Free Memorandum and Order - District Court of Delaware - Delaware

Case 1 :05-cv—00425-GIVIS Document 14 Filed 10/28/2005 Page 1 of 3
` IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ELIZABETH McKENNA, AND )
JOHN J. McKENNA, )
Plaintiffs, )
v. ) C.A. No. 05-425 GMS
NCL AMERICA INC., AND )
NCL CORPORATION LTD., )
Defendants. )
MEMORANDUM
The above—captioned negligence action arose from injuries allegedly suffered by Plaintiff
Elizabeth McKenna on the cruise ship Norwegian Crown. The Plaintiffs originally filed suit in
Delaware Superior Court, however the Defendants subsequently removed the case to this court,
pursuant to 28 U.S.C. § 1441(a) (1994), on the basis of diversity jurisdiction, 28 U.S.C. § 1332
(2005). (D.I. 1 at 1.) Although the Plaintiffs and Defendant NCL America, Inc. ("NCL Arnerica")
are all citizens of Delaware, the Defendants argue that complete diversity exists because NCL
America was fraudulently joined in order to defeat subj ect matter jurisdiction in federal court. (Id.
at 2.) Presently before the court is the Plaintiffs’ motion to remand (D.I. 7) and the Defendants’
motion to dismiss (D.I. 5).
"[J]oinder 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 or seek a j oint j udgment." Boyer v. Sm1p—On Tools Corp., 913 F.2d 108,
111 (3d Cir. 1990) (citations omitted). "Because a party who urges jurisdiction on a federal court
bears the burden of proving that jurisdiction exists, a removing party who charges that a plaintiff has

Case 1:05-cv—00425-G|\/IS Document 14 Filed 10/28/2005 Page 2 of 3
fraudulently joined a party to destroy diversity of jurisdiction has a heavy burden of persuasion."
Id. (citations omitted). Thus, "[i]f 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 (citations omitted).
In this case, the Defendants’ fraudulent-j oinder argument is based, in part, upon its assertion
that there was no privity of contract between NCL America and the Plaintiffs. (D.I. l at 3.)
However, the contract at issue, entitled "Passenger Ticket Contract," reads as follows:
For the purpose of this Contract the term "Carrier" shall include NCL (Bahamas) Ltd.
d/b/a NCL and/or NCL America, its desi gnees, assigns, successors or affiliates, the
named vessel, any substituted vessel, and its or their tenders, launches and related
facilities. The rights, defenses, immunities and limitations of liability set forth herein
shall inure to the benefit of the Carrier and all concessionaires, independent
contractors or other service providers; any affiliated or related companies, parents,
subsidiaries, successors, assigns or fictitiously named entities; all suppliers,
shipbuilders, component part manufacturers; and its or their owners, operators,
managers, characters, agents, pilots, officers, crew, and employees.
(D.I. 5, Attach. 5, Ex. l at 2 (emphasis added).) The Defendants explain that this extremely
comprehensive provision of the Passenger Ticket Contract, which makes explicit reference to NCL
America (and implicit reference to the remainder of the cruise-ship world), is "a standard, form
contract that is used by both NCL (Bahamas) and NCL America" in order to "minimize printing
costs." (D.I. l l at 7-8.) In spite of this explanation (devoid of legal citation), the court believes there
is "a possibility that a state court would find that the complaint states a cause of action against" NCL
America. Rather than forcing the Defendants to incur further printing costs, the court will waste no
more paper explaining its rationale and permit the obviousness of this conclusion to speak for its lf
Dated: October , 2005
UNI ST TES IST G
F 1 L E D
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Case 1:05-cv—00425-G|\/IS Document 14 Filed 10/28/2005 Page 3 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ELIZABETH McKENNA, AND )
JOHN J. McKENNA, ) .
Plaintiffs, ;
v. 3 C.A. No. 05-425 GMS
NCL AMERICA INC., AND 3
NCL CORPORATION LTD., )
Defendants. 3
ORDER
IT IS HEREBY ORDERED THAT:
l. The Plaintiffs’ motion to remand (D.I. 7) be GRANTED;
2. The Defendants’ motion to dismiss (D.I. 5) be DENIED as moot;
3. The Defendants’ request for oral argument (D.I. l2) be DENIED as moot; and
4. The case be REMANDED to Delaware Superior Court.
Dated: October BJ 2005
ED S ATES DISTRICT IUDG
F I L E D
OCT 2 8 2005
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