The opinion of the court was delivered by: Joyner, J.
Presently before the Court are Plaintiff's Motion to Remand this action to the Philadelphia Court of Common Pleas (Doc. No. 6), and Defendant Weinstein and Defendant Whittmanhart's Response in Opposition thereto (Doc. No. 8). For the reasons that follow, the Court denies the Motion to Remand.
Plaintiff Richard Britton, a Pennsylvania citizen, filed a Complaint in the Court of Common Pleas of Philadelphia County on February 24, 2009, against Defendant Whittmanhart and Defendant John Weinstein. Defendant Whittmanhart, a Delaware corporation specializing in advertising, maintains a place of business in Philadelphia where Plaintiff worked as an employee. Defendant Weinstein, a Pennsylvania citizen, served as the General Manager of Whittmanhart's Philadelphia office and President of Whittmanhart's Healthcare division. Plaintiff worked as Whittmanhart's Business Development Manager within its Interactive Business Unit in Philadelphia, beginning on March 13, 2006, until his termination on April 11, 2008.
Plaintiff alleges that he was terminated by Defendant Whittmanhart without cause and in bad faith in an effort by Whittmanhart to reap the benefits of Plaintiff's procurement of new business without paying the Plaintiff's commissions, which allegedly amount to $150,000 of unpaid wages. The Complaint asserts two counts: 1) a claim against Defendant Whittmanhart for breach of contract based on wrongful termination and 2) a claim against both Defendants Whittmanhart and Weinstein for unpaid wages pursuant to the Pennsylvania Wage and Payment Collection Law, 43 Pa. C.S. § 260.1, et. seq. ("WPCL"). The latter count against Defendant Weinstein posits that Weinstein, in his position as general manager of the Philadelphia branch and President of the Healthcare division, acted as a decision or policy maker and as such is an "employer" who may be found liable under the WPCL to the Plaintiff for unpaid wages.
The Defendants filed a Notice of Removal to this court on April 15, 2009, invoking diversity jurisdiction under 28 U.S.C. § 1332(a)(1). The Defendants allege that Defendant Weinstein was fraudulently joined and that his citizenship must thus be disregarded for purposes of diversity jurisdiction. Plaintiff now moves to remand this action to the Philadelphia Court of Common Pleas, arguing that removal was improper because the Plaintiff asserts a "colorable claim" against Defendant Weinstein. Plaintiff contends that since Weinstein is a non-diverse party, remand is appropriate given that the opposing parties are not completely diverse.
The principles and procedures governing removal of actions from a state court to a federal forum are set forth in 28 U.S.C. § 1441, which states in pertinent part:
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.*fn1
Thus, removal is proper only if the federal district court would have had original jurisdiction if the case were originally filed in federal court. Brown v. Francis, 75 F.3d 860, 864 (3d Cir. 1996). This jurisdictional prerequisite to removal is an absolute, non-waivable requirement in recognition of the fact that any action taken by a federal court in the absence of jurisdiction is necessarily void. Id. (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3rd Cir. 1985); see also In Re Comcast Cellular Telecommunications Litigation, 949 F.Supp. 1193, 1199 (E.D. Pa. 1996). The removal statute is to be strictly construed and all doubts resolved in favor of remand. Id. at 110. If there is any doubt as to the propriety of removal, that case should not be removed to federal court. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); see also Ferraro v. Bell Atlantic, Co., 955 F.Supp. 354, 356 (D.N.J. 1997).
Remand is appropriate "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction...." 28 U.S.C. § 1447. On a motion to remand, the removing party, as the party urging the existence of jurisdiction, bears the burden of proving that jurisdiction exists.*fn2 Sanderson, Thompson, Ratledge & Zimny v. AWACS, Inc., 958 F.Supp. 947, 952 (D. Del. 1997)(citing Boyer, 913 F.2d at 111).
Thus, when a non-diverse party has been joined as a defendant, in the absence of a substantial federal question, the removing defendant may avoid remand by demonstrating that the non-diverse party was "fraudulently" joined. Batoff v. State Farm Insurance Co., 977 F.2d 848, 851 (3d Cir. 1992). If the non-diverse party is found to have been "fraudulently" joined, then that party may be dismissed and ignored for purposes of determining whether the case was properly removed to federal court. Central Pennsylvania Teamsters Pension Fund v. Burten, 634 F.Supp. 128 (E.D. Pa. 1986).
In showing that the plaintiff fraudulently joined a non-diverse defendant to destroy diversity jurisdiction, the removing defendant carries a heavy burden of persuasion to demonstrate that the case belongs within the jurisdiction of the federal courts. Batoff, 977 F.2d at 851. Furthermore, the district court must assume as true all factual allegations of the complaint and resolve any uncertainties of substantive law in favor of the plaintiff. Steel Valley Auth., 809 ...