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LAST v. ELWYN

July 29, 1996

CATHERINE LAST, as Plenary Guardian of the person of her natural son, DOUGLAS LAST V. ELWYN, INC. D/B/A/ THE ELWYN INSTITUTE, and THOMAS GILLEM and CHARLES BARNES


The opinion of the court was delivered by: PADOVA

 Padova, J.

 July 29th, 1996

 Plaintiff, Catherine Last, brings this personal injury action on behalf of her son and ward Douglas Last. Douglas is a 31-year-old adult who suffers from developmental and physical disabilities. *fn1" For the last 22 years Douglas has lived at the Elwyn Institute (the "Institute"), a residential school for the disabled located in Pennsylvania. It is undisputed that he is legally incompetent, and Catherine Last has been appointed his plenary guardian. Defendants are the non-profit corporation that owns and runs the Institute, and several Institute employees. Jurisdiction is based on diversity.

 Currently before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Defendants, all citizens of Pennsylvania, argue that there is not complete diversity among the parties. *fn2" For the reasons that follow, I conclude that diversity jurisdiction is proper. Defendants' Motion will therefore be denied.

 I. FACTUAL BACKGROUND

 Briefly stated, Plaintiff alleges that on March 10, 1994, Douglas was walking from one building to another at the Institute. He was being "shadowed" by Defendant Barnes to make sure he got where he was going without incident *fn3" While crossing a street, Douglas was struck by a van owned by Defendant Elwyn, Inc., and driven by Defendant Gillem. As a result of the accident, Douglas suffered severe back injuries that left him a paraplegic. Douglas suffers from other medical problems as a result of the accident including pain, and an inability to care for his own toileting. He has also incurred significant medical expenses and suffered emotional distress.

 It is uncontested that Defendants are all citizens of Pennsylvania. The only jurisdictional question before the Court is whether Douglas is a citizen of New York, as Plaintiff contends, or a citizen of Pennsylvania, as Defendants contend. Plaintiff presents the following facts in support of her contention that Douglas is a citizen of New York.

 Douglas was born in New York State on February 2, 1965 and has been developmentally disabled since birth, suffering from organic brain syndrome and microencephaly. Douglas lived in New York with his parents until 1974, when he was nine years-old. Prior to 1974, Douglas' education was provided by the New York State Bureau of Cooperative Educational Services ("BOCES"). When BOCES could no longer meet Douglas' needs, and finding no instate facilities suitable, the State of New York Education Department agreed to pay for Douglas' placement at the Institute in Pennsylvania. The State of New York reviewed funding for this placement on a yearly basis. Until recently, Douglas traveled to his mother's home in New York on visits about five times a year.

 In 1986, when Douglas attained the age of 21, the New York Education Department ceased funding for Douglas' placement at the Institute. Funding was then provided by the West Chester County (New York) Developmental Disabilities Services Office. This agency continued to provide funding until January 31, 1996. Douglas is currently on a waiting list for placement in an appropriate community-based living arrangement in the State of New York.

 Plaintiff counters that the purchase of the house in West Chester was made necessary by the injuries Douglas sustained in the accident underlying this case. Because of his new physical impairments, travel to New York is no longer practicable. Catherine Last claims that she is still a resident and citizen of New York, and that while she has spent considerable time in recent months making repairs to the Pennsylvania property, the new house will be used primarily for visits with Douglas and is not Ms. Last's primary residence.

 Additionally, Plaintiff argues that the cessation of funding to the Institute is part of changing political conditions in New York State whereby various counties, including West Chester County, have declined to fund out-of-state care for retarded residents of New York. Out-of-state recipients of such care are to seek appropriate treatment in New York State. However, the United States District Court for the Eastern District of New York has ordered that funding be resumed for six months so affected persons and their families have an opportunity to arrange in-state care.

 II. STANDARD OF REVIEW

 Where subject matter jurisdiction is challenged by means of a motion to dismiss under Rule 12(b)(1), the Plaintiff bears the burden of demonstrating that jurisdiction is proper. Kehr Packages, Inc. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991).

 In diversity cases, the diversity of the parties is based on citizenship of the ward, not the guardian. The federal diversity statute, ...


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