United States District Court, M.D. Pennsylvania
before the Court is Plaintiffs Jane Suter and Michael
Suter's motion to remand the above-captioned action to
the Dauphin County Court of Common Pleas on the basis that
Defendants' removal to this Court pursuant to 28 U.S.C.
§ 1441(b) was improper. (Doc. No. 5.) For the reasons
that follow, the Court will grant the motion.
17, 2017, Plaintiff Jane Suter entered a store owned and
operated by Defendant Speedway LLC (“Speedway”).
(Doc. No. 1-2 ¶ 6.) During the course of purchasing
groceries, Plaintiff Jane Suter fell over an inventory bin
that was partially hidden behind a display rack, landing on
her right elbow when she fell. (Id. ¶¶
7-10.) Plaintiff Jane Suter suffered serious injuries as a
result of the fall. (Id. ¶ 13.)
Jane Suter subsequently initiated this action along with
Plaintiff Michael Suter by filing a complaint with the
Dauphin County Court of Common Pleas on May 28, 2019. (Doc.
No. 1-2.) The complaint alleges claims for premises liability
against Speedway and Defendant Sandra Macfaline (“Ms.
Macfaline”), a manager at the Speedway store in
question, in addition to a claim for loss of consortium on
behalf of Plaintiff Michael Suter. (Id.) Both
Plaintiffs, as well as Ms. Macfaline, are residents of
Pennsylvania. (Id. ¶¶ 1, 3.) Nonetheless,
Defendants filed a notice of removal with this Court on July
17, 2019, pursuant to 28 U.S.C. §§ 1441(b) and
1446, asserting that this Court has original jurisdiction
over the matter pursuant to 28 U.S.C. § 1332. (Doc. No.
1 ¶¶ 12-14.) Defendants maintain that diversity
jurisdiction exists because Speedway is a Delaware Limited
Liability Company with its principal place of business in
Ohio. (Id. ¶ 28.) With regard to the amount in
controversy, Defendants note that Plaintiffs demanded $650,
000 to settle the matter. (Id. ¶¶ 19, 24.)
Additionally, while Defendants acknowledge that Ms. Macfaline
is a citizen of the Commonwealth of Pennsylvania, they argue
that Plaintiffs fraudulently joined Ms. Macfaline as a
defendant in this case for the sole purpose of defeating
diversity jurisdiction, and that, therefore, subject matter
jurisdiction is appropriate in this Court. (Id.
¶¶ 25-41.) Plaintiffs timely filed a motion to
remand the case to the Dauphin County Court of Common Pleas
on August 5, 2019, pursuant to 28 U.S.C. § 1447 (Doc.
No. 5), as well as a brief in support (Doc. No. 6).
Defendants filed a brief in opposition on August 19, 2019.
(Doc. No. 8.) Having been fully briefed, the motion is now
ripe for disposition.
by a defendant is appropriate in “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.” See
28 U.S.C. § 1441(a). “The propriety of removal
thus depends on whether the case originally could have been
filed in federal court.” City of Chicago v.
Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997). A
removed action must be remanded “[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction.” See 28
U.S.C. § 1447(c). Moreover, §1441 is to be strictly
construed against removal. See Boyer v. Snap-On Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990). Accordingly,
all doubts must be resolved in favor of remand. Id.
removal is based on diversity of citizenship, the removing
party must be able to demonstrate complete diversity of
citizenship between parties and that the amount in
controversy exceeds $75, 000. See 28 U.S.C. §
1332. To establish complete diversity, “no plaintiff
can be a citizen of the same state as any of the
defendants.” See Johnson v. Smithkline Beecham
Corp., 724 F.3d 337, 346 (3d Cir. 2013). However,
“[i]n 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.”
See In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006).
noted above, Defendants removed this action to federal court
on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. (Doc. No. 1 ¶ 14.) Defendants assert that
removal is appropriate because Ms. Macfaline, the only
non-diverse defendant, was fraudulently joined. (Id.
¶ 25.) Plaintiffs' Motion to Remand disputes the
assertion that Ms. Macfaline was fraudulently joined. (Doc.
No. 5.) Importantly, “the person asserting jurisdiction
bears the burden of showing that the case is properly before
the court at all stages of the litigation.” See
Packard v. Provident Nat. Bank, 994 F.2d 1039, 1045 (3d
Cir. 1993). Where the removing party asserts fraudulent
joinder, the party carries a “heavy burden of
persuasion.” See Batoff v. State Farm Ins.
Co., 977 F.2d 848, 851 (3d Cir. 1992).
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.” See
id. (citing Abels v. State Farm Fire & Cas.
Co., 770 F.2d 26, 32 (3d Cir. 1985)). In assessing the
validity of the complaint against the non-diverse defendant,
the Court's analysis is not the same as that which would
inform a ruling on a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). See id. at 852. To
the contrary, Third Circuit precedent clearly establishes
that when making a jurisdictional determination it is
inappropriate for the Court to inquire further into the legal
merits of a claim than is necessary to discern whether enough
authority supports the existence of a cause of action under
state law.See Briscoe, 448 F.3d at 219
(citing Abels, 770 F.2d at 32-33). Indeed, the Third
Circuit has made clear that the fact that a case may later be
dismissed by a state court does not make a claim frivolous
for jurisdictional purposes. See Batoff, 977 F.2d at
853 (stating that “[a] claim which can be dismissed
only after an intricate analysis of state law is not so
wholly insubstantial and frivolous that it may be disregarded
for purposes of diversity jurisdiction.”).
argue that Plaintiffs have not pled colorable claims against
Ms. Macfaline under either an individual negligence theory of
liability or a participation theory. (Doc. No. 1 ¶¶
37-41.) In support of this argument, Defendants point to the
fact that Plaintiffs incorporate by reference allegations
from Count I of the complaint against Speedway into Count II
of the complaint against Ms. Macfaline. (Id. ¶
38.) Defendants claim that Plaintiffs' complaint
“lacks any specific allegations that Sandra
Macfaline…caused or contributed to plaintiff's
damages.” (Id. ¶ 39.) However, the
Court's review of the complaint reveals that it contains
allegations against Ms. Macfaline. (Doc. No.
law clearly allows plaintiffs to assert claims against
employees for their own torts. See Cosmas v.
Bloomingdales Bros., Inc., 660 A.2d 83, 89 (Pa. Super.
Ct. 1995). Additionally, corporate actors can incur liability
under the participation theory, in which officers who
participate in the wrongful acts of a corporation may be
personally liable for misfeasance. See Wicks v. Milzoco
Builders, Inc., 470 A.2d 86, 90 (Pa. 1983); see also
Aldorasi v. Crossroads Hosp. & Mgmt. Co., LLC, 344
F.Supp.3d 814, 822 (E.D. Pa. 2018) (stating that “state
and federal courts in Pennsylvania courts have routinely
applied the [participation] theory to employees and other
non-officer agents” (internal citations omitted)).
Further, the facts and allegations in the present case are
directly analogous to many cases from both this Court and
other federal courts in Pennsylvania where the fraudulent
joinder argument failed to prevent remand. See Gardler v.
Wal-Mart Stores, Inc., No. 18-4689, 2019 WL 2489691, at
*6 (E.D. Pa. June 12, 2019) (finding remand appropriate where
the complaint alleged that a store manager “caus[ed]
and/or permit[ted] a dangerous and hazardous condition to
exist”); Waas v. Cargill Meat Sols. Corp., No.
3:17-CV-838, 2018 WL 521588, at *3 (M.D. Pa. Jan. 23, 2018)
(granting a motion to remand where the plaintiff asserted a
negligence claim against a non-diverse supervisor even though
the claim was generally alleged against all defendants);
Gaynor v. Marriott Hotel Servs., Inc., No. 13-3607,
2013 WL 4079652, at *4 (E.D. Pa. Aug. 13, 2013) (holding that
for purposes of a jurisdictional inquiry, a plaintiff
adequately alleged a manager's participation where the
complaint averred that the manager “creat[ed] an
unreasonably dangerous condition on the premises”);
Greenberg v. Macy's, No. 11-4132, 2011 WL
4336674, at *5 (E.D. Pa. Sept. 15, 2011) (holding that the
allegation that all defendants, including individual
managers, created the condition that caused the
plaintiff's injury was sufficient to plead a colorable
case); Beck v. Albertson's, Inc., No. 05-5064,
2005 WL 3111782, at *3 (E.D. Pa. Nov. 21, 2005) (holding that
the plaintiff stated a colorable claim against a store
manager even though the manager was not working at the time
of the accident). Here, Plaintiffs' complaint alleges
that Ms. Macfaline created the condition that caused
Plaintiff Jane Suter's injury. (Doc. 1-2 ¶ 12.)
Therefore, the Court cannot conclude that Plaintiffs'
claims against Ms. Macfaline are “wholly insubstantial
and frivolous” for purposes of a jurisdictional
also argue that Plaintiffs did not join Ms. Macfaline in good
faith. (Doc. No. 1 ¶ 40.) Defendants point to nothing to
support this argument other than a belief that the drafting
of Plaintiffs' complaint is deficient. (Id.)
However, courts have found that service of process on a
defendant is sufficient to demonstrate an intention to
prosecute an action against that defendant. See
Gaynor, 2013 WL 4079652, at ...