The opinion of the court was delivered by: Buckwalter, S. J.
Currently pending before the Court is the Motion for Remand by Plaintiffs Dawn and James Casale. For the following reasons, the Motion is granted and the case is remanded to the Pennsylvania Court of Common Pleas for Philadelphia County.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to the facts set forth in Plaintiff's Complaint, Defendant Aurora Yarns ("Aurora") supplied Plaintiff The Knit With ("TKW") with Cashmerino yarn between August 2004 and January 2006. (Compl. ¶ 12.) These various transactions came about when Defendant Donna McGranaghan, an independent representative for yarn wholesalers, conducted a sales call to Plaintiff, during which she described Cashmerino as "a high-quality, high-cashmere-content yarn appropriately stocked by a high-end shop which could be economically inventoried because it was soon to be closed-out." (Id. ¶¶ 8, 13.) Subsequently, on July 6, 2006, TKW learned by rumor that an unidentified handknitting yarn labeled to contain the identical fiber percentages as Cashmerino had actually been found to contain no cashmere. (Id. ¶ 15.) Pursuant to 13 Pa.C.S. § 2609, TKW requested that Aurora furnish a Guaranty of Compliance indicating that labeling of Aurora-sourced wool complied with the Wool Products Labeling Act of 1939, 11 U.S.C. § 68 et seq. (Id. ¶ 18.) Defendant Frederikka Payne, the proprietor of Aurora, originally promised to furnish the Guaranty, but subsequently expressed some reservations to Plaintiff about doing so. (Id. ¶¶ 19-20.)
Meanwhile, TKW retained Kenneth D. Langley, a professor of materials science at the University of Massachusetts, to ascertain the cashmere content of three "suspect" yarns (other than Cashmerino) matching the fiber content of the rumored yarn. (Id. ¶ 21.) On July 18, 2006, Dr. Langley's analyses found that the three "suspect" yarns had no cashmere at all. (Id.) By July 21, 2006, Aurora had yet to furnish the requested Guaranty and Defendant Payne expressed doubt about her receiving the necessary verification concerning the Cashmerino's fiber content from her supplying Italian manufacturer before the manufacturer's one month close on July 31st. (Id. ¶¶ 23-24.) She also "expressed reticence" in requesting that the manufacturer provide this information. (Id. ¶ 24.)
Given all of these events, TKW began to suspect whether the Cashmerino labeling properly stated the cashmere content of the yarn. (Id. ¶ 25.) Thus, on July 24, 2006, TKW removed Cashmerino from sale and submitted samples to Dr. Langley for fiber analysis, which revealed that the yarn was spun of 7% cashmere instead of the labeled 20% cashmere. (Id. ¶ 26.) TKW informed Aurora of these results, but Defendant Payne disputed Dr. Langley's reliability and challenged TKW's intent in performing these fiber analyses. (Id. ¶¶ 27-28.) Although Payne indicated that she trusted the manufacturer (Ornaghi Filati), she offered to take back TKW's remaining inventory for her own re-sale. (Id. ¶ 28.) She did not agree that past purchasers of the purportedly mis-labeled Cashmerino needed to know about any possible errors in the labeling. (Id.) On August 3, 2006, Payne informed TKW that the manufacturer stood by Cashmerino's labeling and would furnish a report to prove the labeling's accuracy. (Id. ¶ 29.)
Despite the Langley report, Payne executed a Guaranty for Cashmerino, dated August 14, 2006, challenging TKW's integrity and good faith in testing the wool product. (Id. ¶ 30.) On August 15, 2006, Payne and TKW initially agreed that TKW would "quietly" recall the yarn, return remaining stock to Aurora, and forego litigation in exchange for Aurora's promise to make TKW whole. (Id. ¶ 31.) On November 29, 2006, however, Payne stated that Ornaghi's testing reached "the same result" found by Langley -- that Cashmerino was spun of just 7% cashmere. (Id. ¶ 33.) Aurora thus requested that TKW indicate to consumers that the importer and manufacturer were participating in the recall as well. (Id.)
Via correspondence dated July 10, 2007, TKW informed Aurora of the status of its recall, presented an itemized schedule of costs and losses incurred, and requested reimbursement of those losses pursuant to the August 15, 2006 agreement. (Id. ¶ 34.) Aurora then issued a call tag, on August 1, 2007, for TKW's return of all remaining Cashmerino product, as well as sixty labels received from consumers during the recall. (Id. ¶ 35.) On September 1, TKW demanded that Aurora complete "meaningful and substantial performance [to make TKW whole] by the date certain of September 17" or the August 15, 2006 agreement would be deemed void. (Id. ¶ 36.) Despite TKW's demand for damages totaling $19,445.70, Aurora sent TKW a check for only $2,497.14. (Id. ¶ 37.) Because this amount was less than requested, TKW deemed the August 2006 agreement repudiated. (Id.)
On December 1, 2009, TKW brought a civil action in the Pennsylvania Court of Common Pleas for Philadelphia County against Defendants Aurora Yarns, Frederikka Payne, and Donna McGranaghan. The Complaint alleged claims against Defendants Payne and Aurora for false advertising pursuant to the Lanham Act, breach of contract for failure to supply product requested, breach of contract for breach of the duty to provide assurances, and breach of contract for repudiation of the "quiet" recall agreement. (Compl., The Knit With v. Aurora Yarns ¶¶ 35-45, 65-88 (Phila. C.P. Dec. 1, 2009.) Additionally, TKW claimed breach of express warranty and breach of implied warranty against Defendants Aurora, Payne, and McGranaghan. (Id. ¶¶ 46-64.) On December 16, 2009, Defendants Aurora and Payne removed the case to the United States District Court for the Eastern District of Pennsylvania under Civil Action Number 09-5981. Shortly after the case was transferred to federal court, TKW filed a Motion for Remand. On March 11, 2010, the Court granted that Motion due to Defendants' failure to comply with the unanimity rule, and returned the case to the Pennsylvania Court of Common Pleas for Philadelphia County.
While the removal and remand proceedings were occurring in the above action, current Plaintiffs Dawn and James Casale, as proprietors of TKW, filed another action in the Philadelphia County Court Common Pleas on January 8, 2010. This Complaint alleged breaches of both an express warranty and the implied warranty of merchantability against Defendants Payne, Aurora, and McGranaghan, (Compl. ¶¶ 39-57), as well as additional claims against Defendants Aurora and Payne for breach of contract for failure to supply product requested; breach of contract for failing to provide assurances; and breach of contract for repudiation of the "quiet" recall agreement. (Id. ¶¶ 58-82.) On February 1, 2010, Defendants Aurora and Payne removed this action to federal court and Defendant McGranaghan provided written consent to the removal, thus prompting a new round of motions. Defendant McGranaghan filed a Motion to Dismiss on February 9, 2010 and, in lieu of answer, Plaintiffs filed a Motion to Remand for Improper Removal on March 3, 2010. Defendant McGranaghan responded on March 17, 2010 and Defendants Aurora and Payne responded on March 18, 2010. The Court now turns to a discussion of that pending motion.
Under 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of plaintiff's service of the complaint upon defendant. See 28 U.S.C. § 1446(b). "The defendants bear the burden of establishing removal jurisdiction and compliance with all pertinent procedural requirements." Winnick v. Pratt, No. CIV.A.03-1612, 2003 WL 21204467, at *2 (E.D. Pa. May 20, 2003) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990).
Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court. Cook v. Soft Sheen Carson, Inc., No. CIV.A.08-1542, 2008 WL 4606305, at *1 (D.N.J. Oct. 15, 2008). Remand to the state court is appropriate for: "(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process." PAS v. Travelers Ins. Co., 7 F.3d 329, 352 (3d Cir. 1993). Remand is mandatory and can occur at any time during the litigation if the court determines that it lacks federal subject matter jurisdiction. Kimmel v. DeGasperi, No. CIV.A.00-143, 2000 WL 420639, at *1 (E.D. Pa. Apr. 7, 2000) (citing 28 U.S.C. § 1447(c)). A motion to remand the case on the basis of any defect in the removal procedure, however, must be submitted within thirty days after filing of the notice of removal under section 1446(a). 28 U.S.C. § 1447(c); N. Penn Water Auth. v. Bae Sys. Aerospace Elec., Inc., No. CIV.A.04-5030, 2005 WL 1279091, at *5 (E.D. Pa. May 25, 2005). Upon a motion to remand, "it is always the removing party's burden to prove the propriety of removal, and any doubts about the existence of federal jurisdiction must be resolved in favor of remand." Lumbermans Mut. Cas. Co. v. Fishman, No. CIV.A.99-929, 1999 WL 744016, at *1 (E.D. Pa. Sep. 22, 1999) (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d Cir.1992)); see also Boyer, 913 F.2d at 111 (The removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand.") (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.1987)); see also Palmer v. Univ. of Med. and Dentistry of N.J., 605 F. Supp. 2d 624, 627 (D.N.J. 2009) ("A party opposing remand must show that removal was proper.").
In the current Motion, Plaintiff concedes that the removal of this case was procedurally proper, but denies that the Court has subject matter jurisdiction over the removed Complaint. Defendants respond that, on its face, the allegations of the Complaint support a finding of both federal question jurisdiction under 28 U.S.C. § 1331 and diversity ...