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examining a decedent's domicile for diversity purposes
Summary of this case from May v. Mercy Ambulance of EvansvilleOpinion
Case No. 07-1295.
October 31, 2008
OPINION AND ORDER
This matter is before the Court on Defendant's Motion to Dismiss under Civil Rule 12(b)(1). (Doc. 15). Defendant Gallipolis Care, LLC d/b/a Arbors at Gallipolis ("Arbors") moves to dismiss Plaintiff's complaint, maintaining that diversity jurisdiction is not appropriate because both Defendant and Plaintiff's decedent, Kristy Miller, are residents of Ohio. For the reasons that follow, Defendant's motion is DENIED.
Defendant's Motion is captioned as a "Suggestion of Lack of Jurisdiction" and cites as authority Civil Rule 12(h)(3). Civil Rule 12(b)(1) is the provision authorizing the defense of lack of subject matter jurisdiction to be raised by motion, and the Court will consider Defendants' pleading as such.
I.
Kristy Miller passed away on September 23, 2005, while in the care of the Arbors of Gallipolis, a nursing home located in southern Ohio. Her mother, Plaintiff Shirley Miller, filed a complaint on behalf of her estate, and asserts that federal jurisdiction is appropriate based on the parties' diversity of citizenship. Plaintiff is a resident of West Virginia. Kristy Miller lived with her family in West Virginia until she was admitted to the Arbors in Ohio on December 2, 2003. Kristy Miller's family moved her to Ohio from West Virginia to receive treatment for a serious medical condition that included dangerous behavioral problems. A social worker helped the family find the Arbors, which had a "lockdown" unit. Plaintiff applied for and obtained Ohio Medicaid benefits to cover the cost of Kristy's care. Her family remained in West Virginia, where Kristy's body was returned for burial. Kristy's estate was probated by a West Virginia court, and her death certificate lists her address as Harrison County, West Virginia.
The Court considers the evidentiary materials attached to the parties' memoranda for the limited purpose of determining whether subject matter jurisdiction is present.
II.
Both parties note that this Court recently decided a case that presented similar issues regarding the domicile of a decedent for purposes of diversity jurisdiction. In Persinger v. Extendicare Health Services, Inc., 539 F.Supp. 2d 995, 996-97 (S.D. Ohio 2008), this Court explained the applicable law as follows:
It is well established that "[s]tate citizenship for purposes of the diversity requirement [of 28 U.S.C. § 1332] is equated with domicile." Von Dunser v. Aronoff, 915 F.2d 1071, 1072 (6th Cir. 1990). In the eyes of the law, domicile is not synonymous with a person's residence. See Kaiser v. Loomis, 391 F.2d 1007, 1009 (6th Cir. 1968). Moreover, a person can only have one domicile at a time for purposes of diversity jurisdiction — "a previous domicile can not be lost until another is adequately established." See Eastman v. Univ. of Michigan, 30 F.3d 670, 672-73 (6th Cir. 1994); see also Von Dunser, 915 F.2d at 1072. To establish new domicile, an individual must both reside in the new domicile and intend to remain there. Von Dunser, 915 F.2d at 1072. Both of these factors must be met, "either without the other is insufficient." Kaiser, 391 F.2d at 1009. Mere absence from a fixed home, however long or continued, cannot in and of itself effect a change in domicile. Id. (quoting Mitchell v. United States, 88 U.S. 350, 22 L. Ed. 584, 10 Ct. Cl. 120 (1874)). The initial burden of proving citizenship rests with the party invoking the court's jurisdiction. Once domicile is shown, however, the burden shifts to the defendant to show that domicile has changed by a preponderance of the evidence. Kaiser, 391 F.2d at 1010.
The determination of domicile presents a mixed question of fact and law. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 51 (1st Cir. 1992). When reviewing diversity-jurisdiction claims, courts typically take into account a variety of factors indicating the extent of a particular party's ties to the purported domicile. . . . Wright, Miller, and Cooper, Federal Practice and Procedure § 3612 (2d ed. 1984). No single one of these factors is dispositive, and the analysis does not focus simply on the number of contacts with the purported domicile, but also their substantive nature. See Anderson v. City of Bessememer City, 470 U.S. 564, 573, (1984).
In Persinger, the decedent was an adult, living in Ohio by choice for several weeks prior to the accident that caused his death. He was treated for his injuries in both Ohio and West Virginia, where he had lived until his move to Ohio. There was no evidence that Persinger intended to make Ohio his new domicile, and his permanent address remained in West Virginia for purposes of his bank accounts and driver's license. The Court considered the testimony of Persinger's parents, who believed that their son did not intend to stay in Ohio indefinitely.
Like Kristy Miller, Persinger received care and died at an Ohio nursing home facility, where his costs were covered by Ohio Medicaid. The Court was not persuaded that the choice to receive appropriate care and treatment that were more readily available in Ohio voided a West Virginia domicile. Persinger had no substantial contacts with the state of Ohio, and had taken no steps to disassociate himself from his West Virginia domicile.
There are few material factual distinctions between this case and Persinger. Although Kristy Miller was never declared incompetent, it is clear from the jurisdictional evidence submitted by the parties that she did not choose to live in Ohio. Rather, her placement at the Arbors was recommended by a social worker out of necessity and out of concern for Kristy's health and the safety of her family. Unlike in Persinger, Kristy Miller resided in Ohio for almost two years before her death. She took no steps to establish a permanent residence here, however, and remained in nursing home care the entire time. Moreover, the nursing home's records are in accord with Plaintiff's deposition testimony in establishing that the consistent intent was for Kristy to return to West Virginia as soon as her condition allowed.
Defendant objects to Plaintiff's reliance on hearsay statements of the decedent contained in Plaintiff's deposition testimony. The Court finds that it does not need to address this issue or to rely on hearsay, because Kristy's intent was expressed through other admissible means, including the social service progress notes attached to Plaintiff's memorandum in opposition. It is also plain that, although Kristy was not incompetent, Plaintiff made the critical decisions relating to her daughter's care, treatment, and placement. It was Plaintiff who moved Kristy to Ohio, and her intent to move Kristy back to West Virginia to live with her is persuasive on the issue of whether Kristy moved to Ohio with the intent to remain here.
The burden is on Defendant to establish that Kristy Miller intended to remain in Ohio. Kristy had no substantial, voluntary contacts with Ohio, and Defendant has not established by a preponderance of the evidence that she intended to remain in Ohio for any period of time. Kaiser, 391 F.3d at 1010. Rather, Defendant has demonstrated only that Kristy's residence changed temporarily for the limited purpose of receiving medical treatment. These facts do not establish a change in domicile for purposes of diversity jurisdiction. See Wright Miller, Federal Practice and Procedure: Jurisdiction § 3613 (2d ed. 1984).
Defendant also relies on the fact that Kristy Miller was covered by Ohio Medicaid, and that her West Virginia benefits had been "abandoned," as evidence of her intent to remain in Ohio. Plaintiff responds that it was Arbors who suggested that she apply for assistance in Ohio, and that the West Virginia benefits terminated by operation of law, not through an affirmative act on the part of Plaintiff or Kristy Miller. Regardless, residency for the purposes of receiving Medicaid or public assistance is not synonymous with domicile for purposes of diversity jurisdiction. See Persinger, generally. The Ohio code and regulations cited by Defendant use the word "resident" of Ohio in the context of eligibility for Medicaid; as discussed above, residence does not equate to domicile.
There is no dispute that Kristy Miller was temporarily a resident of Ohio while she received care at the Arbors. Her presence here, however, is only half of the standard. See Von Dunser, 915 F.2d at 1072. Defendant has not established that Kristy abandoned her West Virginia citizenship or domicile with the intent of staying in Ohio indefinitely. Accordingly, the Court finds that Kristy Miller was a citizen of West Virginia for purposes of establishing federal diversity jurisdiction under 28 U.S.C. § 1332.
III.
For the foregoing reasons, Defendant's motion to dismiss is DENIED.