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McCormick v. Lischynsky

United States District Court, D. Massachusetts

July 30, 2019

DORA JEAN MCCORMICK, individually and as personal representative of the estate of Patrick Kenneth McCormick, Plaintiff,
v.
SARA C. LISCHYNSKY, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

          F. Dennis Saylor IV United States District Judge

         This 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.

         Plaintiff 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.

         Defendant 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.

         I. Background

         A. Factual Background

         The facts are set forth as alleged in the complaint.

         At the time of his death, Patrick McCormick was a citizen of Massachusetts. (Compl. ¶ 7). Dora McCormick is a citizen of Maine. (Id. ¶ 6).[1] Sara Lischynsky is a citizen of California. (Id. ¶ 7).[2]

         Patrick 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 the complaint.

         Unfortunately, Patrick suffered from depression. (Id. ¶ 14). He committed suicide in February 2017. (Id.).

         The 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. ¶¶ 18-19).

         Dora 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).

         B. Procedural Background

         The 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.

         At the 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 12).[3]

         The 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.

         C. Subject-Matter Jurisdiction

         Although 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.

         After 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 ...


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