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MCEACHRON v. GLANS

November 7, 1997

HOWARD J. McEACHRON, Guardian of DOUGLAS H. McEACHRON, his ward, and DOUGLAS H. McEACHRON, as ward of HOWARD J. McEACHRON, his Guardian, Plaintiffs,
v.
SHAWN R. GLANS; JAMES D. BOWEN, as Sheriff of the County of Saratoga; SARATOGA COUNTY SHERIFF'S DEPARTMENT; and COUNTY OF SARATOGA, Defendants, Third-Party Plaintiffs, Counter-Defendants and Cross-Defendants, v. TOWN OF WILTON, Third-Party Defendant, Counter-Claimant and Cross-Claimant.



The opinion of the court was delivered by: HOMER

 Presently pending is the defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Docket No. 19. Defendants contend that there did not exist diversity of citizenship between plaintiffs and defendants. For the reasons which follow, that motion is granted.

 I. Background1

 Douglas McEachron was admitted to Albany Medical Center Hospital in Albany, New York immediately following the collision. He was transferred to Hilltop Manor Nursing Home in Niskayuna, New York six weeks later. On July 23, 1996, Douglas McEachron was transferred to New England Rehabilitation Hospital (NERH) in Woburn, Massachusetts. *fn2" The transfer decision was made by his family after consultation with medical experts and their counsel. The decision was viewed from the outset as a temporary transfer of six to eight weeks for the purpose of obtaining short-term, intensive therapy for Douglas McEachron. Thereafter, he would be transferred to a long-term care facility. *fn3" The long-term care facility selected was to depend on the progress which Douglas McEachron made at NERH. Howard and Melinda McEachron intended to reside near to whatever facility was chosen for Douglas.

 Howard, Melinda and Candace McEachron moved to Woburn with Douglas. Prior to August 14, 1996, Howard and Melinda obtained Massachusetts drivers licenses, signed a one-year lease for an apartment in Woburn, opened a checking account, registered to vote, filed changes of address with the Postal Service and credit card companies, obtained telephone, cable television and power services, and moved "everything" from New York to Woburn. On July 26, 1996, a Massachusetts court appointed Howard McEachron the temporary guardian of Douglas McEachron. Candace McEachron registered for school in Woburn for the school year beginning in September. *fn4"

 Douglas McEachron remained at NERH for eleven weeks. On August 14, 1996, while Douglas McEachron remained at NERH, this action was commenced. Docket No. 1. On October 11, 1996, Douglas McEachron was transferred from NERH to Willowood Nursing Home, a long-term care facility in Williamstown, Massachusetts, *fn5" where he has remained to date. The decision to transfer Douglas McEachron to Willowood was made by Howard and Melinda McEachron at some point after August 14, 1996. Howard and Melinda McEachron determined that no facility in New York provided adequate care and treatment for an individual, like Douglas, who had suffered traumatic brain injury ("TBI"). Willowood was recommended to them by the staff at NERH as the facility closest to New York specializing in TBI and was selected for that reason. *fn6" At the same time Howard and Melinda McEachron terminated their apartment lease in Woburn and rented an apartment together under a month-to-month lease in North Adams, Massachusetts, approximately five miles east of Williamstown, where they too remain.

 II. Discussion

 The complaint alleges jurisdiction exists in this case "founded upon diversity of citizenship . . . under 28 U.S.C. § 1332." Docket No. 1 at P 1. Section 1332(a) states in pertinent part that "the district courts shall have original jurisdiction of all civil actions where the matter in controversy . . . is between -- (1) citizens of different states . . . ." For purposes of diversity jurisdiction, an individual is a citizen of the state where he or she is domiciled. Galva Foundry Co. v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991); Chappelle v. Beacon Communications Corp., 863 F. Supp. 179, 181 (S.D.N.Y. 1994). Domicile must be determined from the physical presence of an individual and the individual's intention to remain there indefinitely. Borsack v. Chalk & Vermilion Fine Arts, Ltd., 974 F. Supp. 293, 297 (S.D.N.Y. 1997); Kubin v. Miller, 801 F. Supp. 1101, 1110 (S.D.N.Y. 1992).

 Section 1332 mandates that diversity exists at the time the action is commenced. Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10 (1st Cir. 1991); Hakkila v. Consolidated Edison Co. of N.Y., Inc., 745 F. Supp. 988, 990 (S.D.N.Y. 1990). Diversity need not exist when a claim arose. Lewis v. Lewis, 358 F.2d 495, 502 (9th Cir. 1966); Bair v. Peck, 738 F. Supp. 1354, 1356 (D. Kan. 1990); Abbott v. United Venture Capital, Inc., 718 F. Supp. 823, 826 (D. Nev. 1988). If diversity did not exist when the action was commenced, it cannot thereafter be retroactively created by the change in domicile of a party. Goldsmith v. Mayor & City Council of Baltimore, 845 F.2d 61, 62 (4th Cir. 1988); Field v. Volkswagenwerk AG, 626 F.2d 293, 304 (3d Cir. 1980). If diversity existed when the action was commenced, it is not removed by the subsequent change in domicile of a party. Rosado v. Wyman, 397 U.S. 397, 405, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); Akzona, Inc. v. E.I. du Pont de Nemours & Co., 662 F. Supp. 603, 608 (D. Del. 1987). *fn7"

 A presumption exists that domicile in one state continues until another is acquired; domicile is not destroyed by mere absence from the domiciliary state. Willis v. Westin Hotel Co., 651 F. Supp. 598, 603 (S.D.N.Y. 1986). Once a party has established a domicile, the burden of demonstrating that a new domicile has been established rests with the person seeking to establish the change. National Artists Management Co., Inc. v. Weaving, 769 F. Supp. 1224, 1228 (S.D.N.Y. 1991). The party asserting a change of domicile must prove physical presence in the new domicile coupled with intent to remain indefinitely by clear and convincing evidence in order to rebut the presumption that a person retains the former domicile until acquiring a new one. Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 243 (2d Cir. 1984).

 For purposes of determining diversity jurisdiction, "the legal representative of an . . . incompetent shall be deemed to be a citizen only of the same State as the . . . incompetent." 28 U.S.C. § 1332(c)(2). There is no dispute that on March 28, 1996, Douglas McEachron was domiciled in New York and that he became incompetent on that date. Plaintiffs contend, however, that prior to the filing of the complaint on August 14, 1996, Douglas and Howard McEachron, Douglas' legal guardian, changed their domicile to Massachusetts, thus creating diversity of citizenship from the defendants.

 There exists a division of authority as to whether an individual who is or has become incompetent is capable of forming the intent necessary to change his or her domicile. A majority of the courts which have considered the issue have held that circumstances may exist where the domicile of an incompetent person may be changed by a guardian after the onset of incompetency. For example, in Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 12 F.3d 171 (10th Cir. 1993), the court held that:


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