The opinion of the court was delivered by: Diamond, J.
Plaintiff, a Pennsylvania resident, originally filed this negligence action in state court, naming out-of-state corporate defendants who removed to this Court on diversity grounds. Plaintiff voluntarily dismissed the action, only immediately to re-file it in state court, adding, inter alia, two individual defendants who are Pennsylvania citizens, thus defeating complete diversity. Defendants nonetheless again removed, arguing that because Plaintiff had fraudulently added the Pennsylvania citizens, diversity jurisdiction still exists. Plaintiff has moved to remand and asked me to impose fees and costs. Because Defendants have not met their heavy burden of establishing fraudulent joinder, I will remand. In the circumstances presented, however, I will not impose fees and costs.
On April 18, 2011, Plaintiff filed her Complaint in the Philadelphia Common Pleas Court, bringing a single count of negligence against five corporate entities related to Macy‟s, Inc. (Doc. No. 1, Ex. A, ¶¶26-30.) Plaintiff alleged that on January 29, 2011, while shopping at Macy‟s in Ardmore, she was injured when she tripped on an "unmarked, empty platform" placed on the floor in front of the store elevator in the Women‟s Department. (Id. ¶12.) She alleged that Defendants wrongfully created the dangerous condition that injured her. (Id. ¶¶12, 17, 29.)
Because Plaintiff is a citizen of Pennsylvania and Defendants citizens of either Delaware or New York (with their principal places of business in Ohio), on May 23, 2011, Defendants removed to this Court on diversity grounds. (Doc. No. 1, ¶¶2, 15-19, 21.) On June 1, 2011, Plaintiff filed a voluntary Notice of Dismissal without prejudice. (Id. ¶3); Fed. R. Civ. P. 41(a)(1). Although Plaintiff now suggests that this dismissal "is of no moment," her reason for taking this unusual action quickly became apparent. (Doc. No. 7 at 2 n.1.) The next day, Plaintiff filed a second Complaint in the Philadelphia Common Pleas Court. (Doc. No. 1, Ex. D.) Although the substance of the first and second Complaints is the same, the Parties are not. In addition to the five original corporate defendants, Plaintiff named four new defendants: Pennsylvania citizen Nikki Peticca-Melso (the Ardmore Store Manager); Kimco Realty Corporation (a Maryland corporation and the Ardmore store‟s purported property manager); Kimco Realty Services, Inc. (a Delaware corporation); and Pennsylvania citizen Nina Rogers (Director of Real Estate for Kimco Realty Corporation). (Doc. No. 1, ¶5; Doc. No. 1, Ex. D, ¶¶7-12.)
Ms. Peticca-Melso and Ms. Rogers are alleged to be Pennsylvania citizens, thus suggesting that complete diversity no longer exists. (Doc. No. 7 at 2.) Defendants nonetheless again removed, arguing that Plaintiff fraudulently joined Peticca-Melso and Rogers to defeat diversity. (Doc. No. 1, passim.) Plaintiff has moved to remand, arguing that there is no fraudulent joinder. (Doc. No. 7, passim.) Plaintiff also asks for fees and costs she has incurred in seeking remand. (Id. at 12); see 28 U.S.C. § 1447(c).
The Third Circuit advises that "plaintiffs have the option of naming those parties whom they choose to sue, subject only to the rules of joinder of necessary parties." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 110 (3d Cir. 1990). "While the plaintiffs' decision in this regard may have repercussions for purposes of diversity jurisdiction, there is no reason for a court to interfere with this inevitable consequence of a plaintiff's election unless the plaintiff had impermissibly manufactured diversity or used an unacceptable device to defeat diversity." Id.
The fraudulent joinder of a non-diverse party is an "unacceptable device to defeat diversity." Id. Joinder is fraudulent if "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." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985). Nevertheless, a plaintiff‟s "motive . . . to defeat diversity is not considered indicative of fraudulent joinder." Id. (emphasis supplied).
A defendant arguing fraudulent joinder faces a "heavy burden of persuasion." Boyer, 913 F.2d at 111. The district court "must resolve all contested issues of substantive fact in favor of the plaintiff and must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Id. ""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.‟" Id. (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440-41 (11th Cir. 1983)). In making this evaluation, the district court may not consider the merits of the plaintiff‟s case. See Boyer, 913 F.2d at 112-13 (overturning a finding of fraudulent joinder because it was based on a merits analysis).
When applying Boyer, the court must distinguish substantive facts-which are construed as alleged in the plaintiff‟s favor-from jurisdictional facts. In determining whether diversity exists, the court "may demand" that these "jurisdictional facts" be established by an evidentiary preponderance. See Frederico v. Home Depot, 507 F.3d 188, 194 (3d Cir. 2007) (quoting McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)). "The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1194 (2010). "When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof." Id. at 1194-95.
I must first determine whether or not there is complete diversity between Plaintiff and Defendants. See id. at 1194. If not, I must determine under Boyer whether Defendants have made out fraudulent joinder with respect to the negligence claim brought against each non-diverse defendant.
Plaintiff alleges that Macy‟s and Macy‟s New Jersey, Inc. are organized under Pennsylvania law. She alleges that the Individual Defendants are Pennsylvania citizens. Either allegation, if true, would defeat diversity. See 28 U.S.C. § 1332(a)(1), (c)(1). She also alleges that these Defendants as well as Kimco Realty ...