TROPEPE v. AVCO CORPORATION et al

Filing 25

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO REMAND TO STATE COURT IS GRANTED AND THE CASE IS REMANDED TO THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY; ETC.. SIGNED BY HONORABLE WENDY BEETLESTONE ON 12/5/17. 12/5/17 ENTERED AND E-MAILED, COPY TO MD.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LISA A. TROPEPE,

CIVIL ACTION
Plaintiff,

v.
AVCO CORPORATION, LYCOMING
ENGINES, FLYERS, INC. AND
MICHAEL SCOTT REIMAN,
Defendants.

NO. 17-4217

MEMORANDUM OPINION
The principal question before this Court is whether Plaintiff fraudulently joined nondiverse 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 granted.
“The 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 Cir. 1992).
Joinder 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.
Plaintiff here provides a reasonable basis in fact supporting her claim against at least one
non-diverse Defendant, Reiman, under Florida law.1 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

1

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.

2

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.2 See
Lincoln Property Co., 546 U.S. at 89.
In sum, AVCO and Lycoming have not met their heavy burden in showing that the nondiverse 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)).
An appropriate order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.
_______________________________
WENDY BEETLESTONE, J.
Date: 12/05/17

2

Because Plaintiff has at least one colorable claim against a non-diverse defendant, analyzing whether Plaintiff has
a colorable claim against Flyers Inc. is unnecessary.

3