Opinion
Civil Action No. 99-2540-KHV.
June 23, 2000.
MEMORANDUM AND ORDER
Through her parents and next friends, Scharla Weber brings suit against Hays Medical Center, Inc. for medical negligence. This matter comes before the Court on Defendant Hays Medical Center, Inc.['s] Motion To Dismiss (Doc. #26) filed May 1, 2000. Defendant argues that this Court lacks subject matter jurisdiction and seeks dismissal under Fed.R.Civ.P. 12(b)(1). For reasons stated below, defendant's motion is sustained.
Factual Background
Plaintiffs allege that on or about April 30, 1998, Scharla Weber sustained permanent and catastrophic neurological damage because of the medical center's negligence. Before the alleged incident, Scharla Weber lived in Oakley, Kansas, and had been treated at facilities in Olathe and Topeka, Kansas. During that time, her parents, who are also plaintiffs in this suit, owned a home in Oakley, Kansas but lived in various apartments near Scharla Weber's treatment facilities in Olathe and Topeka. On July 8, 1999, in order to retain her Medicaid eligibility, Scharla Weber was forced to move from a hospital in Topeka to the Cedar Valley Health Care Center in Raytown, Missouri. On the same day, her parents moved into the Bowen Plaza Apartments in Raytown. To date, plaintiffs have maintained their residences in Raytown. Hays Medical Center is located in Hays, Kansas.
By affidavit, Scharla Weber's parents have indicated that they moved to Missouri on July 8, 1999, with the intent to reside there indefinitely. In Missouri, Scharla Weber's parents have registered to vote, obtained library cards, registered their van and boat, and filed a 1999 federal income tax return. On December 1, 1999, plaintiffs filed their complaint in the present action. On April 24, 2000, the Circuit Court of Jackson County, Missouri found that Scharla Weber was totally incapacitated and appointed her parents as guardians. In addition, the Missouri state court found that as of April 24, 2000, Scharla Weber was domiciled in Jackson County, Missouri.
Standard For 12(b)(1) Motion To Dismiss
The Court may only exercise jurisdiction when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D. Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan.1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of either facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citing Ohio National Life Ins. Co. v United States, 922 F.2d 320, 325 (6th Cir. 1990)). Defendant's motion falls within the latter category because it introduces evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
[A] party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Holt, 46 F.3d at 1003 (citations omitted).
Analysis
I. Defendant's Motion To Dismiss (Doc. #26)
Plaintiff alleges that this Court has diversity jurisdiction. See 28 U.S.C. § 1332. Defendant challenges the factual accuracy of plaintiff's allegations. Citizenship, for diversity jurisdiction purposes, is based on the domicile of the parties. See Stucky v. Bates, 2 F. Supp.2d 1434, 1437 (D. Kan. 1998) (citing Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983)). To establish domicile, a party must have physical presence in a location and an intent to remain there indefinitely. See Stucky, 2 F. Supp.2d at 1437 (citingMississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)). Furthermore, the law "favor[s] an established domicile over a newly acquired one." Stucky, 2 F. Supp.2d at 1437 (citing Bair v. Peck, 738 F. Supp. 1354, 1356 (D. Kan. 1990)). Diversity of citizenship is determined at the time the complaint is filed. See Stucky, 2. F. Supp.2d at 1437 (citing Freeport-McMoRan, Inc., v. K N Energy, Inc., 498 U.S. 426, 428 (1991)).
Defendant, who is domiciled in Kansas, contends that all plaintiffs were domiciled in Kansas at the time of the complaint. Because complete diversity is required, if defendant and any plaintiff had the same citizenship, diversity jurisdiction is not present. See Asselin v. Shawnee Mission Med. Ctr., 894 F. Supp. 1479, 1484 (D. Kan. 1995) (citing Knoll v. Knoll, 350 F.2d 407, 407 (10th Cir. 1965)). The Court first evaluates the domicile of Scharla Weber at the time plaintiffs filed their complaint. Before her injury on April 30, 1998, Scharla Weber had lived and had been treated in Kansas. On July 8, 1999, before the filing of the complaint, she was transferred to Cedar Valley Health Care in Missouri. Therefore, Scharla Weber satisfies the physical presence requirement to establish Missouri as her domicile.
Scharla Weber has not presented evidence, however, which suggests that at the time she filed suit she intended to make Missouri her permanent home. Plaintiffs indicate that a social worker selected the Missouri long-term care center because of a lack of appropriate facilities in Kansas. Scharla Weber has failed to show that she made this choice or intended for the Missouri facility to be her home indefinitely. Indeed, at the time the complaint was filed, she was unable to make such a choice because she was incapacitated. See 15 James Wm. Moore et al., Moore's Federal Practice § 102.37[13] (3d ed. 2000) (courts presume that incompetent "lack[s] sufficient mental capacity to change his or her own domicile"); see Coppedge v. Clinton, 72 F.2d 531, 533 (10th Cir. 1934). Given the presumption in favor of her prior domicile in Kansas, and absent evidence of her intent to change domicile, the Court concludes that Scharla Weber has not established that she was domiciled in Missouri at the time the complaint was filed.
Plaintiffs note that on April 24, 2000, Scharla Weber was declared incapacitated and her parents were appointed her legal guardians. Although guardians of an incompetent apparently may change the incompetent's domicile if it is in her best interest, see Rishell v. Jane Phillips Episcopal Mem'l Med. Ctr., 12 F.3d 171, 173 (10th Cir. 1993), plaintiffs have not shown that at the time of the complaint, Scharla Weber had a legally appointed representative who made such a choice for her.
Given that Scharla Weber and Hays Medical Center were domiciled in Kansas at the time of the complaint, the Court lacks subject matter jurisdiction to hear plaintiffs' claim. The Court need not consider the domicile of the remaining plaintiffs because complete diversity is lacking under 28 U.S.C. § 1332.
As of June 2000, Scharla Weber's parents appear to have established domicile in Missouri.
IT IS THEREFORE ORDERED that Defendant Hays Medical Center, Inc.['s] Motion To Dismiss (Doc. #26) filed May 1, 2000, be and hereby is SUSTAINED. The Court dismisses the case without prejudice for lack of subject matter jurisdiction.