The opinion of the court was delivered by: Dalzell, District Judge.
The plaintiff here brings allegations of negligence and
products liability against a manufacturer and seller of
cigarettes. We now consider her motion to remand this case to
Pennsylvania state court.
I. Factual and Procedural Background
While we will detail some of the particulars of the Complaint
as necessary below, the claims plaintiff Theresa Carter
("Carter") makes here can be simply stated. She alleges that her
decedent, Katie W. Carter, died from lung cancer and other
injuries Philip Morris Corporation caused with its cigarettes
that defendant Rite Aid Corporation of Pennsylvania sold her.
Carter alleges negligence (Count 1), strict products liability
(Count 3), and civil conspiracy (Count 5) against Philip Morris,
and similarly alleges negligence (Count 2) and strict products
liability (Count 4) against Rite Aid.*fn1
This case was originally filed in the Court of Common Pleas of
Philadelphia County, and Philip Morris subsequently removed it
here. In the notice of removal, Philip Morris argued that while
Rite Aid was, like Carter, a Pennsylvania citizen, this fact did
not destroy diversity because Rite Aid was in fact fraudulently
joined for the sole purpose of defeating federal diversity
Carter has now filed for remand under 28 U.S.C. § 1447(c)*fn2,
arguing that there was no fraudulent joinder, and that
consequently the parties are non-diverse and no basis for federal
A. Legal Standards for Remand
In general, "the removal statute should be strictly construed,
and all doubts should be resolved in favor of remand." Abels v.
State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). When
a non-diverse party has been joined as a defendant, the only way
(absent a federal question*fn4) for a removing defendant to
avoid remand is to demonstrate that the non-diverse party was
fraudulently joined, and, in so demonstrating, the removing party
bears a "heavy burden of persuasion." Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 (3d Cir. 1992). "Joinder [of a party] is
fraudulent where there is no reasonable basis in fact or
colorable ground supporting the claim against the joined
defendant, or no real intention in good faith to prosecute the
action against the defendant or seek a joint judgment." Boyer
Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (internal
In making this inquiry, we must resolve all contested facts in
the plaintiff's favor and must equally resolve all uncertainties
as to the current state of the applicable substantive law in her
favor. See id. Moreover, "if there is even a possibility that a
state court would find that the complaint states a cause of
action against any one of the [non-diverse] resident defendants,
the federal court must find that joinder was proper and remand
the case to state court." Batoff, 977 F.2d at 851 (quoting
Boyer, 913 F.2d at 111).
Here, therefore, in deciding whether Rite Aid was fraudulently
joined, we must examine Carter's Complaint*fn5 and assess
whether she states a colorable cause of action against Rite Aid
under Pennsylvania law. Importantly, though, our inquiry must not
be too deep. Simply because we come to believe that, at the end
of the day, a state court would dismiss the allegations against a
defendant for failure to state a cause of action does not mean
that the defendant's joinder was fraudulent. See Batoff, 977
F.2d at 852. In this context, our familiar standards of analysis
under Fed. R.Civ.P. 12(b)(6) are inapplicable and, instead, the
test is whether the plaintiff's claims are not even "colorable",
which is to say, "wholly insubstantial and frivolous". Id.*fn6
Consequently, if we must make a penetrating or intricate analysis
of state law in order to determine if the claim is colorable then
it is likely that the claim is indeed colorable and not
frivolous. See id. at 853.
With these standards in mind, we now examine Carter's
allegations against Rite Aid.
B. Assessment of Carter's Claims ...