1The other two defendants have not joined in Zurich’s

motion.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Norman Stanwood, Administrator

of the Estate of Aron Stanwood

v. Civil No. 05-cv-200-JD

Opinion No. 2005 DNH 160

Cambridge Integrated

Services, Inc., et al.

O R D E R

Norman Stanwood, who is the administrator of the estate of

his son, Aron Stanwood, brought a declaratory judgment action in

state court against Cambridge Integrated Services, Inc., Safety

National Casualty Corporation, and Zurich American Insurance

Company, seeking to establish insurance coverage for his claim

against his son’s former employer, Venture Holdings Corporation. 

Defendant Zurich American Insurance Company removed the case to

this court and moves to dismiss the action, asserting that

Stanwood lacks standing and that Venture is a necessary and

indispensable party.1 Zurich alternatively seeks leave to file

an amended answer. Stanwood objects to the motion to dismiss.

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 1 of 9
2

Standard of Review

When, as here, the defendants have filed an answer, a motion

to dismiss is properly considered as a motion for judgment on the

pleadings. See Fed. R. Civ. Pro. 12(c). The standards of

review, however, are the same. See Pasdon v. City of Peabody,

417 F.3d 225, 226 (1st Cir. 2005); Donovan v. City of Haverhill,

311 F.3d 74, 76 (1st Cir. 2002). When considering either motion

the “court must accept all of the nonmoving party’s well-pleaded

factual averments as true and draw all reasonable inferences in

her favor.” Feliciano v. Rhode Island, 160 F.3d 780, 788 (1st

Cir. 1998); accord Doran v. Mass. Turnpike Auth., 348 F.3d 315,

318 (1st Cir. 2003). Neither motion should be granted unless “it

is clear that no relief could be granted under any set of facts

that could be proved consistent with the allegation[s].” Gorski

v. N.H. Dept’ of Corr., 290 F.3d 466, 473 (1st Cir. 2002); accord

Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir.

1991).

Discussion

Aron Stanwood was an employee of Venture Holdings

Corporation in Seabrook, New Hampshire, when he was killed in a

workplace accident in October of 2002. Norman Stanwood, as the

administrator of his son’s estate, brought a wrongful death

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 2 of 9
2The record from the state court declaratory judgment

action, submitted with the removal notice, includes some but not

all of the record of the wrongful death action. Zurich

represents that the wrongful death action remains pending without

a final judgment but has not provided a copy of the record to

support its assertion. Therefore, the status of the wrongful

death case is not clear based on the limited record available. 

3

action in state court against Venture in November of 2004, and

Venture defaulted. Final default was entered in Rockingham

County Superior Court on December 16, 2004. 

On April 27, 2005, Stanwood brought a declaratory judgment

action in Rockingham County Superior Court against Venture’s 

insurance carriers, Safety National Casualty Corporation and

Zurich American Insurance Company, and Safety National’s agent

and administrator, Cambridge Integrated Services, Inc. On June

20, 2005, counsel for Venture responded to the court’s notice of

a structuring conference in the wrongful death action by

submitting a summary statement which noted that Stanwood had

moved to reactivate the wrongful death action when the

declaratory judgment action was completed.2 Venture asked that

all discovery in the wrongful death action be stayed pending

resolution of the declaratory judgment action. 

 Zurich removed the declaratory judgment case to this court

on June 8, 2005, asserting subject matter jurisdiction based on

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 3 of 9
3Although the notice of removal does not indicate that the

other two defendants consented to removal, the time has passed in

which to raise procedural defects in the removal process. 28

U.S.C. § 1447(c).

4

diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1).3 On

October 3, 2005, Zurich moved to dismiss on the grounds that

Stanwood lacks standing to bring the action, based on a “no

action” clause in its policy. Zurich also contends that Venture

is a necessary and indispensable party under Federal Rule of

Civil Procedure 19. In the alternative, Zurich asks for leave to

file an amended answer if the action is allowed to proceed. 

Stanwood objects to the motion.

A. Timeliness

Stanwood contends that the motion to dismiss is untimely

based on the scheduling order, setting February 13, 2006, as the

deadline for summary judgment motions. Stanwood mistakenly

interprets that date as a due date, which would make motions

filed before that date premature. That is not the case. 

Instead, that is the last day on which such motions could be

served. Even if Stanwood’s interpretation were correct, which it

is not, the pending motion is a motion to dismiss, for which no

deadline was set. Therefore, Stanwood’s objection on procedural

grounds is without merit.

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5

B. Jurisdiction

Although neither party raises an issue as to the court’s

subject matter jurisdiction in this case, the court is obligated

to inquire sua sponte as to whether subject matter jurisdiction

exists. Global Naps, Inc. v. Mass. Dep’t of Telecomm. & Energy,

427 F.3d 34, 41 (1st Cir. 2005). Zurich based removal on

diversity of citizenship. See 28 U.S.C. § 1332. As the party

seeking to invoke federal subject matter jurisdiction, Zurich

bears the burden of showing that it exists. See, e.g., Topp v.

CompAir, Inc., 814 F.2d 830, 839 (1st Cir. 1987); Alshrafi v. Am.

Airlines, Inc., 321 F. Supp. 2d 150, 153 (D. Mass. 2004). 

To satisfy the requirements of diversity jurisdiction,

Zurich must show that all of the defendants are citizens of a

state or states that are not the same as the state of Stanwood’s

citizenship. § 1332(a). As the administrator of his son’s

estate, Stanwood’s citizenship for purposes of determining

subject matter jurisdiction depends upon the citizenship of his

son. 28 U.S.C. § 1332(c)(2). Corporations are deemed to be

citizens of the states where they are incorporated and where

their principal place of business is located “except that in any

direct action against the insurer of a policy or contract of

liability insurance, . . . to which action the insured is not

joined as a party-defendant, such insurer shall be deemed a

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 5 of 9
6

citizen of the State of which the insured is a citizen,” in

addition to any other state of which the insurer is also a

citizen. § 1332(c)(1). 

In the notice of removal, Zurich stated that Stanwood is a

“New Hampshire domiciliary” and provided his New Hampshire

address. Zurich did not address Aron Stanwood’s citizenship and

the complaint did not include allegations about where Aron lived

before his death, although he is alleged to have worked in

Seabrook, New Hampshire. With respect to the defendants’

citizenship, Zurich stated that it is a New York corporation with

its principal place of business in Illinois. Zurich failed to

provide jurisdictional information as to the other two

defendants. Stanwood alleged in the declaratory judgment

petition that Cambridge Integrated Services, Inc., does business

at an address in New Jersey and acts as Venture’s New Hampshire

agent. Stanwood alleged that Safety National does business at an

address in Missouri and is licensed to write employers’ liability

and workers’ compensation insurance in New Hampshire. 

Zurich did not provide any jurisdictional information about

its insured, Venture. Based on the allegations in the wrongful

death action complaint Venture, it is a Michigan corporation,

doing business in Seabrook, New Hampshire. See Diaz-Rodriguez v.

Pep Boys Corp., 410 F.3d 56, 60 (1st Cir. 2005) (providing test

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 6 of 9
7

for principal place of business). The court notes that Venture’s

bankruptcy case is proceeding in the Eastern Distict of Michigan,

and that “Venture-Seabrook” is listed as a separate named insured

in Zurich’s policy. 

If New Hampshire were Venture’s principal place of business,

then it would be a New Hampshire citizen, making both Zurich and

Safety National also New Hampshire citizens. Aron Stanwood may

have been a New Hampshire citizen, making his father, as the

administrator of his estate, a New Hampshire citizen. If that is

the case, complete diversity would be lacking, and no other basis

for subject matter jurisdiction in this court exists. Zurich has

not demonstrated that subject matter jurisdiction exists to

support removal of this case.

C. Exercise of Discretion 

In addition, this court has previously addressed the

question of whether to exercise its discretion to hear a state

declaratory judgment action on insurance coverage that had been

removed based on diversity jurisdiction. See Warner v. Frontier

Ins. Co., 288 F. Supp. 2d 127 (D.N.H. 2003). In that case, as

here, the insured was not a party, and the plaintiff had not

obtained judgment against the insured. Id. at 129. Neither

Zurich nor Stanwood has cited that case. The court concluded in

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 7 of 9
4In addition, the state court should consider the

application of Zurich’s asserted “no action” clause in the

context of state declaratory judgment law.

8

Warner that because New Hampshire law about whether jurisdiction

existed to decide such claims was unsettled and because the

insureds were not parties, making any decision of limited effect,

it should decline to exercise jurisdiction to hear the case. Id.

at 130 & 132. 

The same reasoning and result are applicable in this case. 

Because Venture is not a party, any resolution of the coverage

issues here would not be dispositive as to its claims against its

insurers. In addition, to the extent New Hampshire courts may

interpret New Hampshire law to allow a declaratory judgment

action against insurers to be brought by a plaintiff injured by

the insured before judgment is obtained against the insured, that

determination is uniquely a matter of state law that should be

decided first in a state court.4 Therefore, even if Zurich could

show that subject matter jurisdiction exists in this case, the

court declines to exercise jurisdiction to hear the declaratory

judgment action. It is appropriate, however, to remand the case

to Rockingham County Superior Court rather than to dismiss the

case. See id. at 132.

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 8 of 9
9

Conclusion

For the foregoing reasons, the defendant’s motion to dismiss

(document no. 12) is denied, and that part of the motion seeking

leave to file an amended answer is also denied without prejudice

to raising the same issues after remand. The plaintiff’s motion

for leave to file a surreply (document no. 20) is granted and the

memorandum (document no. 21) was considered. The case is

remanded to Rockingham County Superior Court. No award of costs

and fees is appropriate.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

November 21, 2005

cc: Michael F. Aylward, Esquire

Ralph A. Barbagallo, Jr., Esquire

Lee McHarg Holland, Esquire

John P. Malloy, Esquire

Elizabeth C. Sackett, Esquire

Case 1:05-cv-00200-JD Document 23 Filed 11/21/05 Page 9 of 9