United States District Court, E.D. Virginia, Alexandria Division
O'Grady United Suites District Judge
matter comes before the Court on Defendant Susan Osmun's
Motion to Dismiss for Lack of Jurisdiction, Dkt. No. 7, 8,
Defendant Susan Osmun's Second Motion to Dismiss for Lack
of Jurisdiction, Dkt. No. 20, and Defendant David Osmun's
Motion to Dismiss for Lack of Subject Matter Jurisdiction.
Dkt. No. 29. For the reasons discussed below, the Court
ORDERS that the Motions to Dismiss are DENIED.
Jordan and Cheryl Anacker (hereafter "Plaintiffs"),
pursuant to their Durable Power of Attorney for Lucille Kelly
dated April 1, 2016, filed a complaint against Susan Osmun,
Ms. Kelly's former attorney-in-fact since September 2008,
alleging breach of fiduciary duty, conversion, fraud and
unjust enrichment. Plaintiffs filed the Complaint on May 3,
2016, and alleged federal jurisdiction based on diversity of
citizenship and sufficient amount in controversy. The
Complaint identifies Mr. Jordan as a "resident of New
Jersey" and does not list his citizenship. The Complaint
identifies Ms. Anacker as a resident of Florida, Ms. Kelly as
a citizen of Virginia and Ms. Osmun as a citizen of New
Jersey. Plaintiffs allege that Ms. Osmun misappropriated Ms.
Kelly's funds for personal gain through abuse of her
powers as attorney-in-fact. Ms. Osmun moved to dismiss the
Complaint for lack of diversity of citizenship on the grounds
that Mr. Jordan and Ms. Osmun were both citizens of New
Jersey. Plaintiffs obtained leave to amend the Complaint to
remedy procedural defects and to add Ms. Osmun's husband
as a co-defendant. Plaintiffs filed a first amended complaint
("FAC") on July 8, 2016. The FAC identifies Mr.
Jordan as "an individual resident, citizen, and
domiciliary of Maryland" and Ms. Anacker as "an
individual resident, citizen, and domiciliary of
Florida." Mr. Osmun is identified as a citizen of New
Jersey. The FAC did not amend the citizenship of the
remaining parties. Ms. Osmun and Mr. Osmun filed separate
motions to dismiss this proceeding for lack of diversity
jurisdiction raising different arguments in support of their
claims. The matter has since been fully briefed and
supplemented with affidavits by the Plaintiffs.
parties do not dispute that at the time of filing the
Complaint Mr. Jordan owned a home in New Jersey, lived there
during the week with his seven year-old daughter and intended
to remain there (on weekdays) until the completion of his
daughter's school year. Plaintiffs also present the sworn
affidavit of Mr. Jordan who avows that his wife has lived and
worked in Maryland since March 2016, that Mr. Jordan has been
approved to transfer to Maryland by his employer since March
2016, that Mr. Jordan signed a lease in April 2016 on a
property in Maryland and lives there with his wife on the
weekends, that Mr. Jordan's connection to New Jersey is
limited to providing for his seven year old daughter to
complete the school year in New Jersey, that his daughter
will attend school in Maryland for the 2016/2017 school year
and thereafter, and that at the time of the complaint Mr.
Jordan lived part time in Maryland with an intent to remain
there permanently and indefinitely. Mr. Jordan has not yet
voted in or paid taxes to Maryland but intends to do so.
"has granted district courts original jurisdiction in
civil actions between citizens of different States, between
U.S. citizens and foreign citizens, or by foreign states
against U.S. citizens." Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct.
2611, 2617, 162 L.Ed.2d 502 (2005) (citing 28 U.S.C. §
1332). This so-called "diversity jurisdiction" has
a "complete diversity" requirement. Owen Equip.
& Erection Co. v. Kroger; 437 U.S. 365, 373, 98
S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978). Under this
requirement, "diversity jurisdiction does not exist
unless each defendant is a citizen of a different State from
each plaintiff." Id. For the purposes of the
diversity jurisdiction statute, an individual is considered
to be a citizen of the state in which they are
domiciled-"i.e. the state he considers his permanent
home." See Gambelli v. United States, 904
F.Supp. 494 (E.D. Va. 1995), affirmed by 87 F.3d
1308 (4th Cir. 1996). Virginia law defines domicile as
"residence or physical presence accompanied by an
intention to remain for an unlimited time." Smith v.
Wellberg (In re Wellberg), 12 B.R. 48 (Bankr. E.D. Va.
1981), citing Smith v. Smith, 122 Va. 341, 94 S.E.
777 (1918). Diversity of citizenship is determined at the
time of the filing of the action. See Freeport-McMoRan,
Inc. v. KN Energy, Inc., 498 U.S. 426 (1991).
jurisdiction is subject to an amount in controversy
requirement. See Exxon Mobil Corp., 545 U.S. at 552.
Currently, a district court does not have original
jurisdiction over a diversity action unless the amount in
controversy exceeds $75, 000. Id.
is no dispute between the parties that the amount in
controversy in this dispute exceeds $75, 000. Defendants move
to dismiss for lack of complete diversity of the parties
alleging that Mr. Jordan, one of Ms. Kelly's
attorney-in-fact, is a domiciliary of New Jersey and that
Defendants are also domiciliaries of New Jersey. Plaintiffs
challenge this motion on two grounds: (1) that Mr. Jordan is
not a party in interest so his domicile is not relevant to
establishing party diversity; and (2) that even if Mr. Jordan
is a party in interest, his proper domicile is Maryland
rather than New Jersey.
Party in Interest for Diversity
parties dispute whether Ms. Kelly's attorneys-in-fact,
Mr. Jordan and Ms. Anacker, are parties in interest to this
controversy and as such, whether their domicile should be
considered for purposes of determining diversity
to Federal Rule of Civil Procedure 17(a), a party may sue in
his own name with or without joining the party for whose
benefit the action is brought. Fed.R.Civ.P. 17(a) ("An
executor, administrator, guardian, bailee, trustee of an
express trust, a party with whom or in whose name a contract
has been made for the benefit of another, or a party
authorized by statute may sue in that person's own name
without joining the party for whose benefit the action is
brought."). Plaintiffs contend that they are authorized
by statute to bring a suit in Ms. Kelly's name. Va. Code
§ 64.2-1633 provides that "language in a power of
attorney granting general authority with respect to claims
and litigation authorizes the agent to... [a]ssert and
maintain.. .a claim, claim for relief, cause of
action...". Ms. Kelly granted Durable General Power of
Attorney to Plaintiffs on April 1, 2016, more than a month
before the filing of the original complaint. This grant
conferred authority to bring a claim under Virginia law and
similarly conferred authority to bring an action in federal
court under Rule 17(a).
a diversity analysis.. .courts must take into account the
citizenship of real parties in interest, and not just the
party under whose name the suit was initiated."
Symeonidis ex rel. Symeonidis v. Hurley & Koort,
P.L.C., No. CIV A 3:05CV762 JRS, 2006 WL 2375743, at *4
(E.D. Va. Aug. 15, 2006) (quoting Car den v. Arkoma
Assocs.,494 U.S. 185, 200 (1990)). It is the
citizenship of the real parties in interest which is
determinative of diversity jurisdiction. See Roche v.
Lincoln Prop. Co.,373 F.3d 610, 615 (4th Cir. 2004),
rev'd on other grounds, Lincoln Prop. Co. v.
Roche,546 U.S. 81, 126 S.Ct. 606, 163 L.Ed.2d 415
(2005). "[A] federal court must disregard nominal or