The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is a Motion to Remand submitted by Plaintiffs, Mia Robinson ("Minor Plaintiff"), a minor, through her guardian, Rachel Robinson, and Rachel Robinson ("Plaintiff"), individually. Defendant, Pfizer, Inc. ("Pfizer") responds to Plaintiff's Motion to Remand. For the reasons set forth below, this Motion is granted.
Plaintiff alleges that Defendants Wolters Kluwer Health, Inc. ("WKH") and Wolters Kluwer United States Inc. ("WKUS") (collectively the "WK Defendants") author and supply literature to pharmacies that contain prescription drug information called patient education monographs ("PEMs"), which are intended to be given directly to consumers by their pharmacists. (Compl. ¶ 44.) Plaintiff further alleges that the WK Defendants "voluntarily and for profit" undertook to provide PEMs for the prescription drug Zoloft. (Id. ¶ 45.) Plaintiff further alleges that she received a PEM with her prescription when she picked it up from her pharmacy. (Id. ¶ 49.) According to Plaintiff, she relied on the warnings and instructions contained in the PEM to determine the risks associated with the prescription. (Id. ¶ 142.) Additionally, Plaintiff avers that the PEM inadequately warned her about the risk of congenital defects to developing fetuses. (Id. ¶ 50.) Plaintiff further avers that Minor Plaintiff was born with serious and permanent congenital defects because she took Zoloft while she was pregnant. (Id. ¶¶ 56-58.)
Plaintiff commenced this action by writ of summons in the Court of Common Pleas of Philadelphia County on July 11, 2011, and subsequently filed a Complaint on August 12, 2011. Regarding the claims against the WK Defendants, Plaintiff alleges: Negligence (Count Eight); Strict Products Liability-Defective Design (Count Nine); Strict Products Liability-Failure to Warn (Count Ten); Fraud, Misrepresentation, and Suppression (Count Eleven); and Breach of Express and Implied Warranties (Count 12). Against all Defendants, Plaintiff alleges: Gross Negligence/Malice (Count 13); Loss of Consortium and Pecuniary Loss (Count 14); and Punitive Damages (Count 15). Thereafter, Pfizer removed the action to this Court on September 12, 2011. On October 3, 2011, the WK Defendants filed a Motion to Dismiss.*fn1 On October 6, 2011, Plaintiffs filed a Motion to Remand, arguing that we lack subject matter jurisdiction, which is based upon diversity of citizenship, because the WK Defendants are citizens of Pennsylvania. Pfizer responds to the Motion to Remand, arguing that we may disregard the WK Defendants' citizenship because they were fraudulently joined.
"By statute, a defendant has the right to remove a civil action from state court if the case could have been brought originally in federal court." In re Briscoe, 448 F.3d 201, 215 (3d Cir. 2006) (citing 28 U.S.C. § 1441(a)). For a removal predicated upon diversity of citizenship, a proper exercise of federal jurisdiction requires satisfaction of the amount in controversy requirement as well as complete diversity between the parties, that is, no plaintiff may be a citizen of the same state as any defendant. Id. at 216 (citing Grand Union Supermarkets of the VI, Inc. v. H.E. Lockhart Mgmt., Inc., 316 F. 3d 408, 410 (3d Cir. 2003)). Furthermore, removal of an action premised upon diversity of citizenship is only permissible 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." 28 U.S.C. § 1441(b).
The doctrine of fraudulent joinder represents an exception to the removal requirements. Briscoe, 448 F.3d at 215-16. In a suit where one of the defendants is a citizen of the forum state, the diverse defendant may still remove the action if it can establish that the non-diverse defendants were "fraudulently" named or joined solely to defeat diversity jurisdiction. Id. at 216. "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.'" Id. (quoting Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 32 (3d Cir. 1985)). "If there is even a possibility that the 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 to state court." Id. at 217 (citing Batoff v. State Farm Ins. Co., 977 F.2d 848, 551-52 (3d Cir. 1992)). "If the district court finds that the joinder was 'fraudulent' in this sense, the court can 'disregard, for jurisdictional purposes, the citizenship of certain nondiverse defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and thereby retain jurisdiction.'" Id. (quoting Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999)). If, however, the district court finds that it does not have subject matter jurisdiction over the removed action because the joinder was not fraudulent, it must remand to state court. Id. (citing 28 U.S.C. § 1447(c)).
The removing party carries a "heavy burden of persuasion" in showing that the nondiverse defendant was fraudulently joined. Batoff, 977 F.2d at 851 (quoting Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1012 n.6 (3d Cir. 1987)). "It is logical that the removing party bear this burden, for removal statutes 'are to be strictly construed against removal and all doubts should be resolved in favor of remand.'" Id. (quoting Steel Valley, 809 F.2d at 1010). In evaluating the alleged fraud, the district court must "focus on the plaintiff's complaint at the time the petition for removal was filed. Id. In so ruling, the district court must assume as true all factual allegations of the complaint. Id. at 851-52 (citing Steel Valley, 809 F.2d at 1010). We must also "resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Id. at 852 (quoting Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
The scope of inquiry for a motion to remand is different from that employed in deciding a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Id.
The inquiry into the validity of a complaint triggered by a motion to dismiss under Rule12(b)(6) is "more searching" than that permissible when a party makes a claim of fraudulent joinder. Id. Therefore, it is possible that a party is not fraudulently joined, but that the claim against that party ultimately is dismissed for failure to state a claim upon which relief may be granted. Id. Accordingly, we must exercise due care to ensure that our jurisdictional inquiry does not transgress into a motion to dismiss. See Id.
In the course of determining whether the WK Defendants have been fraudulently joined, we must first decide whether to apply the substantive laws of Illinois or Pennsylvania. This is due to the fact that Plaintiff alleges that all of the events giving rise to her claims occurred in Illinois and the case's only ascertainable connection to ...