United States District Court, E.D. Pennsylvania
LISA A. TROPEPE, Plaintiff,
AVCO CORPORATION, LYCOMING ENGINES, FLYERS, INC. AND MICHAEL SCOTT REIMAN, Defendants.
principal question before this Court is whether Plaintiff
fraudulently joined non-diverse Defendants to defeat
federal-court jurisdiction. Plaintiff Lisa Tropepe, a citizen
of Florida, filed suit in the Court of Common Pleas of
Philadelphia County against Defendants AVCO Corporation,
Lycoming Engines, Flyers, Inc., and Michael Scott Reiman
after her husband died when the Piper PA-280189 aircraft he
was piloting crashed as he tried to land at an airport in
Palm Beach. Defendants AVCO and Lycoming Engines removed the
case to this Court on diversity grounds. 28 U.S.C. §
1441(b). Plaintiff moves to remand for lack of subject matter
jurisdiction because, as stated in AVCO and Lycoming
Engines' Notice of Removal, both Flyers, Inc. and Reiman
are citizens of Florida which destroys complete diversity
among the parties. See 28 U.S.C. § 1332(a);
Lincoln Property Co. v. Roche, 546 U.S. 81, 89
(2005) (“[T]he statutory formulation ‘between . .
. citizens of different states' requires complete
diversity between all plaintiffs and all defendants.”).
AVCO and Lycoming Engines contest remand on the theory that
Plaintiff fraudulently joined Flyers, Inc. and Reiman. For
the reasons that follow, Plaintiff's motion shall be
doctrine of fraudulent joinder represents an exception to the
requirement that removal be predicated solely upon complete
diversity.” In re Briscoe, 448 F.3d 201,
215-16 (3d Cir. 2006). If a lawsuit names non-diverse
defendants, “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.
Here, the diverse defendants, AVCO and Lycoming Engines, bear
a “heavy burden of persuasion, ” for removal
statutes are “strictly construed against removal and
all doubts . . . resolved in favor of remand.” See
Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 (3d
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.” In re Briscoe, 448 F.3d at 216
(internal quotation marks omitted). The question, in short,
is whether a plaintiff's claims are “wholly
insubstantial and frivolous.” Batoff, 977 F.2d
at 852. However, “if there is even a possibility that a
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
the case to state court.” Id. at 851. The
inquiry here is limited to “the plaintiff's
complaint at the time the petition for removal was filed,
” and the factual allegations of the complaint must be
assumed to be true. Id. at 851-52.
here provides a reasonable basis in fact supporting her claim
against at least one non-diverse Defendant, Reiman, under
Florida law. According to Plaintiff's allegations,
Reiman continuously performed work on the aircraft for many
years until the date of the accident. Plaintiff also avers
that he serviced the airframe and engine repeatedly, but
failed to notice the defects of the airplane engine. Thus, as
to Reiman, Plaintiff has stated a colorable negligence claim,
which requires “(1) a duty by defendant to conform to a
certain standard of conduct; (2) a breach by defendant of
that duty; (3) a causal connection between the breach and
injury to plaintiff; and (4) loss or damage to
plaintiff.” Clay Elec. Co-Op., Inc. v.
Johnson, 873 So.2d 1182, 1185 (Fla. 2003). Under
Plaintiff's theory of liability, Reiman had a duty to
exercise reasonable care in maintaining the aircraft and that
his failure to do so caused her husband's death. Because
Plaintiff, a Florida resident, states a colorable claim
against Reiman, also a Florida resident, there is no complete
diversity to support federal-court
jurisdiction. See Lincoln Property Co., 546
U.S. at 89.
AVCO and Lycoming have not met their heavy burden in showing
that the non-diverse Defendants, Flyers, Inc. and Reiman,
were fraudulently joined. The matter shall therefore be
remanded to state court. See In re Briscoe, 448 F.3d
at 216 (citing 28 U.S.C. § 1447(c)).
appropriate order follows.
 Although a federal court sitting in
diversity must usually apply the choice of law rules of the
state in which it sits, Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941), such an inquiry is not
allowed at the fraudulent joinder stage because diversity
jurisdiction has not been established yet. Abels v. State
Farm Fire and Cas. Co., 770 F.2d 26, 33 n.10 (3d Cir.
1985). Without conducting Pennsylvania's choice of law
analysis, the Court concludes that Florida's law is a
colorable source of applicable law because the accident at
issue occurred there.
 Because Plaintiff has at least one
colorable claim against a non-diverse defendant, analyzing
whether Plaintiff has a colorable claim against ...