The opinion of the court was delivered by: Joyner, C.J.
Before the Court is the Plaintiff's Motion for Remand (ECF No. 8). For the reasons set forth in this Memorandum, the Motion is granted.
This case is one of three pending on our docket arising out of the tragic crash of a Cessna T210L airplane during an attempted landing at William T. Piper Memorial Airport in Lock Haven, Pennsylvania. The pilot of the airplane, as well as the two passengers, both employees of the United States Department of Agriculture, Forest Service (the "Service"), perished in the crash.
The Plaintiffs, the widow of one of the passengers, also the executrix of his estate, and their son, brought this action in the Court of Common Pleas of Philadelphia County for damages, asserting a series of products liability and tort theories, against various entities in the Teledyne corporate family (the "Teledyne Defendants") and the operator of the airplane, Sterling Airways, Inc. ("Sterling") (collectively, the "Defendants"). Before service on any of the Defendants, certain of the Teledyne Defendants, invoking 28 U.S.C. § 1441, removed to this Court. All of the Teledyne Defendants then answered, filed a cross-claim against Sterling, and filed a third-party complaint against the estate of the pilot and the Service.
The Plaintiffs now move, pursuant to 28 U.S.C. § 1447(c), to remand this action to state court. We conclude that the initial removal was procedurally defective pursuant to 28 U.S.C. § 1441(b)(2), the so-called "forum defendant rule," because certain Teledyne Defendants are Pennsylvania citizens and were not fraudulently joined. Moreover, we conclude that the inclusion of the Teledyne Defendants' third-party claims against the Service pursuant to the Federal Tort Claims Act ("FTCA") neither affects the propriety of the removal nor independently precludes remand. Accordingly, we must remand the entire action to the Court of Common Pleas of Philadelphia County.
"[A]ny 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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The forum defendant rule prevents removal of a diversity "civil action . . . if any 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)(2).
The removing party bears a heavy burden to show, at all stages of the litigation, that the case is properly before the federal court. See Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). We strictly construe the removal statutes and resolve all doubts in favor of remand. Brown v. JEVIC, 575 F.3d 322, 326 (3d Cir. 2009).
The Plaintiffs argue that (1) the Teledyne Defendants' removal before service on any of the Defendants means that we may still consider the presence of the unserved forum Teledyne Defendants for purposes of the forum defendant rule, and (2) the forum Teledyne Defendants were not fraudulently joined, so the forum defendant rule renders removal improper. We agree with the Plaintiffs on both arguments, and we therefore conclude that the removal was procedurally defective.
The Teledyne Defendants argue that, even if the removal was improper, the presence of the Service as a third-party defendant precludes remand to state court. Based on the long-standing rule that we evaluate the propriety of removal based on the state of the case at the time of filing of the notice of removal, e.g., Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 135 (3d Cir.), cert. denied, 426 U.S. 907 (1976) ("It is settled that generally the right of removal is decided by the pleadings, viewed as of the time when the petition for removal is filed."), we conclude that the Teledyne Defendants' third-party complaint against the Service does not affect the propriety of the removal. We further conclude that the presence of the third-party FTCA claims does not independently preclude remand. We therefore remand the entire action to state court.
A. The Teledyne Defendants' Removal Before Service The Teledyne Defendants concede that a subset of the
Teledyne Defendants are citizens of Pennsylvania, the forum state here. The Teledyne Defendants further concede that the non-forum Teledyne Defendants filed the notice of removal in this action before the Plaintiffs could effect service on any of the named Defendants. (Notice of Removal ¶ 3.) They nonetheless argue that their victory in the "race to remove," see, e.g., In re Avandia Marketing, Sales Practices and Prods. Liab. Litig. (Avandia), 624 F. Supp. 2d 396, 410-11 (E.D. Pa. 2009) (Rufe, J.), ...