Scutier v. King et al

Filing 22

ORDER denying without prejudice 8 Motion to Dismiss for Lack of Jurisdiction; and denying 15 Motion for Hearing or Discovery. Please see attached for details. Signed by Judge Howard D. McKibben on 12/30/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PATRICIA SCUTIER, as conservator )
of the Estate of Edward J. Gage, )
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Plaintiff,
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vs.
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LESLIE S. KING, and LORI D. KING, )
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Defendants.
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_________________________________ )

3:14-cv-00377-HDM-VPC
ORDER

Plaintiff Patricia Scutier, as conservator for the estate of

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Edward J. Gage, filed this suit against the defendants Lori and

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Leslie King on July 17, 2014.

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undue influence and exploitation, the defendants convinced the

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elderly and vulnerable Gage to purchase and then gratuitously deed

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to defendants two properties in Nevada, and that Gage lacked the

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legal capacity at the time to make such a transfer.

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filed her complaint in federal court on the basis of diversity

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jurisdiction.

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to dismiss the complaint for lack of subject matter jurisdiction,

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arguing that diversity jurisdiction does not exist.

The complaint alleges that, through

Plaintiff

On September 29, 2014, the defendants filed a motion

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Defendants are citizens of Nevada.

Under 28 U.S.C. §

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1332(c)(2), the plaintiff’s citizenship is determined by the

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citizenship of the ward, Edward Gage.

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that Gage was a resident of Idaho at the time the complaint was

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filed, defendants argue that Gage was in fact a resident of Nevada.

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Thus, they argue, as all parties were citizens of Nevada, diversity

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jurisdiction does not exist and the court otherwise does not have

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subject matter jurisdiction over this action.

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Although plaintiff alleges

At the time the complaint was filed, Gage was residing in

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Nevada, having moved there from Idaho in September 2013.

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asserts that despite this, Gage remained a resident of Idaho as he

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had lived there most of his life, retained his residence there, and

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planned only to spend the winters in Nevada, intending to return to

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Idaho in the summers.

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during a trial into his competency in December 2013 and the

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declaration of Gage’s personal attorney and guardian ad litem.

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(Doc. #12 (Ossman Decl. & Ex. 1)).

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changed his domicile to Nevada when he moved here.

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is the declaration of Lola Gage, Gage’s wife, who declares that the

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couple moved to Nevada with plans to remain there indefinitely.

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(Doc. #8 Ex. 1).

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Plaintiff

Her evidence is testimony Gage provided

Defendants assert that Gage
Their evidence

Plaintiff asserts that even if Gage changed his domicile in

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September 2013, there is a bona fide dispute as to whether he was

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legally competent to do so.

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competent to change his domicile is inextricably intertwined with a

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primary question at issue in this action: whether Gage had the

Plaintiff argues that whether Gage was

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capacity to convey the subject property to the defendants.1

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Defendants respond that plaintiff should be estopped from claiming

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Gage’s residence was in Nevada because, acting as Gage’s guardian

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and conservator, plaintiff moved the court in Idaho for permission

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to sell Gage’s Idaho property.

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concede that this issue is inextricably intertwined with the merits

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of this case and should be decided at the same time.

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Nevertheless, the defendants do

On defendants’ estoppel argument, even assuming that
plaintiff’s attempt to sell Gage’s property had the legal effect of

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changing Gage’s domicile, the evidence shows this attempted sale

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took place in August 2014 – more than a month after this lawsuit

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was filed.

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“Diversity of citizenship is determined as of the time of the

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filing of the complaint.”

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Inc., 812 F.2d 556, 557 (9th Cir. 1987).

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current record, the court is not persuaded that defendants will be

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able to prevail on their estoppel argument.

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(See Doc. #15 Scutier Decl.; Doc. #13 Exs. 2-3).

Co-Efficient Energy Sys. v. CSL Indus.,
Accordingly, on the

The court concludes that absent discovery the court is unable

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to determine whether issues of material fact exist on Gage’s

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domicile on the date the complaint was filed and whether Gage was

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legally competent to change his domicile on or before July 17,

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2014.

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jurisdiction (#8) is therefore DENIED WITHOUT PREJUDICE to renew at

The defendants’ motion to dismiss for lack of subject matter

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Plaintiff’s position in her opposition appeared to be that to the
extent there is a question of fact on the jurisdictional issue it should not
be decided at this stage of litigation given that it is closely related to
merits issues. (See Opp’n 9-10). However, plaintiff also moved the court,
in the alternative, for discovery and/or an evidentiary hearing on the issue
of Gage’s domicile, and in her reply to that motion, plaintiff’s position
is the issue should be decided now and not in conjunction with a
determination of this case on the merits.

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the close of discovery as a motion for summary judgment.

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Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

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Plaintiff’s motion for an evidentiary hearing or discovery (#15) is

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DENIED insofar as it seeks discovery separate from the discovery

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that will proceed in the normal course in this case.

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IT IS SO ORDERED.

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DATED: This 30th day of December, 2014.

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____________________________
UNITED STATES DISTRICT JUDGE

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See