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SAWYER v. WIGHT

February 21, 2002

ROBERT SAWYER AND KELLY SAWYER, PLAINTIFFS,
V.
PAUL WIGHT A/K/A "THE GIANT" AND A/K/A "BIG SHOW", MARRIOTT INTERNATIONAL, INCORPORATED, D/B/A LONG ISLAND MARRIOTT HOTEL AND CONFERENCE CENTER AND WORLD CHAMPIONSHIP WRESTLING, INCORPORATED A/K/A "WCW", DEFENDANTS.



The opinion of the court was delivered by: Platt, District Judge.

  MEMORANDUM AND ORDER

For the reasons stated below: (1) Marriott's motion is DENIED; (2) Wight's motion is GRANTED; and (3) Sawyer's motion is GRANTED.

BACKGROUND

This is a tort case that sounds in negligence. Jurisdiction is predicated on diversity.

Wight filed a statement of material fact for which he feels there is no genuine issue for trial pursuant to Local Civil Rule 56.1 ("56.1 Statement") in support of his Motion for Summary Judgment. Marriott also filed a 56.1 Statement in support of its Motion for Summary Judgment. Neither Wight nor Marriott filed counter-56.1 Statements in opposition to Sawyer's Cross-Motion for Summary Judgment.

Sawyer filed a counter-56.1 Statement in opposition to Wight's and Marriott's respective Motions for Summary Judgment. Sawyer neglected to file a 56.1 Statement in support of his Motion for Summary Judgment though. Because the parties' 56.1 Statements are insufficient to develop the factual record, the following factual rendition comes from a variety of sources, including a security surveillance tape from the Marriott lobby on the night in question.

A. Factual Background

Sawyer is "gangly a six-foot-six, 225 pound contractor" who is a citizen of New York. (Scher Reply Aff. Ex. 1.) Wight is a "six-foot-eleven, 420 pound behemoth professional wrestler" who is a citizen of Georgia. (Scher Reply Aff. Ex. 1.) Marriott is a Delaware corporation with its principal place of business in Washington, D.C. (Notice of Removal at 2.)

The events leading to this motion began in the waning hours of June 15, 1998, following a wrestling match that had taken place in Nassau Coliseum earlier that evening. (Levine Aff. in Supp. ¶ 6; Levine Aff. in Opp. ¶ 5.) Around 12:15 A.M. on January 16, 1998, Wight approached the Marriott front desk in the hotel lobby. (Levine Aff. in Opp. ¶¶ 12, 17, Ex. G; Scher Aff. ¶ 9.) A large crowd had been gathering in the hotel lobby for more than one hour before Wight arrived. (Levine Aff. in Opp. ¶¶ 12, 17, Ex. G; Scher Aff. ¶ 9.)

The crowd in the hotel lobby was sufficiently unruly that Marriott security personnel observing it requested permission to call the police several times. (Pl.'s 56.1 Stmnt. ¶ 2; Levine Aff. in Opp. ¶¶ 13, 15.) Marriott nonetheless contends that everyone in the lobby, except Sawyer, was "well-behaved and completely non-threatening." (Marriott's 56.1 Stmnt. ¶ 2.)

In any case, Sawyer walked up to Wight at the front desk immediately after Wight entered the lobby and began passing derogatory remarks to him. (Levine Aff. in Opp. Ex. G; Scher Aff. ¶ 9.) Wight initially ignored Sawyer's heckling and turned his back on Sawyer. (Levine Aff. in Opp. Ex. G; Scher Aff. ¶ 9.)

Sawyer's harassment crescendoed though. He chanted "the Giant sucks, Nash*fn1 is great" and executed a "degeneration X" in Wight's direction.*fn2. (Scher Aff. ¶ 9.) Wight's patience eventually ran out, and the wrestler turned to face Sawyer who was still several feet away. (Levine Aff. in Opp. Ex. G; Scher Aff. ¶ 9.)

Wight advanced on Sawyer, and Sawyer apparently lunged at Wight. (Marriott's Mem. in Supp. Mot. to Dismiss at 2.) Wight responded to Sawyer's advance by punching Sawyer once in the face.*fn3 (Levine Aff. in Opp. Ex. G; Scher Aff. ¶ 9.) Sawyer dropped from the punch, and Wight returned to the front desk. (Levine Aff. in Opp. Ex. G.)

B. Procedural History

Following the aforementioned events, the Nassau County District Attorney's Office criminally prosecuted Wight in Nassau County District Court ("County Court") for allegedly violating New York Penal Law Section 120.00(1), Assault in the Third Degree. (Scher Reply Aff. Ex 1.) On March 10, 1999, Nassau County District Court Judge Thomas Feinman acquitted Wight on those charges. (Scher Reply Aff. Ex 1.) Judge Feinman ruled that while Wight had intentionally struck Sawyer and fractured his jaw, Sawyer was the initial aggressor, and Wight was therefore justified in employing physical force to defend himself. (Scher Reply Aff. Ex 1.)

Sawyer subsequently commenced this action in the Supreme Court of the State of New York, County of Nassau on October 24, 2000. (Scher Aff. Ex. 1.) On October 31, 2000, Marriott removed the action to this Court pursuant to 28 U.S.C. § 1441(a). Marriott predicated federal subject matter jurisdiction on diversity, alleging that "plaintiffs [sic] are residents of the County of Nassau, State of New York," that Marriott is "incorporated in Delaware with its principle place of business in Washington, D.C.," and that Wight is "a resident of Georgia." (Notice of Removal at 2.)

On November 13, 2000, Marriott answered the Complaint and asserted several affirmative defenses, including improper service of process. On January 29, 2001, Wight answered the Complaint and counterclaimed against Sawyer for assault and battery. Wight also cross-claimed against Marriott. Sawyer answered Wight's counterclaim on February 14, 2001.

On February 1, 2002, the parties appeared for oral argument on these motions. At that appearance, the Court sua sponte raised subject matter jurisdiction questions because Marriott's removal notice stated only Sawyer's and Wight's residencies and not their citizenships.*fn4 The parties eventually stipulated that when the action was commenced: (1) Sawyer was a citizen of New York; and (2) and Wight was a citizen of Georgia. The Court accordingly concluded that full diversity ...


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