Bernheisel v. Mikaya et al
Filing
110
OPINION AND ORDER - THAT an evidentiary hearing on Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P 12(b)(1) (Doc. 95) will be held on Friday, November 20,2015, at 1:30 p.m.Signed by Honorable Robert D. Mariani on 10/22/15. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TAMI BERNHEISEL
Plaintiff,
v.
3:13-CV-01496
(JUDGE MARIANI)
MARTIN MIKAYA, M.D., et al.
Defendants.
OPINION AND ORDER
I. Introduction
Presently before the Court is Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P
12(b)(1) (Doc. 95) to which Plaintiff has filed a response and brief in opposition (Docs. 102,
103). The parties have fully briefed the motion, and it is ripe for decision. However, for the
reasons set forth below, the Court deems it necessary to hold an evidentiary hearing, which
shall also include oral argument, on the motion prior to issuing a decision.
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II. Procedural History
On June 4,2013, Plaintiff, Tami Bernheisel, commenced an action against
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Defendants Memorial Hospital, Memorial Hospital, Inc., and Martin Mikaya. (Doc. 1).
Plaintiff subsequently filed a separate action against Defendant, Team Care, P.C., on
December 26,2013. (See 3:13-cv-3092-RDM, Doc. 1). On February 3,2014, the Court
granted Plaintiffs motion to consolidate the two actions (Doc. 29) based on Plaintiffs
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representation that "the matters in both cases aris[e] out of the same and identical set of
facts and circumstances regarding the medical care provided to" Bernheisel by Mikaya,
Memorial Hospital, and Team Care (Doc. 26).
III. Standard of Review
"Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree."
Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d
391 (1994) (internal citations omitted).
[T]he federal courts are without power to adjudicate the substantive claims in
a lawsuit, absent a 'firm bedrock of jurisdiction. When the foundation of federal
authority is, in a particular instance, open to question, it is incumbent upon the
courts to resolve such doubts, one way or the other, before proceeding to a
disposition of the merits.
Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir. 1977).
The instant case implicates one of the firmest bases for federal jurisdiction:
jurisdiction by diversity of citizenship. Cf. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 67-68, 117
S.Ct. 467,136 L.Ed.2d 437 (1996) (liThe Constitution provides, in Article III, § 2, that '[t]he
judicial power [of the United States] shall extend ... to Controversies ... between Citizens
of different States.' Commencing with the Judiciary Act of 1789 ... Congress has constantly
authorized the federal courts to exercise jurisdiction based on the diverse citizenship of
parties."). The current version of the general diversity statute provides that "[t]he district
courts shall have original jurisdiction of all civil actions where the matter in controversy
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exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ...
citizens of different states ...." 28 U.S.C. § 1332(a)(1).
A Motion to Dismiss for lack of subject-matter jurisdiction is properly made under
Federal Rule of Civil Procedure 12(b)(1) when a party believes that no diversity of
citizenship exists. "A district court has to first determine, however, whether a Rule 12(b)(1)
motion presents a 'facial' attack or a 'factual' attack on the claim at issue, because that
distinction determines how the pleading must be reviewed." Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 357 (3d Cir. 2014).
A facial attack, as the adjective indicates, is an argument that considers a
claim on its face and asserts that it is insufficient to invoke the subject matter
jurisdiction of the court because, for example, it does not present a question
of federal law, or because there is no indication of a diversity of citizenship
among the parties, or because some other jurisdictional defect is present.
Such an attack can occur before the moving party has filed an answer or
otherwise contested the factual allegations of the complaint. A factual attack,
on the other hand, is an argument that there is no subject matter jurisdiction
because the facts of the case-and here the District Court may look beyond
the pleadings to ascertain the facts-do not support the asserted jurisdiction.
So, for example, while diversity of citizenship might have been adequately
pleaded by the plaintiff, the defendant can submit proof that, in fact, diversity
is lacking.
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Id. at 358.
In the case before us, the Complaints adequately plead diversity of citizenship. (See
Am. Comp!., Doc. 25, W1-3 (alleging that Plaintiff is an adult individual residing in, and a
citizen of, North Carolina; that Defendant Mikaya is an adult individual and citizen of
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Pennsylvania; and that Memorial Hospital, Inc. t/a Memorial Hospital is a corporation,
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association, partnership, and/or other business entity organized and existing under the laws
of Pennsylvania and regarded as acitizen of Pennsylvania); Comp!., Doc. 1(3:13-cv-3092),
1m 1-2 (alleging that Plaintiff is an adult individual residing in, and a citizen of, North
Carolina and that Defendant Team Care, P.C. is a corporation, association, partnership,
and/or other business entity organized and existing under the laws of Pennsylvania and
regarded as a citizen of Pennsylvania)). Defendants merely claim that, whatever the
allegations of the Complaints may be, Plaintiff was in fact a Pennsylvania citizen and
resident. The Motion therefore presents a clear factual attack on the Complaints, and shall
be evaluated accordingly.
In considering a factual attack on subject-matter jurisdiction, "the court may consider
evidence outside the pleadings." Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d
Cir.2000). Moreover, "the burden of establishing the [existence of subject-matter
jurisdiction] rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377 (internal
citations omitted). This is because, since the federal courts' jurisdiction is strictly limited by
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Constitution and statute, "[ilt is to be presumed that acause lies outside this limited
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jurisdiction." Id.
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Finally, the Federal Rules of Civil Procedure provide that "[i]f the court determines at
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any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.
Civ.P. 12(h)(3). "The objection that a federal court lacks subject-matter jurisdiction may be
raised by a party, or by a court on its own initiative, at any stage in the litigation, even after
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trial and the entry of judgment." Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235,
163 L. Ed. 2d 1097 (2006). "Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and dismissing the cause." Ex parte
McCardle, 74 U.S. (7 Wall.) 506,514,19 L.Ed. 264 (1868). This rule "'springs from the
nature and limits of the judicial power of the United States' and 'is inflexible and without
exception.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003,
140 L.Ed.2d 210 (1998) (quoting Mansfield, C. &L. M. Ry. Co. v. Swan, 111 U.S. 379, 382,
4 S.Ct. 510, 28 L. Ed. 462 (1884)).
IV. Analysis
Because the relevant time for deterrnining the status of a party's citizenship for the
purpose of establishing diversity of citizenship is at the time the action is filed, at issue
before the Court is Bernheisel's citizenship in 2013. See Grupo Dataflux v. Atlas Global
Grp., L.P., 541 U.S. 567, 570-571,124 S.Ct. 1920, 158 L.Ed.2d 866 (2004) ("It has long
been the case that the jurisdiction of the court depends upon the state of things at the time
of the action brought. . .. [This rule] measures all challenges to subject-matter jurisdiction
premised upon diversity of citizenship against the state of facts that existed at the time of
filing - whether the challenge be brought shortly after filing, after the trial, or even for the first
time on appeal.") (internal quotations and citations omitted). Events subsequent to the filing
of an action, such as a change in a party's citizenship, do not defeat diversity jurisdiction if
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such jurisdiction existed at the commencement of the case. See Smith v. Sperling, 354
U.S. 91, 93 n.1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957) (noting that "jurisdiction, once
attached, is not impaired by a party's later change of domicile."). As the party asserting
jurisdiction, Plaintiff bears the burden of proving the presence of diversity of citizenship by a
preponderance of the evidence. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286
(3d Cir. 2006). However, under applicable law, Defendants in this case are not without their
own burden in their effort to show a change of domicile by Plaintiff. The Court in
Washington v. Hovensa described this "heavier burden" as '''shifting to ... [the] party [that
bears it] the burden of production regarding the change of domicile, not raising the standard
of proof: When the party 'claiming a new domicile is the opponent of federal jurisdiction' ...
it 'bears the initial burden of producing sufficient evidence to rebut the presumption in favor
of the established domicile.'" 652 F.3d 340, 345 (3d Cir. 2011) (quoting McCann, 458 F.3d
at 287 n.3, 288).
To establish citizenship within the meaning of § 1332, "a natural person must both be
a citizen of the United States and be domiciled within the State." Newman-Green, Inc.
V.
Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (emphasis in
original).
Citizenship is synonymous with domicile, and "the domicile of an individual is
his true, fixed and permanent home and place of habitation. It is the place to
which, whenever he is absent, he has the intention of returning." Vlandis V.
Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In determining
an individual's domicile, a court considers several factors, including
"declarations, exercise of political rights, payment of personal taxes, house of
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residence, and place of business." Krasnov [v. Dinan, 465 F.2d 1298, 1301
(3d Cir. 1972)] (quotation omitted). Other factors to be considered may
include location of brokerage and bank accounts, location of spouse and
family, membership in unions and other organizations, and driver's license
and vehicle registration. 13B Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 3612 (3d ed.2005).
McCann, 458 F.3d at 286. "[A] domicile once acquired is presumed to continue until it is
shown to have been changed. This principle gives rise to a presumption favoring
an established domicile over a new one." Id. at 286-287 (internal quotation marks and
citations omitted).
In support of their motion, Defendants submitted small portions of the deposition
testimony of Tami Bernheisel, Plaintiffs sons John Bernheisel. Jr. and Dillon Bernheisel,
and Plaintiffs friend Richard Ross, with whom Plaintiff currently resides in Pennsylvania.
Defendants also submitted a newspaper article indicating that Plaintiff obtained property in
Bradford County, Pennsylvania in approximately October of 2011, records showing that
Plaintiff later conveyed this property to another individual in 2014, and documents regarding
ongoing bankruptcy proceedings since 2011 in the Eastern District of North Carolina. None
of these documents provide much support for Defendants' arguments. The submitted
portions of the deposition transcripts are so brief as to largely prevent the Court from
determining what year or time frame is being discussed by the deponents and the context of
their testimony. The depositions also do not lend any direct support to Defendants'
arguments that Plaintiff was domiciled in Pennsylvania in 2013 or that she did not have any
intention to return to North Carolina at any time in which she was in a different state. The
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fact that Plaintiff owned property in Pennsylvania in 2013, without evidence that she ever
lived on this property for any period of time or had the intention of doing so, is meaningless.
See 4 Moore's Federal Rules Pamphlet § 1332.4(2)(a) (Matthew Bender) ("A person is
deemed to have one, and only one domicile at all times. Thus, for purposes of diversity of
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citizenship, a citizen has only once domicile, regardless of the number of residences
maintained."). Furthermore, a review of the docket sheet for the bankruptcy proceedings
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show that Plaintiff had a North Carolina address until December, 2013, when it changed to
Virginia, and then April, 2014, when she requested that her address be updated to one in
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Pennsylvania, therefore defeating any support for the argument that Plaintiff was not a
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resident of North Carolina at the time she 'first 'filed her action.
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Nonetheless, while Defendants' exhibits are far from persuasive, because the
Plaintiff bears the burden of establishing diversity of citizenship, she must have come
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forward with some evidence showing that she was domiciled in North Carolina at the time of
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the 'filing of the Complaint. Plaintiffs exhibits include an Affidavit of Tami Bernheisel;
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income tax returns for the 2014 calendar year; North Carolina Medicaid Identification Cards
issued to Plaintiff on August 19, 2014 and John Bernheisel on October 3,2014; a letter from
the Social Security Administration sent to Plaintiffs North Carolina address in November,
2014; North Carolina Registration Cards and accompanying receipts from the Division of
Motor Vehicles ("DMV") from October, 2014, and May, 2015, which list a North Carolina
address for Plaintiff; a DMV receipt and handicap placard dated July, 2012; and Calendar
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Requests in the District Court for Brunswick County, North Carolina, requesting the
termination of alimony and child support, in both of which Plaintiff provides a North Carolina
address. Although Plaintiff's exhibits could lead this Court to extrapolate that she was
domiciled in North Carolina in 2013, Plaintiff inexplicably fails to submit any documentary
evidence of where she filed taxes, was registered to vote, had a driver's license, or
registered her vehicle in 2013, the time at which the Court must determine the location of
her domicile, as well as any other evidence that may be relevant in the Court's
determination. While Bernheisel's affidavit states that she has always intended "to return
permanently to North Carolina once [she is] financially able to do so", that "all of [her] ties
are with North Carolina", and that she has "from 2011 to the present always paid [her]
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income taxes in North Carolina, because [she] consider[s herseln a resident of North
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Carolina", this alone is not sufficient for Plaintiff to meet her burden and the Court can only
give minimal weight to this affidavit prior to the introduction of further evidence. Rather, at
an evidentiary hearing, Plaintiff will have to provide documentary evidence to support her
statements. See Korn v. Korn, 398 F.2d 689, 691 (3d Cir. 1968) ("One's testimony as to his
intention to establish a domicile, while entitled to full and fair consideration, is subject to the
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infirmity of any self-serving declaration, and it cannot prevail to establish domicile when it is
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contradicted or negatived by an inconsistent course of conduct; otherwise stated, actions
speak louder than words."); Washington, 652 F.3d at 346-347 (where Plaintiff owned a
home in Texas, had a Texas driver's license and registered her vehicle in that state, as well
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as having a bank account and primary care doctor in Texas, her statement that she
intended to return to, and reside in, Texas was buttressed, not contradicted, by her course
of conduct at the time she filed her complaint.).
Both Plaintiff and Defendants focus almost exclusively on Bernheisel's location and
domiciliary intentions beginning in 2014, but fail to provide sufficient evidence to aid this
Court in determining whether Plaintiff was domiciled in North Carolina at the time of the
filing of this action. Because the factual record currently before the Court is inadequate for
the Court to make ajurisdictional determination, we will order an evidentiary hearing, which
shall include oral argument, in this matter. At that time, Plaintiff is expected to sustain her
burden of establishing that she was still domiciled in North Carolina in June, 2013.
Likewise, and consistent with their burden described herein, supra at 6, Defendants will also
be expected to present any evidence that they believe negate Plaintiffs claim that she was
domiciled in North Carolina at the time in question, and that demonstrate that she had
established a new domicile in Pennsylvania in 2013. The Court warns the parties that it is
not interested in hearing more arguments regarding Plaintiffs actions in 2014 and 2015 and
how this relates to her intent to remain in North Carolina, given that the question with
respect to intent is what Plaintiffs domiciliary intentions were in 2013, not subsequent to this
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V. Conclusion
AND NOW, THIS 22ND DAY OF OCTOBER, 2015, IT IS HEREBY ORDERED
THAT an evidentiary hearing on Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P
12(b)(1) (Doc. 95) will be held on Friday, November 20,2015, at 1:30 p.m.
obert D. Mariani
United States District Judge
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