Opinion
Civil Action No. 06-cv-1706.
June 26, 2006
ORDER
AND NOW, this 26th ___day of June, 2006, the Motion to Remand by Plaintiff (Doc. #3) is GRANTED. It is ORDERED that this matter is REMANDED to the Bucks County Court of Common Pleas.
Plaintiff, a Pennsylvania resident, moves to remand the case to state court on the ground that defendants Stanford Douglas and A-Plus Investigations, Inc. are both residents of Pennsylvania, thus destroying diversity. Because Douglas's citizenship is dispositive of the issue, I need not reach the issues of A-Plus's citizenship or whether A-Plus was properly joined and served.
In opposing the remand, A-Plus argues that (1) Douglas was fraudulently joined to defeat diversity; (2) because plaintiff allegedly did not dispute A-Plus's claim of fraudulent joinder, she has therefore admitted to it; and (3) because Douglas was not served at the time of removal on April 24, 2006, his citizenship may not be taken into account for diversity purposes. For the following reasons, each of these arguments fails.
With respect to its first argument, A-Plus has not carried its heavy burden of persuasion in demonstrating that Douglas was fraudulently joined. In order to support an allegation of fraudulent joinder, the removing party must show that a plaintiff's claim against the resident defendant is "frivolous and wholly insubtantial." Batoff v. State Farm Ins. Co., 977 F.2d 848, 852 (3d Cir. 1992). The court, however, "may not find that the non-diverse parties were fraudulently joined based on its view of the merits of those claims or defenses," Boyer v. Snap-On Tools Corp., 913 F.2d 108, 113 (3d Cir. 1990), and "all doubts should be resolved in favor of remand," Batoff, 977 F.2d at 851. The motivation behind a joinder, even if it is a desire to defeat removal, is also irrelevant. Mount Olivet Tabernacle Church v. Emerson Elec. Co., 1997 WL 89118 at *4 (E.D. Pa. 1997). Plaintiff has brought a wrongful death action against Douglas, her husband's killer. The plain language of Pennsylvania's wrongful death statute, 42 Pa. Cons. Stat. Ann. § 8301, which allows suit against an individual who caused a death through a "wrongful act," provides more than a colorable ground of support for the claim. Accordingly, Plaintiff's claim was not frivolous or wholly insubstantial, and Douglas was not fraudulently joined.
Second, at the hearing, A-Plus strongly asserted that Plaintiff has admitted fraudulent joinder by not responding to Defendant's allegation in her filings. This is incorrect: an assertion of fraudulent joinder can destroy a district court's subject matter jurisdiction, and regardless of whether Plaintiff properly responds to it, the court must consider it. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); see also Selvaggi v. Prudential Prop. and Cas. Ins. Co., 871 F. Supp. 815, 818 (E.D. Pa. 1995). I must therefore make a ruling on fraudulent joinder, and I find that there is no fraudulent joinder.
Finally, because the citizenship of a resident defendant cannot be ignored even if he was served after removal, A-Plus's last argument is incorrect. While under the literal terms of 28 U.S.C. § 1441(b), a diversity action is removable when none of the "properly joined and served" defendants is a citizen of the state in which the action is brought, the Supreme Court has ruled that where a case involves post-removal service on a resident defendant, diversity is destroyed and the case cannot remain in federal court. Pullman Co. v. Jenkins, 305 U.S. 534, 541 (1939). The fact that Douglas was not served prior to removal is therefore irrelevant: he is a Pennsylvania resident, like Plaintiff, and therefore there is no diversity.
Because Douglas was not fraudulently joined and his citizenship must be taken into account, regardless of when he was served, there is no basis for federal diversity jurisdiction and the case is remanded to state court.