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CARTER v. PHILIP MORRIS CORP.

February 23, 2000

THERESA CARTER, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF KATIE W. CARTER,
V.
PHILIP MORRIS CORPORATION AND RITE AID CORPORATION OF PENNSYLVANIA.



The opinion of the court was delivered by: Dalzell, District Judge.

MEMORANDUM

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 jurisdiction.

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 jurisdiction exists.*fn3

II. Analysis

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 v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990) (internal quotations omitted).

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 ...


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