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August 8, 2000


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 jurisdiction.*fn1

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

II. Analysis

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 quotations omitted).

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 we ...

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