth Circuit has not expressly addressed the issue of whether § 1446 is jurisdictional or procedural in nature.

However, in a case arising out of this District, the Eighth Circuit has impliedly come down on the procedural side. In the case of In re Burns & Wilcox, Ltd., 54 F.3d 475 (8th Cir.1995),5 a restaurant owner (the "plaintiff") sued her insurance agent (the "defendant") in Minnesota state court after a fire damaged her restaurant and the insurer failed to pay on her policy. 54 F.3d at 475-76. The defendant, in turn, made a third-party claim against the insurance company's general agent (the "third-party defendant"). Id. at 476. Shortly before trial, the plaintiff settled with the defendant and took an assignment of his claim against the third-party defendant. Id. However, the dismissal of the defendant created complete diversity among the remaining parties, and consequently, the third-party defendant removed to federal court, despite the fact that almost two years had passed since the case was initiated. Id. The plaintiff moved to remand, and the District Court granted the motion on the grounds that it should "abstain from exercising jurisdiction ... [because] the state court was intimately familiar with the facts of the case and had issued many rulings." Id. (internal quotation omitted). The third-party defendant subsequently filed a petition for a writ of mandamus seeking relief from the District Court's order, and the Eighth Circuit, upon finding that the District Court was wrong to grant the remand, granted the writ and ordered the District Court to vacate its remand order and exercise diversity jurisdiction over the case. Id. at 475-76, 478. In so doing, the Eighth Circuit noted:

Id. at 476 n. 4 (internal citations omitted).

The foregoing passage is instructive for many reasons. First, the Eighth Circuit expressly recognized that the 1-year limitation in 28 U.S.C. § 1446(b) was implicated, and even went so far as to strongly suggest that if the plaintiff had sought remand on that basis she would have succeed. Nonetheless, the Eighth Circuit did not conclude that § 1446(b) provided jurisdictional grounds to affirm the District Court's remand order. Instead, the Eighth Circuit held that the plaintiff had waived any § 1446(b) argument by failing to raise it — which also impliedly suggests that the statute is not jurisdictional, as "[q]uestions of subject-matter jurisdiction, of course, may be raised at any time and may not be waived. A court, including an appellate court, may raise the issue sua sponte and, indeed, the court has the duty to do so if the record suggests jurisdiction is lacking." Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990) (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982)).

It is axiomatic, then, that if the Eighth Circuit in its Burns & Wilcox decision expressly recognized that the 1-year limitation in § 1446(b) was implicated, but it did not apply it finding instead that it had been waived by the plaintiff in that case, then the Eighth Circuit must not have considered the 1-year limitation in § 1446(b) to be a jurisdictional statute. Finally, if any further evidence that the Eighth Circuit considered § 1446(b) to be procedural in nature is necessary, the Eighth Circuit in Burns & Wilcox described the third-party defendant's failure to comply with the 1-year limitation as being merely a "defect in removal procedure." 54 F.3d at 476 n. 4 (emphasis added).

Even if this Court was to ignore the clear implication of Burns & Wilcox, there is other compelling evidence that the Eighth Circuit would find the 1-year limitation in 28 U.S.C. § 1446(b) to be procedural and not jurisdictional. Among the best indicators is that the Eighth Circuit has repeatedly held that the 30-day deadline to remove cases that are initially removable, which also appears in § 1446(b), is merely procedural. See, e.g., Koehnen v. Herald Fire Ins. Co., 89 F.3d 525, 528 (8th Cir.1996) (discussing 30-day deadline in § 1446(b): "A procedural defect in removal, such as untimeliness, does not affect the federal court's subject matter jurisdiction and therefore may be waived."); Fin. Timing Pubs., Inc. v. Compugraphic Corp., 893 F.2d 936, 940 (8th Cir.1990) (finding that although the plaintiff properly raised the issue of the defendant's untimely removal, "the plaintiff's prior actions constituted a waiver of this procedural defect").

As the Sixth Circuit has also observed:

Music v. Arrowood Indem. Co., 632 F.3d 284, 287-88 (6th Cir.2011) (quoting Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 616 (3d Cir.2003)). In Music, the Sixth Circuit also found that "[e]very circuit court to address the issue has held that the one-year limitation on removal of diversity cases is a procedural requirement," Music, 632 F.3d at 287 (citing Ariel Land Owners, 351 F.3d at 616; In re Uniroyal Goodrich Tire Co., 104 F.3d 322, 324 (11th Cir.1997); Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992)); and furthermore, that "the Supreme Court has intimated that the one-year limitation on removal is procedural." Music, 632 F.3d at 287 (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 75 n. 13, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996)).

Against the extraordinary weight of the foregoing authority, Plaintiff cites just two Eighth Circuit cases, neither of which is on point. First, Plaintiff cites Lindsey v. Dillard's, Inc., 306 F.3d 596 (8th Cir.2002). However, while the Eighth Circuit in Lindsey did cite the defendant's failure to meet either the 30-day deadline or the 1-year deadline contained in 28 U.S.C. § 1446(b) as grounds for affirming the District Court's remand order, the opinion contains no language whatsoever even suggesting, much less holding, that either of those deadlines is jurisdictional. Additionally, Plaintiff cites Horton v. Conklin, 431 F.3d 602 (8th Cir.2005), in which the Eighth Circuit held that a violation of the resident-defendant rule, also known as the forum defendant rule, "is a jurisdictional defect and `not a mere procedural irregularity capable of being waived.'" Id. at 605 (quoting Hurt v. Dow Chem. Co., 963 F.2d 1142, 1146 (8th Cir.1992)). However, in light of the Third Circuit's holding in Lucier, supra, Plaintiff does not argue that the 2013 removal was improper because of the resident-defendant rule, but rather, that the 2013 removal was time-barred by 28 U.S.C. § 1446(b). Horton does not even mention the deadlines contained within 28 U.S.C. § 1446(b), much less address whether those deadlines are jurisdictional or procedural. Thus, neither Lindsey nor Horton supports Plaintiffs assertion that the 1-year limitation in 28 U.S.C. § 1446(b) is jurisdictional, and not merely procedural.

Plaintiff also cites four unpublished cases out of the U.S. District Court for the Eastern District of Missouri, each holding that the 1-year limitation in § 1446(b) is jurisdictional. Wright-Basch v. Wyeth, 2012 WL 2885832, at *5-6, 2012 U.S. Dist. LEXIS 97459, at *17 (E.D.Mo. July 13, 2012) (remanding for "lack of subject matter jurisdiction," citing the defendant's failure to remove within one year of the commencement of the case); Calma v. Wyeth, 2012 WL 1971145, at *3, 2012 U.S. Dist. LEXIS 76300, at *11 (E.D.Mo. June 1, 2012) ("the one-year time limitation [in § 1446(b)] is absolute and jurisdictional"); Advanta Tech. Ltd. v. BP Nutrition, Inc., 2008 WL 4619700, at *4, 2008 U.S. Dist. LEXIS 82246, at *10 (E.D.Mo. Oct. 16, 2008) ("the Court now finds that 28 U.S.C. § 1446(b) establishes a jurisdictional requirement"); Bancservices Group, Inc. v. Am. Nat'l Bank, 2008 WL 585112, at *1, 2008 U.S. Dist. LEXIS 15734, at *3, *5 (E.D.Mo. Feb. 29, 2008) (describing the 1-year limitation in § 1446(b) as "absolute," and concluding that "I cannot assert jurisdiction where Congress has not provided it").6 However, this Court is not persuaded by these decisions, as none of them considers Eighth Circuit's discussion of the 1-year limitation in § 1446(b) contained in Burns & Wilcox, supra, nor do they consider the Eighth Circuit's treatment of § 1446(b)'s 30-day deadline as procedural in Kohnen and Financial Timing Publications, supra.

In light of (1) the strong indications from the Eighth Circuit that it would and does consider the 1-year limitation in 28 U.S.C. § 1446(b) to be procedural; (2) the U.S. Supreme Court's intimation that it, too, considers § 1446(b) to be procedural; and (3) the fact that every U.S. Circuit Court to consider the question thus far has found § 1446(b) to be procedural, this Court agrees with the overwhelming weight of authority and finds that the 1-year limitation in § 1446(b) is not an absolute, jurisdictional bar. Therefore, the question of whether the Eastern District of Pennsylvania, in Guddeck I, correctly held that the 2013 removal did not run afoul of the 1-year limitation in § 1446(b) is not a jurisdictional question that this Court must consider de novo. Accordingly, the question for this Court is simply whether the Eastern District of Pennsylvania clearly erred by denying the Plaintiffs motion to remand that was at issue in Guddeck I.7

B. Standard of Review

Although the law of the case doctrine is not precisely applicable to the present Motion,8 nonetheless, "considerations of comity and judicial economy weigh against disturbing [a transferor] court's rulings." Fenner v. Wyeth, 912 F.Supp.2d 795, 800 (E.D.Mo.2012). "Ordinarily a transferee court will not overturn decisions of a transferor court in the absence of proper circumstances." Brown v. Overhead Door Corp., 843 F.Supp. 482, 484 (W.D.Ark.1994). A court should "reconsider issues previously decided during the course of litigation only upon a showing that a prior decision is `clearly erroneous and works manifest injustice.'" Thorne v. Wyeth, No. 06-3123 (DSD/JJG), 2007 WL 2122158, at *2, 2007 U.S. Dist. LEXIS 52500, at *13 (D.Minn. July 19, 2007) (Doty, J.) (quoting Little Earth of the United Tribes, Inc. v. United States Dep't of Housing & Urban Dev., 807 F.2d 1433, 1440-41 (8th Cir.1986)) (emphasis added).

C. Discussion

Initially, this Court observes that Plaintiff makes no argument whatsoever that Judge Bartle's decision in Guddeck I results in a "manifest injustice," but rather, she argues only that Judge Bartle's decision in Guddeck I, supra, denying her motion to remand to the State Court was clearly erroneous.

This Court could deny Plaintiff's motion solely on the basis of Plaintiff's failure to argue, much less demonstrate, manifest injustice, because the transferor court's decision should not be reversed except upon a showing both that it was clearly erroneous and that it works manifest injustice. Thorne, 2007 WL 2122158, at *2, 2007 U.S. Dist. LEXIS 52500, at *13 (quoting Little Earth of the United Tribes, 807 F.2d at 1440-41). However, in the interest of completeness, the Court will address the question of whether Judge Bartle's decision in Guddeck I was clearly erroneous.

1. Plaintiffs failure to seek reconsideration of Judge Bartle's decision in Guddeck I implicitly suggests that even Plaintiff did not believe his decision to be clear error.

As set forth in Part I, supra, the Third Circuit held on June 7, 2013, that Defendant was a citizen of Delaware, not Pennsylvania, Lucier, 724 F.3d at 360. Subsequently, Defendant sought to remove the case to the Eastern District of Pennsylvania, (Notice of Removal, [Docket No. 1], at 5), and it also moved for transfer to this District, (Mot. Transfer [Docket No. 2]). Plaintiff timely moved to remand, (Mot. Remand [Docket No. 4]), and objected to any transfer (Pl.'s Resp. Mot. Transfer [Docket No. 9]). Subsequently, on July 24, 2014, Judge Bartle handed down his Memorandum and Order in Guddeck I, denying Plaintiffs motion to remand. See Guddeck I, 957 F.Supp.2d 622. However, Judge Bartle did not immediately rule on the Motion to Transfer, but instead, waited 21 days, granting the motion to transfer on August 14, 2013. See Guddeck II, 2013 WL 4197085, 2013 U.S. Dist. LEXIS 115069 (E.D.Pa. Aug. 14, 2013).

That 21-day gap is important, because during that period Plaintiff's window for seeking reconsideration from Judge Bartle on his denial of Plaintiffs motion to remand lapsed. The Local Rules of Civil Procedure for the Eastern District of Pennsylvania provide that "[m]otions for reconsideration or reargument shall be served and filed within fourteen (14) days after the entry of the judgment, order, or decree concerned." E.D. Pa. L.R. 7.1(g). Although the Third Circuit has described the scope of a motion for reconsideration as "extremely limited," one recognized basis for granting such a motion is "the need to correct a clear error of law." Blystone v. Horn, 664 F.3d 397, 415 (3d Cir.2011) (internal quotation omitted). Thus, if Plaintiff believed that the denial of her motion to remand was a clear error of law, then she could (and should) have asked Judge Bartle to reconsider his Memorandum and Order in Guddeck I any time up to and including August 7, 2014.9 She did not seek reconsideration from Judge Bartle; she did not seek relief from Judge Bartle's decision in the Third Circuit (as she did in two other related cases Cintao v. SmithKline Beecham Corp. and Nieman v. SmithKline Beecham Corp. (see infra, Part II.C.2)); and moreover, upon the transfer of her case to this District on September 13, 2013, she did not immediately make her motion to remand to the Pennsylvania State Court, but instead first moved this Court for a stay pending the outcomes of their Cintao and Nieman appeals (which the Third Circuit denied (see Order [Docket No. 52], at 4)). Although it is not dispositive, the fact that Plaintiff waited until January 22, 2014, to make her present Motion, when she had ample prior opportunities in multiple courts to seek relief earlier, is a strong circumstantial indication that even Plaintiff herself did not believe that Judge Bartle's decision denying her motion to remand in Guddeck I was clearly erroneous.

2. Among the judges of the Eastern District of Pennsylvania who have considered remand motions pursuant to 2013 removals in the Paxil Pregnancy Cases, Judge Bartle is in the majority in finding the 2013 removals to be proper and in denying the plaintiffs' subsequent remand motions, strongly suggesting that his decision in Guddeck I was not clearly erroneous.

In arguing that Judge Bartle's Memorandum and Order denying her motion to remand in Guddeck I was clearly erroneous, Plaintiff urges this Court to consider two subsequent and contrary decisions by other judges in the Eastern District of Pennsylvania. In fact, it appears that Paxil Pregnancy Plaintiffs and Defendant have made substantially the same motions and arguments in at least nine cases, six of which, including the present case, were decided on the merits.10

The other five cases in which the motion to remand was decided on the merits in the Eastern District of Pennsylvania are:

In sum, of the five district judges (hearing six different cases) who considered the merits of the remand issue, three judges — Judge Bartle (in Guddeck), Judge McLaughlin (in A.S.), and Judge Buckwalter (in Cintao and Nieman) — determined that Defendant's 2013 removal following Lucier, supra, was proper, and therefore, they denied the plaintiffs' subsequent motions to remand; while two judges — Judge Padova (in Cammarota) and Judge Baylson (in Powell) — determined that Defendant's 2013 removal was improper, and therefore, they granted the plaintiffs' motions to remand.

Plaintiff urges this Court to follow the reasoning of Judges Padova and Baylson, in Cammarota and Powell, respectively. However, as set forth in Part II. B, supra, the question for this Court is not whether one rationale or another is more persuasive; but rather, because of the deference owed to the transferor court, the question is whether Judge Bartle's decision in Guddeck I was clearly erroneous.

The very fact that five judges in the Eastern District of Pennsylvania have divided 3-to-2 on this question is strong evidence that neither position is clearly erroneous; the fact that Judge Bartle is in the majority, and that his reasoning has been expressly adopted by two other judges, is even stronger evidence that his decision to deny Plaintiff's motion to remand in Guddeck I was not clearly erroneous. See in accord, In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 305-06 (6th Cir.1984) (where a "theory has been endorsed by several courts," a district court was "not clearly erroneous as a matter of law" in utilizing that theory).

Therefore, this Court need not even reach the merits of Judge Bartle's decision. However, in the interest of completeness, this Court will consider Judge Bartle's decision on the merits, and for the reasons in the next section, it finds that his decision denying Plaintiff's motion to remand in Guddeck I was not clearly erroneous.

3. Judge Bartle's decision to deny Plaintiff's motion to remand in Guddeck I was not clearly erroneous.

As she again does here before this Court, Plaintiff offered Judge Bartle two rationales for remand: first, that the 2013 removal constituted an improper review of a remand order, and therefore, was barred by the 1-year time limitation in 28 U.S.C. § 1447(d); and second, that the 2013 removal was barred as untimely by 28 U.S.C. § 1446(b). Judge Bartle rejected both arguments, relying heavily on the Third Circuit's opinion in Doe v. American Red Cross, 14 F.3d 196 (3d Cir.1993) (hereinafter "Doe"), and noting that "the parallels to Doe in the present case are striking." Guddeck I, 957 F.Supp.2d at 625.12

This Court finds that Judge Bartle's decision not to remand in Guddeck I was not clearly erroneous, either with regard to 28 U.S.C. § 1447(d), or with regard to 28 U.S.C. § 1446(b).

a. 28 U.S.C. § 1447(d)

In order to determine whether Judge Bartle's finding that, pursuant to Doe, the 2013 removal was not barred by 28 U.S.C. § 1447(d), the Court first looks to the Doe opinion, itself. In Doe, the Third Circuit identified three independent reasons for holding that the defendant's second removal was not barred by 28 U.S.C. § 1447(d), the first being that:

Doe, 14 F.3d at 200. Additionally, the Doe court offered as a second independent reason that, pursuant to S.G., the defendant's second removal was not an appeal or review of the previous removal, but rather, was a new removal based upon the holding in S.G.:

Id. (internal citation, quotation, and alteration omitted).

Citing to both of these foregoing passages, Judge Bartle concluded that, in accordance with Doe, Defendant's second removal in the present case made pursuant to the Third Circuit's decision in Lucier, supra, was not barred by 28 U.S.C. § 1447(d).

Upon review of Doe and of the record in the present case, this Court finds the two to be sufficiently similar such that Judge Bartle was not clearly erroneous in holding that, pursuant to Doe, Defendant's 2013 removal was not barred by 28 U.S.C. § 1447(d). Plaintiff seeks to distinguish Doe on the grounds that the Doe court was controlled by specific language from S.G. that expressly applied that decision to any cases that the Red Cross was presently defending — which necessarily would have included Doe — noting that no such language appears in the Third Circuit's Lucier decision. (Pl.'s Reply [Docket No. 63], at 7-8). However, the Doe court did not rely only on the type of specific language that appeared in S.G., but rather, it described such an express authorization to initiate a second removal as "[a] third independent reason" to find that removal was not barred by 28 U.S.C. § 1447(d). Doe, 14 F.3d at 200 (emphasis added). Thus, under the plain language of Doe, the Third Circuit did not hold that the type of specific language authorizing removal that appeared in S.G. was a condition precedent to a second removal, but rather, it held that such language merely provided an alternative rationale in support of the second removal.

In the present case, this Court finds that Judge Bartle's reliance on the first two rationales offered up by the Doe court was not clearly erroneous. Doe established as a matter of Third Circuit law, which was binding on Judge Bartle, that 28 U.S.C. § 1447(d) does not act as a complete and absolute bar on the subsequent removal of a case that was previously remanded for lack of subject matter jurisdiction. Doe, 14 F.3d at 200. Judge Bartle was not clearly erroneous where, in Guddeck I, 957 F.Supp.2d at 624, he relied upon Doe in rejecting "the argument that a lawsuit once remanded can never again be removed." Additionally, Doe established as a matter of Third Circuit law that where a case has been remanded to a state court and a subsequent court order demonstrates that the basis underlying the earlier remand had been erroneous, that subsequent court order may serve as the basis for a second removal. Doe, 14 F.3d at 200. Given the factual similarities between Doe and the present case, Judge Bartle was not clearly erroneous where, in Guddeck I, 957 F.Supp.2d at 624, he relied upon Doe in holding that Lucier constituted just such an order.

With regard to 28 U.S.C. § 1447(d), this Court finds that Judge Bartle was not clearly erroneous in his holding in Guddeck I that Defendant's 2013 removal was not barred by § 1447(d).

b. 28 U.S.C. § 1446(b)

Again, this Court begins with Doe, which was binding upon Judge Bartle, and in particular, with the Doe court's determination that the Supreme Court's opinion in S.G. constituted an "order" upon which the Doe defendant could initiate a second removal after the case had been previously remanded.13 The Doe court held the Supreme Court's opinion in S.G. constituted an "order ... from which it may first be ascertained that the case is one which is... removable" for purposes of 28 U.S.C. § 1446(b). Doe, 14 F.3d at 201-02. The Doe court also strictly limited what would constitute such an order:

Id. at 202-03 (emphasis added).

In Guddeck I, supra, Judge Bartle cited the aforementioned language from Doe and applied that standard to the present case:

Guddeck I, 957 F.Supp.2d at 625-26. Judge Bartle then found that Defendant's initial 2011 removal had been proper, and that "the District Court's incorrect ruling and remand of this action is a nullity and cannot continue to stand now that the Court of Appeals has spoken that the removal was and is proper." Id. at 626. Next, Judge Bartle found that by its 2013 removal Defendant was "simply effectuating what was a timely and proper first removal." Id. Finally, Judge Bartle concluded that the 1-year limitation in 28 U.S.C. § 1446(b) applied only where "the case stated by the initial pleading is not removable," and therefore, it did not apply in the present case because — but for the initial error of the district court in holding that Defendant was a citizen of Pennsylvania — the case as initially pled was removable. Id. "Although the action had been pending for more than one year before [Lucier] was decided and the second notice of removal was filed, the second paragraph of § 1446(b) with its time limitation is not relevant because the action was initially removable as [Lucier] has made clear." Id. (citing Brown v. Tokio Marine and Fire Ins. Co., 284 F.3d 871 (8th Cir. 2002)).

Plaintiff argues that Judge Bartle, in Guddeck I, failed to draw a distinction between a removal pursuant to the first paragraph of 28 U.S.C. § 1446(b), which Plaintiff argues covers removals pursuant to the pleadings themselves, and the second paragraph of § 1446(b), which Plaintiff argues covers subsequent removals, including those pursuant to a court order. This Court is not persuaded. Instead, applying Doe, Judge Bartle held that the second paragraph of 28 U.S.C. § 1446(b) was not applicable, because — despite the district court's initial holding to the contrary — this case was initially removable; and furthermore, that because the case was initially removable, that the 2013 removal "simply effectuat[ed] what was a timely and proper first removal." Guddeck I, 957 F.Supp.2d at 626. This Court finds that this was not a clearly erroneous application of Doe to the present case.

Because this Court finds that Judge Bartle's decision denying Plaintiff's motion to remand in Guddeck I was not clearly erroneous, either with regard to 28 U.S.C. § 1447(d) or with regard to 28 U.S.C. § 1446(b), and because the Plaintiff has entirely failed to argue, much less show, that Judge Bartle's decision denying Plaintiff's motion to remand in Guddeck I worked a manifest injustice, the Court recommends that Plaintiff's present Motion to Remand, [Docket No. 53], be DENIED.

III. CONCLUSION

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that Plaintiff's Motion to Remand to [Pennsylvania] State Court, [Docket No. 53], be DENIED.

Filed: May 13, 2014.