United States District Court, D. New Jersey
MEMORANDUM AND ORDER
O. SHERIDAN, U.S.D.J.
This diversity case comes before the Court pursuant to 28
U.S.C. § 1332, wherein Plaintiffs seek to compel
arbitration of Defendant Shawn Moreland's state lawsuit,
which alleges nursing malpractice and the wrongful death of
her mother, Decedent Sheila Moreland. (ECF No. 2). Defendant
Shawn Moreland cross-moves for dismissal pursuant Federal
Rule of Civil Procedure 12(b)(1), since the Court lacks
diversity jurisdiction. (ECF No. 7).
Court limits its discussion to the pertinent jurisdictional
facts. Both Decedent and all Plaintiffs are citizens of New
Jersey. (Complaint at ¶¶ 1-11). Decedent's
daughter and administrator ad prosequendum, Defendant
Moreland, is a South Carolina resident. (Id. at
¶ 10). As such, in their Complaint, Plaintiffs assert
that diversity jurisdiction exists since Plaintiffs and
Defendant Moreland are citizens of different states and the
amount in controversy exceeds $75, 000. (Id. at
¶ 11). For the reasons discussed herein, the Court
grants Defendant Moreland's motion to dismiss since
diversity jurisdiction is lacking.
to Federal Rule of Civil Procedure Rule 12(b)(1), a defendant
may move to dismiss a claim for lack of jurisdiction over the
subject matter at any time in a case. In re Kaiser
GroupInt'l, Inc., 399 F.3d 558, 565 (3d Cir. 2005)
(citing Fed.R.Civ.P. 12(b)(1)). "When subject matter
jurisdiction is challenged under Rule 12(b)(1), the plaintiff
must bear the burden of persuasion." Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). If the
defendant's attack is facial, the court may take all
allegations in the complaint as true and "may dismiss
the complaint only if it appears to a certainty that the
plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction." Liu v. Gonzales,
No. 07-1797, 2007 U.S. Dist. LEXIS 74611, at *7 (D.N.J. Oct.
5, 2007) (citing Cardio-Medic. Assocs., Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983)). "One basis of original jurisdiction is diversity
jurisdiction or jurisdiction over civil actions between
'citizens of different States' where 'the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.'" Penn v.
Wal-Mart Stores, Inc., 116 F.Supp.2d 557, 561 (D.N.J.
2000) (quoting 28 U.S.C. § 1332(a)). Where
"complete diversity" is lacking between each
plaintiff and each defendant, removal is improper. Harvey
v. Blockbuster, Inc. 384 F.Supp.2d 749, 752 (D.N.J.
Defendant Moreland contends that the Court lacks subject
matter jurisdiction since, as the legal representative of
Decedent's estate, she is deemed a New Jersey citizen
under 28 U.S.C. § 1332(c)(2); as such, complete
diversity is lacking. Plaintiffs respond, contending that an
administrator ad prosequendum is not a legal representative
for purposes of Section 1332(c)(2) and, as such, complete
diversity purposes, the representative of the estate of a
decedent is deemed to acquire the citizenship of the decedent
at the time of the decedent's death. 28 U.S.C. §
1332(c)(2) ("the legal representative of the estate of a
decedent shall be deemed to be a citizen only of the same
State as the decedent"); see also Golden v.
Golden, 382 F.3d 348, 352 n.l (3d Cir. 2004) ("In
diversity actions involving estates, the courts look to the
citizenship of the decedent to determine
jurisdiction.")- As part of the Judicial Improvements
Act of 1988, Public Law No. 100-702, 102 Stat. 4646 (1988),
Section 1332(c)(2) was enacted in response to forum shopping
tactics wherein out-of-state fiduciaries would be appointed
representative of the decedent's estate for purposes of
manufacturing diversity. See Liu v. Westchester Cnty.
Med. Ctr., 837 F.Supp. 82, 83 (S.D.N.Y. 1993) ("The
intent of the 1988 amendment was to avoid permitting the
residency of fiduciaries for decedents to affect diversity
courts are divided on whether the term "legal
representative" under Section 1332(c)(2) encompasses
wrongful death plaintiffs and, if so, to what extent. See
Webb v. Banquer, 19 F.Supp.2d 649, 651 (S.D.Miss. 1998);
see also Heather N. Hormel, Domicile for the
Dead: Diversity Jurisdiction in Wrongful Death Actions,
2001 U. Chi. Legal. F. 519, 520 (2001). Several district
courts have held that Section 1332(c)(2) applies to a
wrongful death plaintiff and, therefore, the representative
bringing suit is deemed a citizen of the same state as the
decedent. See Thomas v. Brooks Run Mining Co., LLC,
504 F.Supp.2d 121, 127 (S.D. W.Va. 2007); Clarke v.
District of Columbia, No. 06-0623, 2007 U.S.
Dist. LEXIS 34128, at *5-7 (D.D.C. May 9, 2007); James v.
Three Notch Med. Ctr., 966 F.Supp. 1112 (M.D. Ala.
1997); Liu, 837 F.Supp. at 83. In Liu, the
Southern District of New York reasoned:
Wrongful death actions are brought by fiduciary nominal
plaintiffs seeking to recompense beneficiaries, in the
generic as well as often in the testamentary sense, of the
decedent. Nominal plaintiffs bringing wrongful death suits
are thus "representatives" of an "estate"
of the decedent, although defined by wrongful death statutes
and decisions rather than by testamentary instruments.
837 F.Supp. at 83. However, the Eighth and Tenth Circuits
have read Section 1332(c)(2) more narrowly and found that it
does not apply to "a person appointed pursuant to
statute with authority to bring a wrongful death action"
if the estate does not stand to benefit from the suit.
Tank v. Chronister, 160 F.3d 597, 599 (10th Cir.
1998); see also Steinlage ex rel. Smith v. Mayo
Clinic Rochester, 435 F.3d 913, 917-18 (8th
Cir. 2006). In any event, when determining whether Section
1332(c)(2) applies, courts focus on the language of the
wrongful death statute at issue. See James, 966
F.Supp. at 1116; Liu, 837 F.Supp. at 83-84.
New Jersey's Wrongful Death Statute, a wrongful death
suit can only be brought by an administrator ad prosequendum.
N.J.S.A. § 2A:31-2. In addition, the statute states:
When the death of a person is caused by a wrongful act,
neglect or default, such as would, if death had not ensued,
have entitled the person injured to maintain an action for
damages resulting from the injury, the person who would have
been liable in damages for the injury if death had not ensued
shall be liable in an action for damages, notwithstanding the
death of the person injured and although the death was caused
under circumstances amounting in law to a crime.
N.J.S.A. § 2A:31-1. In New Jersey, an administrator ad
prosequendum is "an agent authorized to bring the suit
for the benefit of those individuals specified by the
Legislature." Germann v. Matriss,260 A.2d 825,
835 (N.J. 1970). Consistent with Thomas and
Liu, the Court finds that the representative
capacity that an administrator ad prosequendums serves, under
New Jersey's Wrongful Death Statute, places it within
Section 1332(c)(2) coverage. See Thomas, 504
F.Supp.2d at 127; Liu, 837 F.Supp. at 83. Guided by
the plain language of Section 1332(c)(2), the Court finds
that an administrator ad prosequendum under New Jersey's
Wrongful Death suit is deemed a citizen of the same state as
the decedent. As such, ...