United States District Court, D. Massachusetts
DORA JEAN MCCORMICK, individually and as personal representative of the estate of Patrick Kenneth McCormick, Plaintiff,
SARA C. LISCHYNSKY, Defendant.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
Dennis Saylor IV United States District Judge
case involves the alleged theft of assets by a former
domestic partner. Patrick McCormick was in a relationship
with defendant Sara Lischynsky for several years, and
apparently she had access to his property and financial
accounts during that time. Sometime before 2017, the two
broke off their relationship. Patrick committed suicide in
February 2017. Lischynsky allegedly then used Patrick's
passwords to steal a substantial portion of his assets.
Dora Jean McCormick, Patrick's mother, was later
appointed as personal representative of his estate. She has
brought suit against Lischynsky, alleging a variety of tort
and contract claims, both personally and on behalf of the
estate. Jurisdiction is based on diversity of citizenship.
has moved to dismiss the complaint for failure to state a
claim. For the following reasons, the motion will be granted
in part and denied in part.
facts are set forth as alleged in the complaint.
time of his death, Patrick McCormick was a citizen of
Massachusetts. (Compl. ¶ 7). Dora McCormick is a citizen
of Maine. (Id. ¶ 6). Sara Lischynsky is a citizen
of California. (Id. ¶ 7).
and Sara dated for several years before 2017, and they
eventually moved in together into a Dorchester apartment.
(Id. ¶ 12). At some point, the relationship
ended, and the two “reached an agreement as to the
division of their property and assets.” (Id.
¶ 13). The terms of that agreement are not alleged in
Patrick suffered from depression. (Id. ¶ 14).
He committed suicide in February 2017. (Id.).
complaint alleges that after learning of Patrick's death,
Sara used her knowledge of “Patrick's personal and
confidential information and passwords” to
“gain access to his property and bank
accounts.” (Id. ¶ 17). She purportedly
stole “tens of thousands of dollars” and left
Massachusetts for California. (Id. ¶¶
was then appointed personal representative of Patrick's
estate by the probate court. (Id. ¶ 15). She
discovered “the theft of her deceased son's
property” that left his estate “depleted of its
assets.” (Id. ¶ 20). She alleges both
financial harm to the estate and emotional harm to herself
that manifested itself in physical injuries. (Id.
¶¶ 22, 25).
complaint was filed in this action on June 8, 2018, in the
Superior Court. It asserted 15 common-law claims. However,
defendant was not served the complaint until February 17,
2019. Defendant timely removed the action to this court on
the basis of diversity jurisdiction and then moved to dismiss
the complaint for failure to state a claim.
motion hearing on May 15, 2019, plaintiff's counsel
voluntarily dismissed all claims other than Counts 2, 4, 5,
11, and 12. The remaining claims are promissory estoppel
(Count 2); conversion (Count 4); unjust enrichment (Count 5);
intentional infliction of emotional distress
(“IIED”) (Count 11); and negligent infliction of
emotional distress (“NIED”) (Count
complaint does not distinguish whether each claim is alleged
by Dora in her individual capacity or as a personal
representative of Patrick's estate. The Court will read
the complaint broadly to allege that all claims are brought
by Dora in both her individual and representative capacities.
plaintiff did not raise the issue, “[i]t is
black-letter law that a federal court has an obligation to
inquire sua sponte into its own subject-matter
jurisdiction.” McCulloch v. Velez, 364 F.3d 1,
5 (1st Cir. 2004) (citing In re Recticel Foam Corp.,
859 F.2d 1000, 1002 (1st Cir. 1988); Fed.R.Civ.P. 12(h)(3)).
As set forth in 28 U.S.C. § 1332(a)(1), diversity
jurisdiction exists only “where the matter in
controversy exceeds the sum or value of $75, 000, exclusive
of interest and costs, and is between citizens of different
States.” There is no issue as to diversity of
citizenship. However, it was unclear from the face of the
complaint and attached exhibits whether the
amount-in-controversy threshold was met. Accordingly, the
Court directed defendant, as the removing party, to show why
the action should not be remanded to the Superior Court for
lack of subject-matter jurisdiction.
review of defendant's submission, the Court concludes
that the jurisdictional threshold requirement has been
satisfied. As noted, at the time of removal, the amended
complaint asserted 15 counts, including various contract and
tort claims. The complaint alleged tort damages “in
excess of $25, 000.” (Compl. ¶ 25). The Civil
Cover Sheet attached to the complaint alleged contract
damages of exactly $75, 000. (Notice of Removal ...