R. BARCLAY SURRICK, District Judge.
Presently before the Court is Plaintiffs' Motion to Remand. (ECF No. 4.) For the following reasons, the Motion will be granted.
On March 28, 2007, Plaintiffs Bardhyl Nele and Dhura Le Nele filed an Amended Complaint in the Court of Common Pleas of Philadelphia County against Defendants Marshalls Distribution Center ("Marshalls"), Philadelphia Authority for Industrial Development ("PAID"), the City of Philadelphia, Liberty Property of Philadelphia Limited Partnership III, NBC Philadelphia Merchants, Inc. ("NBC"), Liberty Property Trust, The TJX Companies, Inc. ("TJX"), T.J. Maxx, Marmaxx Distribution Center; Marmaxx Operating Corp. ("Marmaxx"), and The Marmaxx Group (collectively, "Original Defendants"). (Am. Compl., Notice of Removal Ex. A, ECF No. 1.)
The Amended Complaint alleges that on December 9, 2004, while employed by one of the Original Defendants, Bardhyl Nele was catastrophically injured when his foot was crushed between a moving forklift under his operation and a stationary guide rail. (Am. Compl. ¶¶ 24, 26.) The resulting injury required emergency medical attention for broken bones and structural damage resulting in the partial amputation of Mr. Nele's foot. ( Id. at ¶¶ 26, 28.) The Amended Complaint contains five Counts alleging negligence and other theories of liability. ( Id. at ¶¶ 27-53.)
Defendants Liberty Property Trust, Liberty Property of Philadelphia Limited Partnership III, Marshalls, Marmaxx Distribution Center, T.J. Maxx, and The Marmaxx Group filed motions for summary judgment that were granted by the Court of Common Pleas on November 21, 2008. (Common Pleas Op., Notice of Removal Ex. B.) On February 6, 2009, Judge Frederica Massiah-Jackson of the Court of Common Pleas denied the summary judgment motions of TJX and NBC. (Notice of Removal ¶ 5.) Defendants PAID and the City of Philadelphia entered into a Settlement and Release and were dismissed by stipulation on December 10, 2008. (Defs.' Resp. 1, ECF No. 5.) On February 17, 2009, Defendants TJX and NBC filed a petition for review in the Pennsylvania Superior Court. (Notice of Removal ¶ 8.) On April 5th, 2011, the Superior Court reversed that portion of the trial court's order denying summary judgment to NBC, the sole remaining non-diverse Defendant. (Superior Court Op., Not. of Removal Ex. E.) The court employed a "functional analysis" test to determine that TJX and NBC were not one company, and granted NBC summary judgment based upon tort immunity as Mr. Nele's employer. ( Id. at 15-16.) While the Superior Court was considering the case, a Pennsylvania Workers' Compensation Judge made findings of fact and conclusions of law holding that Marshalls was Mr. Nele's employer of record and penalizing the employer for illegal self-help in changing their name with the Bureau of Labor and Industry "in an effort to deprive Claimant of benefits." (Workers' Comp. Op. 11, 13, Mot. to Remand Ex. F.) On October 20, 2011, the Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal by TJX and NBC. (Notice of Removal Ex. F.) Upon remand from the Superior Court to the Court of Common Pleas of Philadelphia, TJX and Marmaxx Operating Group filed a Notice of Removal in this Court on December 15, 2011. They asserted that the timeliness of the Notice of Removal was impacted by the Plaintiffs' fraudulent joinder of NBC. (Not. of Removal ¶ 20.) Plaintiffs filed the instant Motion to Remand on January 12, 2012. TJX and Marmaxx ("Defendants") responded on January 26, 2012. (Defs.' Resp.)
II. LEGAL STANDARD
Under 28 U.S.C. § 1447(c), a case may be "remanded to state court on the basis of any defect other than lack of subject matter jurisdiction within thirty days after the filing of the notice of removal." Clerk v. Emerald Mktg., No. 10-1201, 2010 U.S. Dist. LEXIS 54555, at *3 (E.D. Pa. June 2, 2010) (citing 28 U.S.C. § 1447). It is well settled that "the Court must [ ] strictly construe the removal statutes against removal and resolve any doubts in favor of remand." Entrekin v. Fisher Scientific, Inc., 146 F.Supp.2d 594, 604 (D.N.J. 2001) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)); see also Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). When a motion to remand is filed, the burden of "establishing that the federal court has jurisdiction and [that] the notice of removal was timely filed" is on the defendant. Clerk, 2010 LEXIS 54555, at *3-4 (citing Boyer, 913 F.2d at 111); see also Rubino v. Genuardi's Inc., No. 10-6078, 2011 U.S. Dist. LEXIS 9735, at *6 (E.D. Pa. Jan. 31, 2011). The remand motion must be considered in light of the plaintiff's complaint "at the time the petition for removal was filed." Steel Valley, 809 F.2d at 1010. The district court must assume that all of the fact-based allegations of the complaint are true. Id. (citing Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983)). The question for the Court is one of jurisdiction rather than a decision on the merits of the case. Ingemi v. Pelino & Lentz, P.C., 866 F.Supp. 156, 160 (D.N.J. 1994).
A. Parties' Arguments
Plaintiffs raise three principal arguments in support of their Motion to Remand. First, Plaintiffs contend that Defendants' Notice of Removal is untimely, as it was filed after the one-year limitation period imposed by law and more than thirty days after the point at which Defendants could have ascertained that the case was removable. (Mot. to Remand 1, 17.) Second, Plaintiffs argue that the inclusion of NBC as a non-diverse party in their underlying suit was appropriate and as such, Defendants' fraudulent joinder argument should be rejected. ( Id. at 1.) Third, Plaintiffs maintain that Defendants' conduct is merely intended to delay the adjudication of this matter. ( Id. at 2.)
Defendants respond that their Notice of Removal is valid, arguing that the standard one-year limit on removal is excused by Plaintiff's fraudulent joinder of NBC and the other dismissed, settled, and fictitiously named initial parties to the matter. (Notice of Removal ¶ 20.) Defendants also argue that their Notice of Removal is within the required thirty-day time limit because the case could not be removed until it was remanded to the Court of Common Pleas from the Superior Court on December 1, 2011. ( Id. at ¶ 18.) Defendants contend that any delays in remand were caused by the fraudulent joinder of NBC, and other non-diverse Original Defendants dismissed from the matter in 2008. ( Id. at ¶ 20.) Defendants contend that the Superior Court's granting of a motion for summary judgment for NBC is evidence that Plaintiffs had no colorable claim to assert against NBC from the outset. ( Id. at ¶¶ 20, 22, 23.) In support of their argument, Defendants reference the Superior Court's decision in their Notice of Removal, where the court found that NBC enjoyed tort immunity in this case pursuant to the Pennsylvania Workers' Compensation Act ("PWCA"). ( Id. at ¶ 23.)
B. Removal and Fraudulent Joinder
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 or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." District courts have "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different States." 28 U.S.C. § 1332(a)(1). For an action arising out of diversity jurisdiction, ...