UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Mallory O’Shea, Administrator of the Estate of Stanley Sewall, and Diane Sewall, Plaintiffs

v. Case No. 23-cv-230-SM-AJ Opinion No.

Woodbine Senior Living, LLC; Beacon Hospice, LLC; and Wentworth Homecare and Hospice, LLC, Defendants

O R D E R

Mallory O’Shea, as the administrator of the estate of

Stanley Sewall, and Diane Sewall (Mr. Sewall’s widow) bring this

suit advancing various common law and state statutory causes of

action - all arising out of the allegedly negligent care

defendants provided to Mr. Sewall. Plaintiffs assert that the

parties are diverse because Mr. Sewall was a citizen of Maine

when he died, so the court may properly exercise subject matter

jurisdiction under

. Two of the named

defendants - Beacon Hospice and Wentworth Homecare and Hospice -

disagree and move to dismiss, asserting that Mr. Sewall was a

citizen of New Hampshire when he died, the parties are not

diverse, and the court is without subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Plaintiffs and defendant Woodbine

Senior Living object.

The arguments offered by the parties succumb to the

familiar problem of raising more issues than are resolved, as

explained below. All parties seems to agree (perhaps

incorrectly) that Mr. Sewall (who was suffering from dementia)

changed his domicile from Maine to New Hampshire when he moved

to a care facility in New Hampshire. If that was the case,

there can be no diversity unless he changed his domicile back to

Maine prior to his death. Yet, the plaintiffs make no

allegation that he was ever physically present in Maine after

having moved to New Hampshire (a necessary element to change his

domicile). Further complicating matters is this: despite the

parties’ agreement on the issue, the pleadings are not

persuasive that Mr. Sewall changed his domicile to New Hampshire

in the first place; he may have remained a domiciliary of Maine

throughout his stay in New Hampshire and until his death.

For the reasons given, the motion to dismiss is granted,

for now, but without prejudice to plaintiffs filing an amended

complaint in which sufficient provable facts are alleged that,

if true, would support a finding that Mr. Sewall was a citizen

of Maine at the time of his death.

2 Background

Accepting the factual allegations of the Amended Complaint

(document no. 11) as true, the following appears to be relevant.

The late Mr. Sewall and his wife had been long-term residents of

Poughkeepsie, New York. Then, in May of 2021 (approximately 14

months before Mr. Sewall’s death), the couple moved to York,

Maine. For purposes of resolving the pending motion to dismiss,

the court will assume that Mr. Sewall became a citizen of Maine

and that state became his domicile.

Mr. Sewall suffered from dementia and severe anxiety. By

the spring of 2022, he was having recurrent falls and exhibiting

“exit-seeking” behavior from his home. His children were

concerned for his well-being and realized that their mother

could no longer provide the kind of care and supervision that he

required. So, they began looking for a facility to care for

their father and ensure his safety.

After conducting their research and relying, at least in

part, on allegedly false and deceptive marketing materials they

had received, the children decided to move their father to

Spring Village at Dover, a residential care facility operated by

defendant Woodbine Senior Living, LLC. Mr. Sewall was admitted

to Spring Village on June 1, 2022. As described in the Amended

3 Complaint, Mr. Sewall suffered a series of falls, his family was

unhappy with the care he was receiving, and they became

increasingly worried about his well-being.

On June 26, Mr. Sewall had a serious fall. He was found on

the floor, bleeding from his head and complaining of hip pain.

He was transported to the Emergency Department of Portsmouth

Hospital, where he was admitted and diagnosed with a left hip

fracture. The decision was made that he would not return to

Spring Village and, on June 30, Mr. Sewall was discharged from

that facility. Family members made arrangements to gather his

furniture and personal belongings from Spring Village and return

them to Maine.

Meanwhile, Mr. Sewall’s family members were exploring

options for his care once he was discharged from the hospital.

They decided that, upon his discharge, Mr. Sewall would return

home to Maine, where he would receive hospice care.

Unfortunately, Mr. Sewall was never able to return to Maine. On

July 3, 2022, he died in Portsmouth Hospital as a result of

“complications of left hip fracture, including an

intraparenchymal hemorrhage, a type of stroke that was caused by

bleeding in the brain sustained during the fall.” Amended

Complaint at para. 56. On April 11, 2023, plaintiffs filed this

4 suit seeking damages for defendants’ allegedly negligent care of

Mr. Sewall, breach of contract, and violations of New

Hampshire’s Consumer Protection Act. Additionally, Mrs. Sewall

seeks damages for loss of consortium.

Discussion

I. Diversity Subject Matter Jurisdiction.

Plaintiffs bring only state causes of action.

Consequently, the court may not exercise “federal question”

subject matter jurisdiction over the case. See

. Instead, plaintiffs urge the court to exercise

“diversity” jurisdiction under

. For the court

to do so, plaintiffs must demonstrate that: (a) the amount in

controversy exceeds $75,000; and (b) the plaintiffs and the

defendants are citizens of different states. In this context,

“citizenship” means domicile. See, e.g., Hawes v. Club Ecuestre

El Comandante,

(1st Cir. 1979) (“For purposes

of diversity jurisdiction under

(a)(1), state

citizenship is the equivalent of domicile.”); Valentin v. Hosp.

Bella Vista,

(1st Cir. 2001) (same); Bank One,

Texas, N.A. v. Montle,

(1st Cir. 1992) (same).

No one disputes that the amount in controversy exceeds the

minimum jurisdictional threshold. The dispositive question

5 presented is whether the parties are diverse. The answer to

that question turns on the citizenship of Mallory O’Shea, in her

capacity as Administrator of the Estate of Stanley Sewall.

That, in turn, depends upon the citizenship (i.e., domicile) of

Mr. Sewall at the time of his death. Under

(c)(2), for purposes of diversity jurisdiction, the legal

representative of the estate of a decedent is deemed to be a

citizen of the same state as the decedent. See, e.g., King v.

Cessna Aircraft Co.,

(11th Cir. 2007)

(“Where an estate is a party, the citizenship that counts for

diversity purposes is that of the decedent, and she is deemed to

be a citizen of the state in which she was domiciled at the time

of her death.”) (citations omitted).

Importantly, a person’s domicile is not necessarily the

same as his or her residence. One can have several residences

but only one domicile. “A person’s domicile is the place where

he has his true, fixed home and principal establishment, and to

which, whenever he is absent, he has the intention of

returning.” Rodriguez-Diaz v. Sierra-Martinez,

(1st Cir. 1988) (citations and internal punctuation

omitted). Once established, one’s domicile remains the same

until all the conditions necessary to change it are present.

See, e.g., Acridge v. Evangelical Lutheran Good Samaritan Soc.,

6

(5th Cir. 2003) (“There is a presumption of

continuing domicile that applies whenever a person relocates.

In order to defeat the presumption and establish a new domicile

(the ‘domicile of choice’), the person must demonstrate both (1)

residence in a new state, and (2) an intention to remain in that

state indefinitely. Mere presence in a new location does not

effect a change of domicile; it must be accompanied with the

requisite intent.”) (citations and internal punctuation

omitted); Padilla-Mangual v. Pavia Hosp.,

(1st

Cir. 2008) (same).

The parties recognize that if Mr. Sewall was a domiciliary

of Maine when he died, diversity exists and this court may

properly exercise subject matter jurisdiction. If, on the other

hand, Mr. Sewall was domiciled in New Hampshire when he died,

diversity is lacking (at least one defendant is also a citizen

of New Hampshire) and the case must be dismissed. As the party

invoking diversity jurisdiction, plaintiffs must demonstrate, by

a preponderances of the evidence, that Mr. Sewall was a

domiciliary of Maine at the time of his death. See, e.g.,

Rodriguez v. Senor Frog’s de la Isla, Inc.,

(1st

Cir. 2011).

7 II. Mr. Sewall’s Domicile and the Parties’ Arguments.

It would seem that there are two plausible circumstances

under which Mr. Sewall was a domiciliary of Maine when he died.

First, it is possible that, despite having been moved to a care

facility in New Hampshire, Mr. Sewall remained a domiciliary of

Maine. That is to say, notwithstanding his change in residency,

his domicile remained in Maine (like, for example, a college

student studying and residing in another state, but who has no

intent to become a citizen of that state). But, neither the

plaintiffs nor the defendants who join in objecting to dismissal

make that argument.

Of course, there is an alternate set of circumstances under

which Mr. Sewall might be found to have been domiciled in Maine

when he died. He could have become a domiciliary of New

Hampshire when he moved here but changed his domicile back to

Maine immediately before he died. That is the argument that

plaintiffs (and the objecting defendants) make. That is to say,

they agree that upon moving to Spring Village, Mr. Sewall acted

with the requisite intent (or those with authority to act on his

behalf acted with such intent) to change his domicile from Maine

to New Hampshire. See generally Acridge, 334 F.3d at 448–50

(collecting cases that discuss the authority of a person to

change the domicile of someone not competent to make that choice

8 on their own). But, the argument goes, he changed his mind:

after moving out of Spring Village and making plans to return to

Maine following his discharge from the hospital, Mr. Sewall

changed his domicile back to Maine. That argument is, however,

seemingly doomed by the facts as presented in the Amended

Complaint. 1

As noted above, for purposes of determining whether the

court may properly exercise diversity jurisdiction, the concepts

of “citizenship” and “domicile” are synonymous. And, to resolve

the pending motion to dismiss, the court must determine Mr.

Sewall’s citizenship (i.e., domicile) at the time of his death.

As the court of appeals for this circuit has noted,

Citizenship is determined by domicile, which can be established by demonstrating that the individual is physically present in the state and has an intent to remain indefinitely. Once challenged, the party invoking diversity jurisdiction must prove domicile by a preponderance of the evidence. The key point of inquiry is whether diversity of citizenship existed at the time the suit was filed; subsequent events may bear on the sincerity of a professed intention to remain but are not part of the primary calculus.

1 Plaintiffs acknowledge that this position is inconsistent with the factual allegation set forth in paragraph 11 of the Amended Complaint - i.e., that Mr. Sewall’s “last domicile” was New Hampshire. The Amended Complaint, they say, contains an erroneous allegation.

9 Garcia Perez v. Santaella,

, 350–51 (1st Cir. 2004)

(emphasis supplied; citations omitted).

Thus, to establish “domicile” in a particular state, one

must demonstrate two things: first, a physical presence in that

state; and, second, an intent to remain there indefinitely (and,

when absent from that state, an intent to return). See, e.g.,

Valentin,

(“Domicile requires both physical

presence in a place and the intent to make that place one’s

home. It follows logically that in order to change domiciles, a

person must move to a new state in which she intends to remain

indefinitely.”) (emphasis supplied); Bank One, Texas,

(“Montle needed to do two things to effect a change in his

domicile: he had (1) to be present in the new domicile, and (2)

to intend to remain there.”). Indeed, one of the primary cases

upon which plaintiffs (and the objecting defendant) rely stands

for precisely the same proposition of law. See Padilla-Mangual,

516 F.3d at 31–32 (“To sustain his burden, Padilla was required

to show two things in order to establish a change in his

domicile from Puerto Rico to Florida: (1) presence in Florida,

and (2) an intent to remain there.”) (emphasis supplied).

Intent to changes one’s domiciliary, standing alone, is not

sufficient.

10 Here, while Mr. Sewall (or those with authority to make

such decisions on his behalf) may well have intended to return

to Maine and restore it as his domicile upon his discharge from

the hospital, he never actually returned. That is, before he

died, Mr. Sewall did not establish a physical presence in Maine.

That failure/inability of Mr. Sewall to return to his former

home would seem to preclude a change in domicile. In short, one

of the two essential elements necessary to reestablish a

domicile in Maine - physical presence - is missing. Without it,

the court cannot conclude that Mr. Sewall changed his domicile

back to Maine immediately prior to his death - again, if finding

such a change in domicile is necessary for the court to conclude

that parties are diverse; as mentioned earlier, it is

conceivable that Mr. Sewall remained a domiciliary of Maine all

along.

Conclusion

In light of the sparse jurisdictional facts of record, the

court is constrained to conclude, for now, that at the time of

his death, Mr. Sewall was a citizen (i.e., domiciliary) of New

Hampshire (as the parties seem to agree he became a citizen of

New Hampshire at some point). That, in turn, means that the

executor of his estate is also deemed to be a citizen of New

Hampshire and diversity is lacking.

11 Defendants’ Motion to Dismiss for Lack of Subject Matter

Jurisdiction (document no. 16) is granted, but without prejudice

to plaintiffs filing, within 45 days, an amended complaint that

adequately alleges jurisdictional facts sufficient, if true, to

support a finding that, at the time of his death, Mr. Sewall was

domiciled in Maine. Failure to file such an amended complaint

will result in dismissal without further leave to amend.

As noted above, it is possible that despite moving to a

residential care facility in New Hampshire, Mr. Sewall’s

domicile remained in Maine all along. It is entirely unclear,

however, whether the facts would support an argument along those

lines. See generally Fed. R. Civ. P. 11(b)(3). The nature of

Mr. Sewall’s cognitive difficulties, the nature of the decisions

made on his behalf and the authority to make such decisions, and

the actions taken on behalf of Mr. Sewall would all be relevant.

See generally Garcia Perez v. Santaella,

(1st

Cir. 2004) (discussing the factors that can be relevant when

determining whether a person has changed their domicile).

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

February 9, 2024

12 cc: Counsel of Record

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