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CONNOLLY v. SPIELMAN

March 20, 1998

ANNE CONNOLLY, Plaintiff,
v.
CONNIE SPIELMAN, GURSHARN S. RAKHRA, COLCHESTER HEALTH CENTER, RAUL GRINBERG, G. TUFAU and DELAWARE VALLEY HOSPITAL, Defendants.



The opinion of the court was delivered by: MCAVOY

 In this diversity action for medical malpractice, defendants Connie Spielman, Gursharn Rakhra and Delaware Valley Hospital (hereinafter "defendants") move to dismiss the Complaint, for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). All defendants are New York citizens.

 I. Background

 Plaintiff Anne Connolly was born (in 1945), raised and attended high school in the state of Pennsylvania. Def. Ex. K at 1-2. She moved to New York State in 1980. Pl. Dep. at 134. She has taught high school math at the Downsville Central School in Downsville, New York since 1985. Id. at 4, 66.

 In June of 1995, however, plaintiff decided to take a leave of absence from her job and returned to Swoyersville, Pennsylvania to care for her ailing mother and look for work. Pl. Aff. P 4; Pl. Dep. at 49, 66. When she left Downsville, she took all her personal belongings with her. Pl. Aff. 4. Moreover, despite the leave of absence, she maintains that she was going to stay in Pennsylvania and had no intent to return to New York. Id. PP 4, 6.

 Eventually, however, her mother's health improved and plaintiff decided to get an advanced teaching certificate from a college in New Mexico. Pl. Aff. P 6; Pl. Dep. at 50. She planned on returning from New Mexico after one year to look for a teaching job in Pennsylvania. Pl. Aff. P 6; Pl. Dep. at 23-24. Plaintiff left for New Mexico in August of 1995. *fn1"

 In January of 1996, while still in New Mexico, plaintiff discovered she had breast cancer. Pl. Aff. P 7. She moved back to Swoyersville the next month and was treated by an oncologist in Wilkes-Barre, Pennsylvania, where she also underwent chemotherapy. Id. P 8; Pl. Dep. at 50-51. At that time, she also began staying with her sister in Wilkes-Barre. Pl. Aff. P 8. In March of 1996, plaintiff obtained a Pennsylvania driver's license, registered her car in Pennsylvania, and obtained car insurance from a Pennsylvania insurance agent. Pl. Aff. P 11 and Exs. 1-2; Pl. Dep. At 133; Def. Ex. M at 1-2. The same month, plaintiff registered to vote in the Swoyersville Borough of Luzerne County, Pennsylvania. Pl. Aff. P 12 and Ex. 3. *fn2" She also joined a cancer support group at Nesbitt Hospital in Kingston, Pennsylvania. Pl. Aff. P 10.

 Plaintiff had a mastectomy in Kingston on July 31, 1996. Pl. Aff. P 9. She returned to her teaching position in Downsville in September, but alleges she did so only out of economic necessity; she couldn't find work anywhere else, and the Downsville position provided health insurance coverage. Pl. Aff. P 9; Pl. Dep. at 34. Nonetheless, she maintains that her plan to continue to reside in Pennsylvania and take care of her mother remained unchanged. She did not rent an apartment in Downsville, but rather rented space in a friend's home where she stayed during the week. Pl. Aff. PP 14-15; Pl. Dep. at 34-35. On weekends (when her health permitted) she would return to her mother's house in Swoyersville. *fn3" Pl. Aff. P 15; Pl. Dep. at 52.

 Since plaintiff returned to her job in Downsville in the fall of 1996, her primary medical care has been at Lourdes Hospital in Binghamton, New York. Pl. Dep. at 54. From September of 1996 until August of 1997, the only medical care plaintiff received in Pennsylvania was on one occasion in December of 1996. Id.

 Plaintiff filed this action on January 24, 1997, alleging, inter alia, that defendants failed to diagnose her breast cancer when they treated her in the summer of 1995.

 II. Discussion

 Defendants move to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. The Court first notes that the motion is untimely under the PreTrial Scheduling order, which requires that jurisdictional motions be filed by August 9, 1997. Nonetheless, the Court will consider the motion. The Scheduling Order notwithstanding, it is well-settled that challenges to the Court's subject matter jurisdiction are not waivable and can be raised at any time. See Fed.R.Civ.P. 12(h)(3); Transatlantic Marine Claims Agency, Inc., 109 F.3d 105, 107 (2d Cir. 1997); Gilman v. BHC Securities, Inc., 104 F.3d 1418, 1420 (2d Cir. 1997).

 Because this is an action in diversity, subject matter jurisdiction will exist if the amount in controversy exceeds $ 75,000, "exclusive of interests and costs," and the dispute is between "citizens of different states." See 28 U.S.C. ยง 1332(a)(1). Our focus is on the second requirement: defendants contend that because all the parties in this action, including plaintiff, are New York citizens, the dispute is not between citizens of different states. Plaintiff contends she is a citizen of Pennsylvania.

 For diversity purposes, citizenship is determined at the time an action is commenced. See Freeport-McMoran v. K N Energy, Inc., 498 U.S. 426, 429, 112 L. Ed. 2d 951, 111 S. Ct. 858 (1991); Maryland Casualty Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d Cir. 1993), cert. denied, 513 U.S. 1052, 130 L. Ed. 2d 559, 115 S. Ct. 655 (1994). Moreover, the operative term of art in determining a party's citizenship is "domicile." See Newman-Green, Inc. V. Alfonzo-Larrain, 490 U.S. 826, 828, 104 L. Ed. 2d 893, 109 S. Ct. 2218 (1989); Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986). Domicile has two elements: physical presence in a place and a state of mind evincing an intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989). Domicile "'is the place where [a person] has [her] true, fixed home and principal establishment, and to which, whenever she is absent, she has the intention of returning.'" National Artists Management Co. V. Weaving, 769 F. Supp. 1224, 1228 (S.D.N.Y. 1991) ...


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