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CHAPPELLE v. BEACON COMMUNS. CORP.

September 28, 1994

ALETA CHAPPELLE, Plaintiff,
v.
BEACON COMMUNICATIONS CORP., BEACON FILMS, INC., GHIZNOST PRODUCTIONS, INC., LEON ICHASO, RUDY LANGLAIS and GREGORY BROWN, Defendants.



The opinion of the court was delivered by: DEBORAH A. BATTS

 BATTS, District Judge.

 Defendant Leon Ichaso ("Ichaso") moves to dismiss the Complaint against him, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction, in that he now claims that he is a domiciliary of New York, as is the plaintiff Aleta Chappelle ("Chappelle"), and not of California, as plaintiff asserted in her Complaint. *fn1" Plaintiff Chappelle cross-moves for sanctions, attorney's fees and costs, pursuant to Rule 11 of the Federal Rules of Civil Procedure, alleging that defendant Ichaso's counsel wilfully withheld material information during discovery. As discussed below, the court finds that defendant Ichaso is a citizen of New York, destroying diversity between the parties, and that plaintiff Chappelle's cross-motion is without merit.

 BACKGROUND

 Chappelle, a New York resident, is a motion picture casting director who has worked on several major film productions. Chappelle was retained by defendants Beacon Communications Corp. and Beacon Films, Inc. ("Beacon") through their production company, Ghiznost Productions, Inc., sometime prior to September, 1992, for a film production entitled "Harlem," starring Wesley Snipes. Work on this production was to be performed in California and New York.

 Chappelle commenced her duties for Beacon on September 22, 1992, in Los Angeles, California. Chappelle alleges that from that time until she terminated her professional relationship with Beacon, approximately on October 20, 1992, she was subjected to persistent unwelcome sexual advances from, among others, defendant Leon Ichaso, the film's director. Chappelle alleges that these unwelcome sexual advances culminated on October 20, 1992 with a sexual assault by Ichaso.

 On December 11, 1992, Chappelle filed this action in federal court, alleging discrimination under the United States Constitution and 42 U.S.C. § 1981. Chappelle also alleged violations of rights guaranteed by the California Constitution and state law claims for assault and battery, intentional infliction of emotional distress and breach of the covenant of good faith and fair dealing.

 On November 11, 1993, on motions of two corporate defendants, Judge Michael B. Mukasey, to whom this case originally was assigned, entered an opinion and order dismissing Chappelle's claims under the United States Constitution and 42 U.S.C. § 1981 and Chappelle's claims for assault and battery and emotional distress under New York law. *fn2" Chappelle's remaining claims are for violations of Article I, section 8 of the California Constitution and for breach of contract under California law. Chappelle v. Beacon Communications Corp., 863 F. Supp. 179, 1993 WL 465312 (S.D.N.Y. 1993).

 DISCUSSION

 Resolution of defendant Ichaso's motion to dismiss requires the consideration of evidence outside the pleadings addressing whether he is a citizen of New York, as he claims, or of California, as plaintiff alleges. "On a motion under Fed.R.Civ.P. 12(b)(1) challenging the court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits". Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991) (citations omitted). If, upon reviewing the evidence, it becomes clear that both parties are citizens of the same state, the court must dismiss the claim for lack of subject matter jurisdiction, if no other jurisdictional basis exists. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-74, 57 L. Ed. 2d 274, 98 S. Ct. 2396 (1978); Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990). The party seeking to invoke federal jurisdiction has the burden of proving that diversity exists. National Artists Management Co. Inc. v. Weaving, 769 F. Supp. 1224, 1228 (S.D.N.Y. 1991).

 For purposes of diversity jurisdiction, citizenship of the parties depends upon their places of domicile. Even though a party may have several places of residence, he or she may have only one domicile at a given time. Williamson v. Osenton, 232 U.S. 619, 625, 58 L. Ed. 758, 34 S. Ct. 442 (1914); Hicks v. Brophy, 839 F. Supp. 948, 950 (D.Conn. 1993). Generally, a "domicile" is distinguished from a "residence" by the permanency and scope of the party's presence there. Domicile may be thought of as a person's "home." It is "the place where a person dwells and which is the center of his domestic, social and civil life." National Artists Management Co. Inc. v. Weaving, 769 F. Supp. at 1227 (quoting Restatement of Conflicts 2d §§ 11, 12 (1971), as quoted in 1 J. Moore, J. Lucas, et al., 1 Moore's Federal Practice P 0.74[3.-3] at 707.65 n. 21 (2d ed. 1991)). Specifically, "domicile requires (1) the party's physical presence in the state; (2) the intent to remain in that state indefinitely." National Artists Management Co., Inc. v. Weaving, 769 F. Supp. at 1227; Texas v. Florida, 306 U.S. 398, 424, 59 S. Ct. 563, 576, 83 L. Ed. 817 (1939).

 Where, as here, a party has maintained more than one residence, the court should focus on the party's intent. National Artists Management Co. Inc. v. Weaving, 769 F. Supp. at 1227. "To ascertain intent, a court must examine the entire course of a person's conduct in order to draw the necessary inferences as to the relevant intent." Id. (quoting Brignoli v. Balch, Hardy & Scheinman, 696 F. Supp. 37, 41 (S.D.N.Y. 1988)) (internal quotation marks omitted). Typically, a "totality of the evidence" approach is employed, under which no single factor is conclusive. Id. at 1228. As the court said in National Artists:

 
"Among the influential factors are the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver's and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment", . . . whether the person owns or rents his place of residence, the nature of the residence (i.e., how permanent the living arrangement appears), affiliations with social organizations, and the locations of the person's physician, lawyer, accountant, dentist, stockbroker, etc.

 Id. (quoting 1 Moore's Federal Practice P 0.74[3-3] at 707.64). For diversity purposes, the key moment is the time at which the action was commenced. Freeport-McMoRan v. K N Energy, Inc., 498 U.S. 426, 426-29, 112 L. Ed. 2d 951, 111 S. Ct. 858 (1991); Maryland ...


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