Walgreens missed its window to remove a case against it to federal court and U.S. District Judge Gene Pratter of the Eastern District of Pennsylvania wasn’t persuaded that its second notice of removal would qualify for an exception to the 30-day removal deadline.
After its first bid for removal failed, Walgreens submitted a second notice for removal with an affidavit from one of the company’s corporate legal assistants in an effort to assert diversity jurisdiction — but it came well after the 30-day limit and the attachment of the affidavit doesn’t count as a paper that establishes for the first time that the case is removable, thereby refreshing the 30-day limit, Pratter said.
"Walgreens does not seek to remove this case based on grounds different than those presented in its first notice of removal," Pratter said in Johnson v. National Consolidation Services, explaining that case law in the Third Circuit generally doesn’t allow a second notice of removal unless it is made on different grounds than the first.
"Instead, Walgreens endeavors to bolster the same argument it made in its prior attempt at removal," she said.
In its initial notice of removal from the Philadelphia Court of Common Pleas, Walgreens said that the named defendant, Walgreens Distribution Center, isn’t a corporate entity but, rather, a facility located in Bethlehem, Pa., that is owned and operated by Walgreen Eastern Co. Inc., according to the opinion.
Russell Johnson, a delivery truck driver for a company that was hired by National Consolidation Services and Walgreens to make deliveries to Walgreens stores, sued the companies that used his services after the freight in one of the trucks he drove fell on him when he was making a delivery because it had been negligently loaded, according to the opinion.
Because Walgreens didn’t support its first notice of removal with an affidavit or other evidence to prove its assertion that the Walgreens Distribution Center that Johnson alleged was a corporate entity headquartered in Bethlehem is, in fact, just a facility owned by the larger Walgreens company, Pratter granted Johnson’s motion to remand.
In its second notice of removal, filed in September 2012, more than 120 days after it was served with the complaint, Walgreens included an affidavit from one of its corporate legal assistants stating that there exists no corporate entity called Walgreens Distribution Center. That would mean that there is no corporate entity located in Pennsylvania, which would create diversity jurisdiction.
However, Pratter said, the company plainly missed its 30-day deadline and there is no compelling reason for her to waive it.
"Neither malfeasance by Mr. Johnson nor an unforeseen circumstance prevented Walgreens from timely meeting its burden here," Pratter said. "Indeed, it is quite clear that Walgreens had the wherewithal to supply the requisite information and to do so efficiently and economically. Instead, Walgreens simply neglected to provide evidence in support of its bald assertion about the corporate status of Walgreens Distribution Center. To allow Walgreens a second bite at the apple would both ignore the plain language of § 1446(b)(1) and undermine its ‘goal [of ensuring] early resolution of the court system in which the case will be heard.’"
Beyond that, Pratter held, Walgreens also failed to make a case under 28 U.S.C. Section 1446(b)(3), which allows a defendant to file for removal within 30 days of finding some "other paper from which it may first be ascertained that the case is one which is … removable."
The company had argued that the legal assistant’s affidavit qualified as "other paper."
Pratter called the argument "rather disingenuous."
"The affidavit is a document ‘procured’ from Walgreens itself that purports to establish what Walgreens has claimed throughout this dispute: that Walgreens Distribution Center is not a Pennsylvania corporation," she said.
The company clearly had access to information about the citizenship of Walgreens Distribution Center when it was served with the complaint, Pratter said, holding that its argument for resetting the 30-day limit doesn’t pass muster.
Finally, Pratter noted that Third Circuit case law would likely foreclose Walgreens from filing its second notice, since it made no new argument.
"The court thus anticipates that the Third Circuit Court of Appeals would disallow Walgreens’ successive notice of removal," Pratter said.
Neither Brian Kent of Laffey, Bucci & Kent in Philadelphia, who represented Johnson, nor James L. Moore of Thomas, Thomas & Hafer in Philadelphia, who represented Walgreens, could be reached for comment.
(Copies of the seven-page opinion in Johnson v. National Consolidation Services, PICS No. 13-0438, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •