Gordon v. Steele,

376 F. Supp. 575 (W.D. Pa. 1974)


Gordon (P) claimed that her wrist was injured and was treated by Steele (D) and diagnosed that there was no fracture. Another physician at the hospital also came to the same conclusion. P’s wrist was fractured and P endured pain and hospitalization and partial disability. The injury occurred in February 1972. P claimed that D wrongfully diagnosed her condition and that she endured continuing pain and disability resulting in hospitalization and that the wrist remained partially disabled because of D's negligence. P brought this suit for malpractice for this negligent diagnosis in federal court. P claimed diversity because she was now residing in Idaho. On August 9, 1972, P enrolled in Ricks College at Rexburg, Idaho where she rented an apartment which she has retained ever since. Ds on January 21, 1974, moved to dismiss for lack of diversity. Under Section 1332(a)(1) a federal court can hear a suit arising under state law if the damages are more than $75,000 and the defendants and plaintiffs are citizens of different states. D filed a motion to dismiss for lack of diversity. Her prior address was in Pennsylvania and the suit would fail the diversity test if that was found to be her residence. D claimed that P still resided in Pennsylvania because of college records that listed Erie as her address on her application and for other records, summer work, a bank account, a driver's license and her return home for Christmas vacation. Furthermore, while the college was a Mormon, school, P was a woman and was not expected to perform missionary work abroad. P asserted that her intention was not to return to Pennsylvania, she had an apartment in Idaho, and only came back to Pennsylvania for summer vacation and medical treatment. P only visited over Christmas to be deposed and to keep medical appointments and had not returned for any other vacations. P intended to marry into the Mormon faith and there was a greater opportunity in Idaho than in Pennsylvania. P became a member of Blue Cross of Idaho. D intended to live in Idaho permanently and to retain her ties to the Mormon Church. After graduation, D was intending to relocate in the U.S. or abroad.