The opinion of the court was delivered by: Ludwig, J.
This is defendants' second attempt to effectuate removal on grounds of diversity jurisdiction.*fn1 For the reasons set forth below, plaintiffs' motion to remand must again be granted.
This is a personal injury action based on negligence and products liability arising from a motorcycle accident on August 10, 2006. Complaint, ¶ 30. On August 18, 2008, service of plaintiffs' complaint was made on defendants, and on September 8, 2008, defendants Harley-Davidson and Fred Gates had the action removed on the ground of diversity jurisdiction. Plaintiffs move to remand based on their assertion of claims against a resident of the forum state, and against non-diverse parties. Defendants contend that the forum resident and non-diverse parties were fraudulently joined, and therefore, their citizenship should be disregarded.*fn2 Because at this juncture, the joinders appear not to be fraudulent, there is no diversity jurisdiction, and the action will be remanded.*fn3
According to the complaint,*fn4 plaintiffs Robert Brooks and Kathryn Brooks are citizens of Maryland, and their adult son Kenneth, is a citizen of Delaware. Defendants are Harley-Davidson Motor Company Group, Inc., a Wisconsin corporation with its principal place of business in Wisconsin; Fred Gates is vice-president and general manager at HarleyDavidson's York, Pennsylvania plant, and a citizen of Pennsylvania; Kuser Enterprises, Inc. is a New Jersey corporation with its principal place of business in New Jersey; Mike's Famous Harley-Davidson, Inc. is a Delaware corporation with its principal place of business in Maryland;*fn5 Harley-Davidson of Annapolis is a Maryland corporation with its principal place of business in Maryland; Rommel Cycles, LLC, is a Maryland corporation with its principal place of business in Maryland; and Dave Rommel is a Maryland citizen. Complaint, ¶¶ 1-29.
The complaint asserts the following claims, based on injuries resulting from the negligent design, manufacture, sale, distribution, service and repair of Robert Brooks' motorcycle, and the sale of a similarly defective motorcycle to Kathryn Brooks:
(1) negligence (Counts I, V, X);
(2) strict products liability (Count II);
(3) breach of warranty (Count III);
(4) violation of Pennsylvania's UTPCPL (Counts IV, VI, IX);
(5) joint enterprise and alter ego claims against Mike's Famous and the Rommel defendants (Counts VII and VIII); and
(6) loss of consortium claims on behalf of both Kathryn and the Brooks' adult son Kenneth (Count XI).
According to plaintiffs, the presence of Fred Gates, a Pennsylvania citizen, renders removal improper under 28 U.S.C. § 1441(b). Remand motion, ¶ 47. Plaintiffs' negligence claim against Gates asserts that as general manager of harley-Davidson's York plant, Gates was actively involved in the manufacture of the motorcycles in question. Gates' affidavit stated that he had no role in the design, manufacture, assembly, inspection, testing, packaging or distribution of the motorcycle at issue. Affidavit of Fred Gates, ¶ 4, Exhibit "B" to defendants' memorandum in opposition.
Under Pennsylvania law, "a corporate officer can be held liable for 'misfeasance,' i.e., the improper performance of an act, but not for 'mere nonfeasance,' i.e., the omission of an act which a person ought to do." Brindley v. Woodland Village Restaurant, Inc., 652 A.2d 865, 868 (Pa. Super. 1995). Defendants' position is that Gates' affidavit establishes that he could be charged, at most, with nonfeasance, which is not actionable conduct. Plaintiffs respond, however, that Gates' affidavit is not exhaustive as to his conduct - conduct that may have been active, and, therefore, considered misfeasance under Pennsylvania law .*fn6 "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 resident defendants, the federal court must find that joinder was proper and remand the case to state court." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085 (1991).
Because the complaint asserts a claim against Gates cognizable under Pennsylvania law, which may be supported by evidence obtained in the course of discovery, the claim is ...