The opinion of the court was delivered by: ZIEGLER
Presently before the court is the question of whether a diversity action timely removed should be remanded to state court because the defendant has denied liability and averred that, if plaintiff is entitled to judgment, recovery must be had against non-diverse tortfeasors. We hold that a diversity action properly removed to a federal forum pursuant to 28 U.S.C. § 1441(a) can not be remanded to a state court pursuant to 28 U.S.C. § 1447(c) where the removal is neither improvident nor destructive of the original jurisdiction of the district court. The motion of plaintiff to remand will be denied.
Pennzoil filed a timely removal petition to this court on December 29, 1981, pursuant to 28 U.S.C. § 1441. On January 4, 1982, Pennzoil filed an answer in which it denied all liability to plaintiff and averred that the mishap may have been caused by the negligence of Ronald C. Davis or others. Because diversity of citizenship existed between Kaib and Pennzoil, and the controversy involved a sum in excess of $10,000, exclusive of interest and costs, and because the petition complied with the procedural niceties of 28 U.S.C. § 1446, the parties commenced discovery in this court.
On March 26, 1982, Kaib filed a "motion to join added parties defendant and to file a supplemental complaint" designating Pennzoil as the original defendant and P. L. Toy, Silver Fox Oil Company and National Fuel Gas Corporation as added defendants. The added defendants are non-diverse parties.
Counsel for these defendants then filed timely answers challenging the jurisdiction of this court and further asserted in motions to dismiss or remand that, because diversity was absent, the complaint against P. L. Toy, Silver Fox Oil Company and National Fuel Gas Corporation must be dismissed or remanded. Kaib responded with a motion to remand the entire action including Pennzoil to state court and Pennzoil entered the skirmish with a motion in opposition to remand along with a motion to strike the joinder of the added defendants.
While the procedural aspects of this case have become needlessly complicated, and while the issue may be one of first impression in this jurisdiction, there are established precepts that chart our course. The motion of Kaib to remand must be denied. The motion of Pennzoil to strike must be denied. The motions of P. L. Toy, Silver Fox Oil Company and National Fuel Gas Corporation to remand must be granted. And the diversity action of plaintiff against Pennzoil shall proceed in this court to judgment since the dispute involves diverse parties and the action was not improvidently removed.
II. The Motion of Plaintiff To Remand
Richard A. Kaib is a citizen of the Commonwealth of Pennsylvania. Pennzoil was incorporated in the state of Delaware and its principal place of business is the state of Texas. With these averments plaintiff has no quarrel and thus it is not disputed that diversity is complete and the statutory amount is in controversy. Congress has provided that under these circumstances an action may be removed to a federal forum under 28 U.S.C. § 1441(a) since this court has original jurisdiction between diverse parties pursuant to 28 U.S.C. § 1332. In the words of Congress, removal is appropriate where "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b).
Congress has also provided that following removal and prior to final judgment remand is required if "it appears the case was removed improvidently and without jurisdiction . . ." 28 U.S.C. § 1447(c). An improvident removal is one that is legally defective, such as failure to comply with the time requirements or other provisions of 28 U.S.C. § 1446. See Merrimack Mutual Fire Insur. Co., 587 F.2d 642, n.3 (5th Cir. 1978). Pennzoil has complied with all statutory prerequisites and plaintiff does not contend otherwise.
The other possible basis for remand turns on the question of this court's jurisdiction since the Supreme Court has stated that remand is authorized only in accordance with the express terms of 28 U.S.C. § 1447(c). Thermtron Products Inc. v. Hermansdorfer, 423 U.S. 336, 342-345, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976).
As we have noted diversity is complete between the original parties and thus jurisdiction is extant under 28 U.S.C. § 1332. The fact that plaintiff sought to add non-diverse parties following discovery does not diverse this court of original jurisdiction and compel remand, unless they are indispensable parties. Jurisdiction must be tested by the status of the parties at the commencement of the suit, Field v. Volkswagenwerk AG, 626 F.2d 293, 304 (3d Cir. 1980), and diversity was complete for jurisdictional purposes when Kaib filed suit in state court since no other non-diverse defendant was "properly joined and served" at that time.
Resolution of the question of whether P. L. Toy, Silver Fox Oil Company or National Fuel Gas Corporation are indispensable parties under Rule 19 of the Federal Rules of Civil Procedure turns on the substantive law of the forum and it is critical to resolution of plaintiff's motion to remand. If indispensable, this court would be unable to afford complete relief and, since such relief ...