Iantosca et al v. Benistar Administrative Services, Inc et al

Filing 357

Judge Nathaniel M. Gorton: ORDER entered denying 298 MOTION to Dismiss for Lack of Jurisdiction. Please see order for details. (Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
JOSEPH IANTOSCA, Individually
)
and as Trustee of the Faxon
)
Heights Apartments Realty Trust )
and Fern Realty Trust, BELRIDGE )
Civil Action No.
CORPORATION, GAIL A. CAHALY,
)
08-11785-NMG
JEFFREY M. JOHNSTON, BELLEMORE
)
ASSOCIATES, LLC, and
)
MASSACHUSETTS LUMBER COMPANY,
)
INC.,
)
Plaintiffs,
)
)
v.
)
)
BENISTAR ADMIN SERVICES, INC.,
)
DANIEL CARPENTER, MOLLY
)
CARPENTER, BENISTAR PROPERTY
)
EXCHANGE TRUST COMPANY, INC.,
)
BENISTAR LTD., BENISTAR EMPLOYER )
SERVICES TRUST CORPORATION,
)
CARPENTER FINANCIAL GROUP, LLC, )
STEP PLAN SERVICE INC., BENISTAR )
INSURANCE GROUP, INC., and
)
BENISTAR 419 PLAN SERVICES INC., )
Defendants,
)
TRAVELERS INSURANCE COMPANY and )
CERTAIN UNDERWRITERS AT LLOYD’S, )
)
LONDON,
)
Reach and Apply
)
Defendants.
________________________________ )
)
CERTAIN UNDERWRITERS AT LLOYD’S, )
)
LONDON and All Participating
)
Insurers and Syndicates,
Third-Party Plaintiff, )
)
)
v.
)
)
WAYNE H. BURSEY,
Third-Party Defendant. )
________________________________ )
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ORDER
GORTON, J.
Plaintiffs filed their complaint in this case in the
Massachusetts Superior Court on October 23, 2008 pursuant to the
Massachusetts reach and apply statute, M.G.L. c. 214, § 3(6).
Defendants filed a notice of removal the same day invoking this
Court’s diversity jurisdiction.

Now, more than three years

later, the defendants move to dismiss for lack of subject matter
jurisdiction, alleging that supposedly new jurisdictional facts
have come to their attention which give rise to a “possible lack
of diversity of citizenship.”
In a separate argument, expounded upon in their reply to
plaintiffs’ objection to the motion to dismiss, the defendants
raise new objections based upon an alleged lack of standing:
defendants contend that Joseph Iantosca, Sr., the lead plaintiff
in this action, lacked standing to sue in either an individual or
representative capacity because, at the time the suit was filed,
he was under the guardianship of his two sons due to his mental
illness.1
The Court is satisfied, based upon plaintiffs’ response,
1

According to the order of the Massachusetts Probate
Court, which was attached as an exhibit to the defendants’ motion
to dismiss, Mr. Iantosca suffers from Vascular Dementia, a
neuropsychiatric disorder that causes “difficulty with memory,
problem-solving, planning and judgment among other emotional,
cognitive and behavioral difficulties.”
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that defendants’ speculations regarding diversity are without
merit.

The Court notes that the defendants themselves, in their

notice of removal more than three years ago (and before the
parties and the Court had become fully immersed in this case)
represented that plaintiffs were all citizens of Massachusetts
and New Hampshire at the time this matter was filed and thus
diverse from the defendants.

Therefore, the defendants’ Motion

for Order to Show Cause or to Dismiss or Remand to State Court
for Lack of Subject Matter Jurisdiction (Docket No. 298) is
DENIED.
With respect to the separate guardianship matter, however,
the Court directs plaintiffs to respond to the defendants’
allegations regarding Mr. Iantosca’s standing to sue either in
his individual capacity or through his guardians.

The response

shall not exceed five pages and shall be filed on or before
Wednesday, February 1, 2012.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated January 27, 2012

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