United States District Court, E.D. Pennsylvania
issue in this products liability action, which was removed
from the state court on the basis of diversity jurisdiction,
is whether two of the three defendants were fraudulently
joined to defeat diversity. If they were, there is no
diversity jurisdiction and the case must be remanded.
Carl Boyle suffered amputation injuries to his fingers when
the table saw he was using kicked back. He and his wife,
Pennsylvania citizens, have named as defendants Grizzly
Industrial PA, Inc. (Grizzly PA) and Grizzly Industrial, Inc.
(Grizzly Industrial) as the designers and manufacturers of
the table saw, and Tinius Olsen International Company (Tinius
International) as the supplier of the table
Grizzly PA and Tinius International are Pennsylvania
removing the action, Grizzly Industrial contends that Grizzly
PA and Tinius International were fraudulently
joined. It asserts that Grizzly PA is a
non-existent entity and Tinius International had no personal
involvement with the accident. The Boyles have moved to remand,
maintaining that Grizzly PA and Tinius International,
Pennsylvania citizens, are properly named defendants.
diversity jurisdiction to exist, the opposing parties must be
citizens of different states and the amount in controversy
must exceed $75, 000. No. plaintiff can be a citizen of the
same state as any defendant. 28 U.S.C. § 1332(a); GB
Forefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d
29, 34 (3d Cir. 2018). When removal is based on diversity,
complete diversity between the parties must have existed when
the complaint was filed and at the time of removal. In re
Lipitor Antitrust Litig., 855 F.3d 126, 150-51 (3d Cir.
removing defendant establishes that a non-diverse defendant
was fraudulently joined, the court disregards the citizenship
of the non-diverse defendant for the purpose of determining
diversity of citizenship and dismisses the non-diverse
defendant. In re Briscoe, 448 F.3d 201, 216 (3d Cir.
2006). On the other hand, if the court determines that
joinder was not fraudulent, it must remand. Id.
(citing 28 U.S.C. § 1447(c)).
is fraudulent only where there is no reasonable factual or
“colorable” legal basis to support the claim
against the non-diverse defendant or the plaintiff has no
real intention of pursuing the action against that defendant.
Brown v. JEVIC, 575 F.3d 322, 326 (3d Cir. 2009)
(citing In re Briscoe, 448 F.3d at 216); see
also Hogan v. Raymond Corp., 536 Fed.Appx. 207, 210 (3d
Cir. 2013). Any uncertainty as to the controlling substantive
law is resolved in favor of the plaintiff. The possibility
that the state court might find that the complaint states a
cause of action against the non-diverse defendant requires
remand. JEVIC, 575 F.3d at 326 (quoting In re
Briscoe, 448 F.3d at 217). Unless the claim is
“wholly insubstantial and frivolous, ” joinder
will not be deemed fraudulent. In re Briscoe, 448
F.3d at 218 (quoting Batoff v. State Farm Ins. Co.,
977 F.2d 848, 852 (3d Cir. 1992)). Hence, only where it is
clear that the plaintiff cannot possibly recover from the
non-diverse defendant will the joinder be deemed fraudulent.
fraudulent joinder inquiry focuses on the complaint at the
time of removal, accepting the factual allegations as true.
JEVIC, 575 F.3d at 326 (quoting In re
Briscoe, 448 F.3d at 217). Nevertheless, it may be
necessary to look beyond the complaint, but only to the
extent that it bears on the threshold jurisdictional inquiry.
We do not conduct a merits inquiry. Nor can we consider the
merits of a defense. In re Briscoe, 448 F.3d at 218
(citing Boyer v. Snap-on Tools Corp., 913 F.2d 108,
112-13 (3d Cir. 1990)).
removing party has a heavy burden of persuading a court that
joinder is fraudulent. JEVIC, 575 F.3d at 326;
Batoff, 977 F.2d at 851 (citation omitted). This
heavy burden is imposed to effectuate the strong presumption
against removal jurisdiction. Batoff, 977 F.2d at
851 (quoting Steel Valley Author. v. Union Switch &
Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987));
JEVIC, 575 F.3d at 326.
Industrial PA, Inc.
Industrial maintains there is “no reasonable basis in
fact” or “colorable ground” supporting
claims against Grizzly PA because it has not existed for over
twenty years. It relies on the affidavit of its Chief
Financial Officer, Don Osterloh, and a screenshot of the
Pennsylvania Department of State website for Grizzly
The Department of State website lists Grizzly PA's status
as “Withdrawn-CONSOLIDATED INACTIVE” and dates
the Articles of Merger and Consolidation as December 31,
conducting a fraudulent joinder analysis, we may consider
records from prior proceedings and matters subject to
judicial notice. In re Briscoe, 448 F.3d at 220. We
may take judicial notice of information posted on the
Pennsylvania Department of State website. See, e.g.,
Landair Transp., Inc. v. Del's Truck & Auto
Repair, Civ. A. No. 17-CV-0723, 2018 WL 950208, at *2
n.1 (M.D. Pa. Feb. 20, 2018) (taking judicial notice of facts
contained in the Pennsylvania Department of State website);
Hall v. Kingston, Civ. A. No. 17-543, 2017 WL
1225054, at *2 (E.D. Pa. Mar. 31, 2017) (citing the
Pennsylvania Department of State website in taking judicial
notice of a charity's location); Corner Pocket, Inc.
v. Travelers Ins., Civ. A. No. 12-288, 2013 WL 3993967,
at *1 n.2 (W.D. Pa. Aug. 5, 2013) (judicially noticing
records from the Pennsylvania Department of State online
database). We may also consider supporting documents such as
affidavits. See, e.g., Yellen v. Teledne
Cont'l Motors, Inc., 832 F.Supp.2d 490, 503 (E.D.
Pa. 2011); Susman v. Goodyear Tire & Rubber Co.,
Civ. A. No. 17-3521, 2018 WL 1243733, at *7 (E.D. Pa. Mar. 9,
2018); 16-107 James Wm. Moore, Moore's Federal Practice
§ 107.52 (2018). In doing so, we must keep in mind that
we may not conduct a merits inquiry or consider the merits of
Pennsylvania Department of State records indicate Grizzly PA
is an inactive Pennsylvania corporation, having merged with
another entity. It does not indicate with whom Grizzly PA
merged, nor does Grizzly Industrial provide a certification
of the merger. Instead, it relies on Osterloh's
declaration that Grizzly PA merged with Grizzly Industrial, a
Washington corporation. Because Osterloh's ...