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MALLALIEU-GOLDER INS. AGENCY v. EXECUTIVE RISK INDEMNITY

April 1, 2003

MALLALIEU-GOLDER INSURANCE AGENCY, INC., PLAINTIFF
v.
EXECUTIVE RISK INDEMNITY, INC., AND PREMIUM FINANCE TRUST INVESTORS FUND, DEFENDANTS



The opinion of the court was delivered by: James F. McCLURE, Jr., United States District Judge

MEMORANDUM

BACKGROUND:

On October 2, 2002, plaintiff Mallalieu-Golder Insurance Agency, Inc. (Mallalieu) filed an action for declaratory judgment against Executive Risk Indemnity, Inc. (Executive Risk) and Premium Finance Trust Investors Fund (Investors Fund) in the Lycoming County, Pennsylvania, Court of Common Pleas. Mallalieu seeks indemnification from Executive Risk, its insurance carrier, from a suit filed in Lycoming County against it and Premium Finance Trust, a wholly-owned subsidiary of Mallalieu, by Investors Fund. Investors Fund consists of individuals who invested in Premium Finance Trust; the investors have been certified as a class in the pending state court action against Mallalieu and Premium Finance Trust. By notice of removal filed October 28, 2002, Executive Risk removed the declaratory judgment action to this court based on diversity jurisdiction. See 28 U.S.C. § 1332, 1441.

Before the court is Mallalieu's motion to remand. Mallalieu argues that the court lacks jurisdiction over the subject matter because both it and Investors Fund are citizens of the Commonwealth of Pennsylvania and, as such, there is no complete diversity among the parties. Mallalieu further argues that because Investors Fund is a citizen of the forum state, removal of the instant action is prohibited by 28 U.S.C. § 1441(b). Executive Finance responds that (1) Investors Fund is a fraudulently joined party and the court should therefore disregard its citizenship when determining diversity; (2) if not fraudulently joined, Investors Fund is a nominal or formal party, and the court must disregard its citizenship when determining diversity; and (3) in the alternative, the court should realign Investors Fund as a party plaintiff, thus maintaining diversity.

In its motion, Mallalieu contends that all defendants served in the declaratory action have not joined or consented to the notice of removal, and the declaratory action is part of the state court class action pending in the Lycoming County Court of Common Pleas. Although Mallalieu has not addressed these arguments in its brief in support of its motion to remand we note first that because we find that Investors Trust is a nominal party to the declaratory judgment action, it need not consent to Executive Risk's notice of removal. See Balazik v. County of Dauphin, 44 F.3d 209, 213 n. 4 (3d Cir. 1995). We further note that the instant action is completely separate from the state court action by Investors Trust against Mallalieu and that we therefore may exercise jurisdiction. Mallalieu's motion will be denied.

DISCUSSION:

I. DIVERSITY

We note at the outset that when removing a case to federal court, the removing party bears the burden of establishing federal jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). We further note that we are required to construe strictly the removal statutes against removal and to resolve all doubts in favor of remand. Id. (citations omitted). In general, a defendant may remove to federal court any civil action brought in state court where the parties are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1), 1441(a).

It is undisputed that the amount in controversy in the instant case exceeds $75,000. (Not. Rem., Rec. Doc. No. 1 at ¶ 11.) We therefore focus our initial analysis upon the citizenship of the parties.

Mallalieu is a Pennsylvania corporation which maintains its principal place of business in Pennsylvania; it is thus a citizen of the Commonwealth of Pennsylvania. Investors Fund is also a citizen of the Commonwealth of Pennsylvania.*fn1 Executive Risk is a Delaware Corporation which maintains its principal place of business in New Jersey; it is thus a citizen of Delaware and New Jersey. 28 U.S.C. § 1332(c)(1). Inasmuch as all defendants are required to have diverse citizenship from all plaintiffs, See Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 69 (1941), Mallalieu maintains that because both it and Investors Fund are Pennsylvania citizens, we are without jurisdiction over the instant action. In response, Executive Risk argues that (1) Investors Fund is a fraudulently joined party and the court should therefore disregard its citizenship when determining diversity; (2) if not fraudulently joined, Investors Fund is a nominal or formal party, and the court must disregard its citizenship when determining diversity; and (3) in the alternative, the court should realign Investors Fund as a party plaintiff, thus maintaining diversity. We address each argument below.

A. FRAUDULENTLY JOINED

Executive Finance asserts first that Mallalieu joined Investors Fund as a defendant solely in a fraudulent attempt to defeat diversity jurisdiction. In support of its argument, Executive Finance points out that Mallalieu has asserted no claims against Investors Fund and therefore has no chance of success against it. While we agree that Mallalieu has asserted no claims against Investors Fund, we find that Investors Fund is not a fraudulently joined party.

The Third Circuit has explained that "[j]oinder 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 defendants or seek a joint judgment." Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir. 1992) (internal quotation marks and citation omitted). Because Mallalieu has asserted no claim against Investors Fund, we need not examine whether there is a basis in fact or a colorable ground to support a claim against it. However, we may examine whether Mallalieu possessed a real intention in good faith when it joined Investors Fund as a defendant. We find that it did.

The Pennsylvania Declaratory Judgment Act prescribes that when seeking declaratory relief, "all persons shall be made parties who have or claim any interest which would be affected by the declaration. . . ." 42 PA. CONS. STAT. ANN. ยง 7540. In Vale Chem. Co. v. Hartford Accident and Indem. Co., 516 A.2d 684 (Pa. 1986), the Supreme Court of Pennsylvania found that an injured plaintiff in a tort case has "an interest in seeing that an insurance company pays the judgment against its insured." Vale, 516 A.2d at 686-87. The ...


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