Tank v. Chronister

160 F.3d 597 (10th Cir. 1998)

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Nature of the Case

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Facts

P filed a wrongful death action in United States District Court. P is a resident of Wisconsin. Decedent was a resident of Kansas at the time of her death. Her husband and an adult daughter were also Kansas residents at the time of her death and at the time this action was filed. Ds are residents of Kansas. Ds filed a motion to dismiss. Ds reasoned that a wrongful death plaintiff in Kansas is deemed to be a citizen of the same state as the decedent. Section 1332(c)(2) provides in part that 'the legal representative of the estate of a decedent shall be deemed to be a citizen of the same State as the decedent.' The court agreed and dismissed as there was not complete diversity. P moved for reconsideration and the district court reversed its ruling, holding § 1332(c)(2) did not apply to individuals who are authorized by state statute to pursue -- in their individual capacities and not on behalf or for the benefit of decedent's estate -- a claim for wrongful death. The court granted P’s motion for reconsideration and certified its decision for interlocutory appeal.