VINCENT J. ACCARDI
DUNBAR ARMORED, INC., ET AL
JOHN R. PADOVA, District Judge.
Plaintiff Vincent J. Accardi filed this negligence action in the Court of Common Pleas of Philadelphia County against Defendants Dunbar Armored, Inc. ("Dunbar"), Marcus T. Cosby, and Antoine Edwards after a car Plaintiff was driving was hit by a Dunbar armored car driven by Cosby. Edwards was a passenger in the armored car. Plaintiff and Edwards are both Pennsylvania citizens, but Dunbar nevertheless removed the case to this Court on April 8, 2013, asserting that Edwards was fraudulently joined and that we therefore have diversity jurisdiction. Presently before the Court is Plaintiff's Motion to Remand, contesting Defendants' assertion of fraudulent joinder. For the following reasons, we grant the Motion to Remand.
The Complaint alleges the following facts. On March 31, 2011, Cosby, a citizen of New Jersey, was driving an armored car, owned by Dunbar, a Maryland corporation. (Compl. ¶¶ 2-3, 9.) Edwards was Cosby's passenger, navigator, co-driver, and/or co-operator of the armored car, and was also serving as a security guard, delivery person, armored guard, and/or courier. (Id. ¶¶ 9, 52.) Both Cosby and Edwards were employees of Dunbar. (Id. ¶¶ 8-9.)
Cosby was traveling at an unsafe speed on Route 13 South when he belatedly noticed traffic stopped for a traffic signal ahead at Route 13's intersection with Beaver Dam Road in Bristol Township, Pennsylvania. (Id. ¶¶ 11-12.) At the time, Plaintiff was also driving his vehicle on Route 13, heading south. (Id. ¶ 11.) Plaintiff's car was at a complete stop in the left turn lane at the Route 13/Beaver Dam Road intersection, with its left turn signal engaged. (Id.) Cosby attempted to stop quickly to avoid a collision with the stopped traffic in front of him, and lost control of the armored car. (Id. ¶ 13.) In doing so, the armored car crossed over into the left turn lane, where Plaintiff's car was at a standstill, and crashed into the right rear of Plaintiff's car. (Id.) The impact of the collision caused Plaintiff's vehicle to spin around, forcing it into the left lane of Route 13 North, where it collided with a third vehicle that was traveling northbound on Route 13 North. (Id. ¶ 14.) Plaintiff suffered permanent life-altering injuries and his car was deemed a total loss as a result of the collision. (Id. ¶¶ 17-18.)
Following the accident, Plaintiff commenced a civil action in the Philadelphia Court of Common Pleas against Dunbar, Cosby, and Edwards, asserting claims of negligence against all three Defendants. He rests his claim against Edwards, the sole non-diverse defendant, on assertions that Edwards breached numerous duties as a passenger, including duties to help and assist the driver, to pay full attention to the road, to warn the driver of hazards, to not cause a distraction, and to inspect the armored car for mechanical problems. Defendants filed a Notice of Removal on April 8, 2013, asserting that Plaintiff had fraudulently joined Edwards in order to defeat diversity jurisdiction. On May 7, 2013, Plaintiff filed his Motion for Remand.
II. LEGAL STANDARD
"In a suit with named defendants who are not of diverse citizenship from the plaintiff, 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." In re Briscoe , 448 F.3d 201, 216 (3d Cir. 2006). However, "the removing party carries a heavy burden of persuasion" in establishing fraudulent joinder. Batoff v. State Farm Ins. Co. , 977 F.2d 848, 851 (3d Cir. 1992) (quotation and citation omitted). "Joinder is fraudulent where 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[s] or seek a joint judgment." Id . at 851 (quotation omitted).
"In evaluating the alleged fraud, the district court must focus on the plaintiff's complaint at the time the petition for removal was filed" and "must assume as true all factual allegations of the complaint." Id . at 851-52 (quotation omitted). The court must also "resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff." Id . at 852 (quotation omitted). Significantly, the court's inquiry into the validity of a complaint when faced with an assertion of fraudulent joinder is less searching than that triggered upon the filing of a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Id . Thus, we will not find a defendant's joinder to be fraudulent "[s]imply because we come to believe that, at the end of the day, a state court would dismiss the allegations against a defendant for failure to state a cause of action." Lyall v. Airtran Airlines, Inc. , 109 F.Supp.2d 365, 367-68 (E.D. Pa. 2000) (citation omitted). Rather, we will only find fraudulent joinder where the plaintiff's claims are "wholly insubstantial and frivolous.'" Batoff , 977 F.2d at 852 (quoting Lunderstadt v. Colafella , 885 F.2d 66, 70 (3d Cir. 1989)). "In other words, a finding of fraudulent joinder is usually reserved for situations where recovery from the nondiverse defendant is a clear legal impossibility." West v. Marriott Hotel Servs., Inc., Civ. A. No. 10-4130, 2010 WL 4343540, *3 (E.D. Pa. Nov. 2, 2010). "Fraudulent joinder should not be found simply because plaintiff has a weak case against a non-diverse defendant." Id . (citing Boyer v. Snap-on Tools Corp. , 913 F.2d 108, 111 (3d Cir. 1990)). "[I]f there is even a possibility that a state court would find that the complaint states a cause of action against [a] resident defendant, the federal court must find that joinder was proper...." Briscoe , 448 F.3d at 217 (quoting Batoff , 977 F.2d at 851).
If we determine that a defendant's joinder was fraudulent, we can "disregard, for jurisdictional purposes, the citizenship of [the] nondiverse defendant, assume jurisdiction over [the] case, dismiss the nondiverse defendant, and thereby retain jurisdiction." Briscoe , 448 F.3d at 216 (quoting Mayes v. Rapoport , 198 F.3d 457, 461 (4th Cir. 1999)). On the other hand, if we determine that we do not have subject matter jurisdiction over the action because joinder of the non-diverse defendant was not fraudulent, we must remand the case to state court. Id . (citing 28 U.S.C. § 1447(c)).
Plaintiff argues in his Motion that we should remand the case to the Philadelphia Court of Common Pleas because we lack diversity jurisdiction insofar as both he and Edwards are Pennsylvania citizens. (Mot. for Remand ¶ 3.) Plaintiff specifically disputes Defendants' assertion that Edwards was fraudulently joined and asserts to the contrary that he has a colorable negligence claim against Edwards. (Id. ¶¶ 4, 6, 13.) As stated above, Defendants have a "heavy burden of persuasion" when asserting that a defendant has been fraudulently joined. Briscoe , 448 F.3d at 217. Here, Defendants argue that Plaintiff has no basis in fact or colorable ground to support his claim against Edwards, because Pennsylvania law provides no right of action against Edwards, who was merely a passenger in the Dunbar vehicle.
Under Pennsylvania law, the general rule is that "a passenger owes no duty to protect third-persons or other passengers from the negligent acts of the driver." Welc v. Porter , 675 A.2d 334, 338 (Pa. Super. Ct. 1996) (citing cases). There are, however, exceptions to this general rule for circumstances in which the driver is the servant or agent of the passenger, where the driver and the passenger are engaged in a joint enterprise, and/or where the passenger had the "right to share in the control the vehicle.'" Id . at 340 (quoting Rodgers v. Saxton , 158 A. 166, 169 (Pa. 1931)). When any of these exceptions are proven, the negligence of the driver will be imputed to the passenger. Id . (quoting Rodgers , 158 A. at 169). In the instant case, Plaintiff maintains that Edwards and Cosby were not only engaged in a joint enterprise of the business of armored truck transportation, but also shared a right to control the armored car. (See Mot. for Remand ¶ 26.)
Whether or not a passenger has a right to control a vehicle is a legal question, but the resolution of that question depends upon the facts involved in any particular case. Bock v. Baker , 44 Pa. D. & C.3d 60, 68 (Armstrong Cnty. Ct. Common Pleas 1987). Notably, an individual's "right to control" is not exclusively dependent on whether the individual owns the vehicle or, absent ownership, whether the individual has the "absolute right to control who could drive [the vehicle]"; rather, the test is "who was in charge of the actual operation of the vehicle at the time of the accident." Kocher v. Creston Transfer Co. , 166 F.2d 680, 686 (3d Cir. 1948). Similarly, although an individual's "authority to direct where to drive may be taken into consideration[, ] that authority alone is insufficient to resolve the controversy." Id . (citing Harris v. E. Oostdyk Motor Transp. Corp. , 17 A.2d 347 (Pa. 1941)). In the end, the United States Court of Appeals for the Third Circuit has stated that the test as to whether a passenger has the right to control a vehicle, "[i]n pragmatic language, " is whether the passenger "has any right or authority to give orders or directions to the driver for ...