cannot be implicated in any tortious conduct. But the Texas Petition charges that Elsag defendants' "post-auction proposal of April 8, 1994, and subsequent conduct constituted a knowing and wrongful inducement" for Fischer & Porter to breach its contractual obligations with Moorco. Tex. Pet. P 53. Moreover, each of the tortious interference counts repeats and realleges all prior paragraphs of the Texas Petition as bases for the asserted violation. Id. PP 51, 55. Thus, a fair reading of the Texas Petition requires me to conclude that the alleged acts of Elsag Delaware quoted above are embraced by Moorco's tortious interference claims.
3. Moorco's Alleged "Forum Shopping" Motive
Finally, Elsag defendants argue that fraudulent joinder is established here by Moorco's litigation tactics, which smack of impermissible forum shopping. They characterize Moorco's commencement of this suit in Texas state court and its current attempt at remand as the latest move in a transparent "Texas or bust" campaign. But Moorco's intent in suing originally in Texas state court or in seeking remand there is irrelevant to the present fraudulent joinder analysis. See Abels, 770 F.2d at 32 ("The fact that the plaintiffs' motive for joining a Doe defendant is to defeat diversity is not considered indicative of fraudulent joinder.") (citing Goldberg v. CPC Int'l, 495 F. Supp. 233, 239 (N.D. Cal. 1980)). Moreover, there is nothing improper about formulating and executing an effective litigation strategy, including selecting the most favorable forum for the client's case. Thus, Elsag Delaware's joinder cannot be deemed fraudulent because Moorco finds it advantageous to pursue these tort and contract claims in Texas state court.
* * * *
In sum, Moorco's tortious interference claims against Elsag Delaware are not "wholly insubstantial and frivolous" under Texas law. Accordingly, Elsag Delaware cannot be disregarded as a fraudulently joined party. Because diversity of citizenship is thus absent as a basis for removal jurisdiction, I will remand this case back to the District Court of Harris County, Texas, pursuant to 28 U.S.C. § 1447(c).
I emphasize the limited nature of my holding. I do not rule that the Texas state court must find that Moorco's allegations are sufficient to state a claim against Elsag Delaware for tortious interference, or that the Texas state court must apply the substantive law of Texas to these claims. Rather, I rule only that the Texas state court must be the tribunal to undertake both the choice of law and the underlying merits determinations.
B. Request for Costs
Moorco also requests that its costs and attorney's fees incurred on this motion be imposed on Elsag defendants under § 1447(c), which states simply, "An order remanding the case may require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal." 28 U.S.C. § 1447(c). Imposition of costs pursuant to this provision is within the sound discretion of the court. See Scheidell v. State Farm Fire & Casualty Co., 1991 U.S. Dist. LEXIS 6922, No. 91 Civ. 2695, 1991 WL 87042, at *1 (E.D. Pa. May 21, 1991). Courts generally award costs under § 1447(c) where the lack of removal jurisdiction is obvious or where a defendant has not acted in good faith in removing the case. Id. (citations omitted). For example, if "minimal research" into a fundamental question would have revealed that removal was improper, costs may be awarded. Little League Baseball, Inc. v. Welsh Publishing Group, Inc., 874 F. Supp. 648, 1995 WL 46655, at *8-*9 (M.D. Pa. Feb. 1, 1995) (observing that "minimal research" would have revealed that plaintiff was a federally chartered corporation with nationwide activities and thus not subject to diversity jurisdiction). By contrast, if there is no clear precedent on the dispositive issue, a good faith attempt to remove does not warrant the sanction of costs. See Foster v. Chesapeake Ins. Co., 1991 U.S. Dist. LEXIS 15368, No. 89 Civ. 7468, 1991 WL 224568, at *1 (E.D. Pa. Oct. 24, 1991).
Here, Elsag defendants have briefed the fraudulent joinder issue extensively and with commendable professionalism. While ultimately unavailing, their argument as to the insufficiency of Moorco's tortious interference allegations against Elsag Delaware was spirited, well-researched, and effectively presented. Moreover, their fundamental premise that Pennsylvania law controlled the jurisdictional inquiry, though erroneous, cannot be characterized as frivolous given that the underlying merger agreement is governed by Pennsylvania law. Cf. Miyano Mach. USA, Inc. v. Zonar, 1994 U.S. Dist. LEXIS 6772, No. 92 Civ. 2385, 1994 WL 233649, at *2 (N.D. Ill. May 23, 1994) (observing that some courts apply contractual choice of law provision to tort claims "closely related to the parties' contractual relationship") (internal quotations and citations omitted). On the whole, I cannot say that the case for remand here is so compelling that the mere attempt to argue the contrary rises to the level of bad faith. Given the high quality of advocacy that has marked this motion and indeed this entire litigation, I find that imposition of costs against Elsag defendants is not appropriate under 28 U.S.C. § 1447(c).
Moorco's tortious interference allegations against Elsag Delaware are not so "wholly insubstantial and frivolous" as to permit me to disregard the latter as fraudulently joined to this action. The substantive law of Texas governs the jurisdictional inquiry into the merits of these allegations, and, under that state's law, Moorco's claims survive the deferential examination applied on a motion to remand. Because Elsag Delaware must remain a party to this action, diversity jurisdiction is lacking as a basis for removal. Accordingly, I will remand Civil Action No. 95-092 to the District Court of Harris County, Texas, pursuant to 28 U.S.C. § 1447(c). Furthermore, because Elsag defendants' attempt to remove this case was not in bad faith or obviously without basis, I will deny Moorco's request for costs under that statutory provision. An appropriate order follows.
Anita B. Brody, J.
AND NOW, this 10th day of April, 1995, for the reasons set forth in the accompanying Memorandum of this date, IT IS HEREBY ORDERED that the motion of Moorco International, Inc. ("Moorco"), to remand this case to the District Court of Harris County, Texas, is GRANTED and that, pursuant to 28 U.S.C. § 1447(c), Civil Action No. 95-092 is REMANDED to the District Court of Harris County, Texas. The Clerk of Court is directed to close this docket number for statistical purposes. IT IS FURTHER ORDERED that Moorco's request for costs incurred on this motion to remand is DENIED.
Anita B. Brody, J.