The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Plaintiffs' Motion to Remand. (ECF No. 4.) For the following reasons, the Motion will be granted.
On October 22, 2010, Plaintiffs Dianne Cates Egger and John Patrick Egger filed a Complaint in the Court of Common Pleas of Philadelphia County against Defendants Philadelphia Airport Hotel, LLC; Philadelphia Airport Hotel Corporation; CCMH Philadelphia AP LLC; Philadelphia Airport Hotel, L.P.; Sandy LeBlanc; Marriott Hotel Services, Inc.; and Marriott International, Inc. (collectively, "Defendants"). (Compl., Notice of Removal Ex. A, ECF No. 1.) The Complaint alleges that on October 24, 2008, while staying as a guest at the Philadelphia Airport Hotel, Dianne Egger was injured when her right leg was punctured by a rusty metal bed rail as she walked around the bed in her hotel room. (Id. at ¶ 28.) The wound became infected, required two surgeries, and caused severe scarring. (Pls.' Mot. ¶¶ 2-3.) The Complaint contains three Counts. In Count One, Dianne Egger asserts negligence claims against each of the Defendants, alleging that her injuries were the result of the failure of each Defendant to inspect and maintain the hotel room and to warn guests of a defective and dangerous condition in breach of its legal duty to Plaintiff. In Count Two, Dianne Egger asserts a negligence claim against Defendant CCMH Philadelphia AP LLC, as the lessee of the hotel property. In Count Three, John Egger asserts a claim for loss of consortium against all Defendants. Plaintiffs demand damages in an amount in excess of $50,000, delay damages pursuant to Pennsylvania Rule of Civil Procedure 238, interest, and costs.
Defendants Marriott Hotel Services, Inc. and Marriott International, Inc. were served with the Complaint on October 27 and October 28, 2010, respectively. (Notice of Removal ¶¶ 4-5.) Defendant Sandy LeBlanc, the general manager of the hotel, was served with the Complaint on October 29, 2010. (Id. at ¶ 6.) Defendants Philadelphia Airport Hotel, L.P.; CCMH Philadelphia AP, LLC; Philadelphia Airport Hotel Corporation; and Philadelphia Airport Hotel, LLC (collectively, the "Corporate Forum Defendants") were served with the Complaint on October 28, 2010. (Pls.' Mot. Exs. C-F.)
On November 12, 2010, Defendants removed the case to this Court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. Defendants' Notice of Removal alleges that this Court has jurisdiction because complete diversity of citizenship exists between the parties and because none of the Defendants that were properly joined and served are citizens of the state in which the action is brought, Pennsylvania.*fn1 Defendants now contend that each of the Defendants that are citizens of Pennsylvania were either fraudulently joined or not properly served prior to Defendants' removal of the action to this Court.
On December 14, 2010, Plaintiffs filed the instant Motion seeking remand back to the Court of Common Pleas of Philadelphia County. Plaintiffs contend that removal was improper because five of the Defendants that were properly joined and served are citizens of Pennsylvania. Plaintiffs do not dispute that the amount in controversy exceeds $75,000.
Removal of actions from state courts is governed by 28 U.S.C. § 1441. Section 1441(a) states that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant." District courts have "original jurisdiction of all civil actions where the matter in controversy exceeds $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a). For an action arising out of diversity jurisdiction, removal is permitted "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." 28 U.S.C. § 1441(b). Once a case is removed, the plaintiff may file a motion to remand based on a defect in removal or lack of subject matter jurisdiction. 28 U.S.C. § 1447(c).
Removal statutes "are to be strictly construed against removal and all doubts should be resolved in favor of remand." In re Briscoe, 448 F.3d 201, 217 (3d Cir. 2006). "[T]he party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007).
In support of their request for remand, Plaintiffs argue that the "forum defendant rule" prevents removal because five of the Defendants are citizens of Pennsylvania, the state in which the action was brought. The forum defendant rule derives from 28 U.S.C. § 1441(b), which provides that when the basis for removal is diversity jurisdiction, a defendant may not remove a case to the federal district where the defendant is a citizen. Plaintiffs argue that because the Corporate Forum Defendants and Defendant Sandy LeBlanc are citizens of Pennsylvania, the action is not removable to this Court.
Defendants counter that the forum defendant rule does not preclude removal in this case because each of the Pennsylvania Defendants were not "properly joined and served," for purposes of 28 U.S.C. § 1441(b), and therefore do not destroy federal diversity jurisdiction. Specifically, Defendants contend that 1) the Corporate Forum Defendants were not served with the Complaint prior to the filing of the notice of removal, 2) Plaintiffs fraudulently joined the Corporate ...