The opinion of the court was delivered by: Dalzell, District Judge.
I. Factual and Procedural Background
While details of Lyall's allegations will be discussed where
pertinent below, we briefly summarize this suit here.
Lyall, a citizen and resident of New Zealand, contacted Emily
M, a Pennsylvania corporation with its principal place of
business in Pennsylvania, for the purpose of purchasing an
airline ticket for one-way travel between Philadelphia and
Chicago. Emily M sold her tickets on AirTran, a Nevada
corporation with its principal place of business in Florida, for
two flights on May 7, 1998: a flight from Philadelphia to
Atlanta, and a connecting flight from Atlanta to Chicago.
On that AirTran Flight 426 from Atlanta to Chicago, the flight
crew decided to fly through heavy weather in the flight path
rather than divert around it, despite such weather having been
seen and predicted before take-off. When the plane flew through
this heavy weather, the aircraft encountered severe turbulence,
which caused the overhead storage bins to open. This opening
caused luggage to fall from the bin and hit Lyall on the head and
neck, resulting in a bone fracture in her neck.
On these facts, Lyall brings five counts against AirTran and
Emily M. Count I alleges negligence against AirTran, claiming,
among other things, that AirTran was negligent in flying through
the heavy weather and in failing to ascertain that the luggage
bins were latched. Count II asserts breach of contract of
carriage against AirTran, alleging that the airline had violated
an implied agreement to exercise the highest degree of care
required of a common carrier. Count III alleges negligence
against Emily M, claiming, among other things, that Emily M was
negligent in selecting AirTran as an airline for travel. Count IV
alleges breach of contract against Emily M, on the theory that
Emily M had violated its oral contract with Lyall to select an
airline that would safely fly Lyall to Chicago. Count V asserts
gross negligence against AirTran, alleging that AirTran had a
corporate culture of violating federal aviation regulations that
led to the incident at issue here.
This case was originally filed in the Court of Common Pleas for
Philadelphia County, and AirTran subsequently removed it here. In
its notice of removal, AirTran argued that though Emily M is a
Pennsylvania citizen, this fact did not destroy diversity
jurisdiction because Emily M was in fact fraudulently joined for
the sole purpose of defeating federal diversity
Lyall has now timely moved for remand under
28 U.S.C. § 1447(c), arguing that there was no fraudulent joinder, and that
removal was thus improper.*fn2
A. Legal Standards for Remand*fn3
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 — or one that, as here, would otherwise
prevent removal — 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
In making this inquiry, we must resolve all contested facts in
the plaintiff's favor and also must 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 Emily M was fraudulently
joined, we must examine Lyall's Complaint*fn5 and assess whether
she states a colorable cause of action against Emily M under
Pennsylvania law.*fn6 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.*fn7 Consequently, if