[Cite as: 232 F.3d 38 (2d Cir. 2001).]
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
- - - - - -
August Term, 2000
(Argued: October 5, 2000 Decided: November 01, 2000 )
Docket No. 00-7020
THOMAS PALAZZO, an infant under the age of Fourteen (14) Years,
by his mother and natural Guardian Joyce Delmage, JOYCE DELMAGE, Individually,
- v. -
RICHARD J. CORIO,
Before: KEARSE, CALABRESI, and SOTOMAYOR, Circuit Judges.
Appeal from a judgment of the United States District Court for
the Eastern District of New York, Eugene H. Nickerson, Judge, dismissing
complaint for lack of diversity jurisdiction.
JOHN P. BOSTANY, New York, New York (Bostany Law Firm, New York, New
York, on the brief), argued for Plaintiffs-Appellants.
WEINER, MILLO & MORGAN, New York (Peter M. Agulnick, New York, New
York, of counsel), submitted a brief for Defendant-Appellee.
KEARSE, Circuit Judge:
Plaintiffs Thomas Palazzo, an infant, and his mother Joyce Delmage appeal
from a judgment of the United States District Court for the Eastern District
of New York, Eugene H. Nickerson, Judge, dismissing their negligence
action against defendant Richard J. Corio for lack of subject matter jurisdiction.
Following an evidentiary hearing before a magistrate judge, the district
court found that at the time this action was commenced, Corio, like plaintiffs,
was a citizen of New York, and hence diversity of citizenship was lacking.
On appeal, Palazzo challenges the sufficiency of the evidence to support
the finding that Corio was a citizen of New York, contending, inter
alia, that there was deposition evidence from Corio and his father
establishing that Corio had changed his domicile to Pennsylvania before
this action was begun and that the court erred in allowing or crediting
contrary evidence at the evidentiary hearing. Finding no merit in plaintiffs'
contentions, we affirm.
In April 1997, Palazzo, a resident and citizen of New York, was struck
and permanently disabled by a car driven by Corio. The accident occurred
in Staten Island, New York, some five minutes away from the home of Corio's
parents. Plaintiffs commenced the present diversity action in December
1997, alleging that Corio was a citizen of Pennsylvania. Corio, contending
that he was a citizen of New York, moved pursuant to Fed. R. Civ. P. 12(b)(1)
to dismiss for lack of subject matter jurisdiction. The district court
referred the motion to Magistrate Judge Roanne L. Mann for an evidentiary
hearing and Report and Recommendation.
At the hearing, the magistrate judge received, inter alia, deposition
testimony of Corio and his father, introduced by plaintiffs, live testimony
by Corio, and documentary evidence from each side. There was evidence that
Corio, who turned 18 in the fall of 1996, was a citizen of New York, physically
residing with his parents until at least March 1997, and that he resumed
his physical residence there in February or March 1998. At his deposition,
Corio had testified that he "moved" to the home of his grandparents in
Pennsylvania in March 1997 because he "just wanted to live there," and
that he then registered and insured his car in Pennsylvania and obtained
a Pennsylvania driver's license.
At the hearing, Corio testified that he had continually regarded his
parents' house as his permanent home and that his March 1997 move to Pennsylvania
had been only temporary: "I was still living at home. All my belongings
were home, . . . and I was just--I just stayed out for a little while with
my grandparents." (Hearing Transcript, April 13, 1999 ("Tr."), at 37.)
Prior to 1997, he had visited his grandparents about 10 times a year. In
March 1997, he had a "disagreement" with his parents over his performance
in college, "so my grandparents said I could stay with them a while until
everything cooled over with my parents." (Tr. 35.)
While staying with his grandparents, Corio continued to attend church
in New York; he continued to attend school in New York, commuting three
days a week from Pennsylvania to Staten Island; he paid tuition as an in-state
New York resident; he did not file a change of address form with his school
or the post office; he did not register to vote in Pennsylvania; he continued
to receive school loan disbursements at his parents' house in New York;
he had a bank account in New York, but not in Pennsylvania; he had a job
in December 1997 in Staten Island; he filed a New York State tax return
for 1997; and he received his 1997 tax refund in New York. While Corio
was in Pennsylvania, his room at his parents' house remained undisturbed;
he had left in his room his stereo, television, VCR, CDs, trophies, clothing,
and other personal property. When he went to stay with his grandparents
in March 1997, Corio took with him "two pairs of jeans[ and a] bunch of
shirts." (Tr. 11.)
The magistrate judge concluded that, though Corio was residing in Pennsylvania
at the time the action was commenced, his move to Pennsylvania was only
temporary and he had remained domiciled in New York. The magistrate judge
thus recommended that the action be dismissed for lack of diversity jurisdiction.
In a Memorandum and Order dated November 3, 1999, the district court adopted
that recommendation over plaintiffs' objections. Judgment was entered dismissing
the complaint, and this appeal followed. Finding no basis for reversal,
A party's citizenship for purposes of the diversity
statute, 28 U.S.C. § 1332 (1994), is a mixed question of fact and
law. See, e.g., Francis v. Goodman, 81 F.3d 5, 7 (1st
Cir. 1996); State Farm Mutual Automobile Insurance Co. v. Dyer,
19 F.3d 514, 518 (10th Cir. 1994); Sheehan v. Gustafson, 967 F.2d
1214, 1215 (8th Cir. 1992). The legal components of the question are well
established. An individual's citizenship, within the meaning of the diversity
statute, is determined by his domicile. See, e.g.,
v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). Domicile is "the place
where a person has his true fixed home and principal establishment, and
to which, whenever he is absent, he has the intention of returning." Id.
at 948 (internal quotation marks omitted). At any given time, a person
has but one domicile. See, e.g., Rosario v. INS, 962
F.2d 220, 224 (2d Cir. 1992). Domicile is established initially at birth
and is presumed to continue in the same place, absent sufficient evidence
of a change. See Linardos v. Fortuna, 157 F.3d at 948.
To effect a change of domicile, "'two things are indispensable: First,
residence in a new domicil; and, second, the intention to remain there.
The change cannot be made, except facto et animo. Both are alike
necessary. Either without the other is insufficient.'" Id. (quoting
Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 383 (1904)).
Questions as to a person's "intent to change, or not to change, his domicile
from [one state] to [another]" are "factual" questions. Katz v. Goodyear
Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984). A party alleging
that there has been a change of domicile has the burden of proving the
"require[d] . . . intent to give up the old and take up the new [domicile],
coupled with an actual acquisition of a residence in the new locality,"
and must prove those facts "by clear and convincing evidence," Id.
at 243-44 (internal quotation marks omitted).
The district court's factual findings as to whether there has been a
change of residence and whether that move was effected with the requisite
intent of permanence may be overturned on appeal only if they are "clearly
erroneous," Fed. R. Civ. P. 52(a) ("Findings of fact, whether based on
oral or documentary evidence, shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to
judge of the credibility of the witnesses."); see Sheehan v.
Gustafson, 967 F.2d at 1215 ("findings of fact upon which the legal
conclusion of citizenship is based . . . are subject to review by this
Court under the clearly erroneous standard"); cf. Rent Stabilization
Ass'n v. Dinkins, 5 F.3d 591, 594 (2d Cir. 1993) (decision as to a
plaintiff's standing to sue, if made "on the basis of the complaint alone
or the complaint supplemented by undisputed facts evidenced in the record,"
is reviewed de novo; "but if the court also resolved disputed facts,
we will accept the court's findings unless they are 'clearly erroneous.'").
Plaintiffs argue, relying on Langman Fabrics v. Graff Californiawear,
Inc., 160 F.3d 106 ("Langman"), amended on other grounds
by 169 F.3d 782 (2d Cir. 1998), that we should instead apply a strictly
novo standard of review. Their reliance is misplaced, for Langman
was an appeal from the granting of a motion for summary judgment; in deciding
such a motion, the district court is only to identify, not resolve, issues
of fact. In contrast, the factual questions that inform a determination
as to federal jurisdiction need not be submitted to a jury and may be resolved
by the court. See,
e.g., Katz v. Goodyear Tire & Rubber
Co., 737 F.2d at 242 n.2 ("In analyzing the propriety of a court['s]
deciding a factual issue on a pretrial motion, we distinguish between jurisdictional
and nonjurisdictional issues. The question of jurisdiction need not be
submitted to a jury."); Sligh v. Doe, 596 F.2d 1169, 1171 (4th Cir.
1979) (citizenship presents a "preliminary question of fact to be determined
by the trial court").
Plaintiffs also contend, relying on Trans-Orient Marine Corp. v.
Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) ("Trans-Orient
Marine"), that the district court was not entitled to consider Corio's
hearing testimony as to his intent to remain domiciled in New York--i.e.,
that he had intended his stay in Pennsylvania to be only temporary--because
Corio had testified at deposition that he moved to Pennsylvania because
he "just wanted to live there." We reject that contention as well. In Trans-Orient
Marine, we discussed the principle, adopted in Perma Research &
Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("Perma
Research"), that, in opposing summary judgment, a party who has testified
to a given fact in his deposition cannot create a triable issue merely
by submitting his affidavit denying the fact. See Trans-Orient
Marine, 925 F.2d at 572. The Perma Research principle addresses
the concern that "[i]f a party who has been examined at length on deposition
could raise an issue of fact simply by submitting an affidavit contradicting
his own prior testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact." Perma
Research, 410 F.2d at 578. Thus, in affirming the granting of summary
judgment notwithstanding an affidavit from Perma Research's president Perrino,
we noted that summary judgment was not foreclosed where the supposed factual
dispute existed "only because of inconsistent statements made by Perrino
the deponent and Perrino the affiant." Id.; see also Hayes
v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir.
1996) ("factual issues created solely by an affidavit crafted to oppose
a summary judgment motion are not 'genuine' issues for trial" (quoting
Research, 410 F.2d at 578)).
The Perma Research principle, however, which is pertinent not
only to summary judgment on the merits of a claim or defense but also to
the resolution of preliminary questions of jurisdiction, is limited in
two respects that are material to the present case. First, the principle
does not apply if the deposition and the later sworn statement are not
actually contradictory. See,
e.g., White v. ABCO Engineering,
Corp., 221 F.3d 293, 304 (2d Cir. 2000). Thus, it does not apply where
the later sworn assertion addresses an issue that was not, or was not thoroughly
or clearly, explored in the deposition, see, e.g., Rule
v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996); in determining whether
an evidentiary hearing is necessary, the district court "should not disregard
the [post-deposition] testimony because of an earlier account that was
ambiguous, confusing, or simply incomplete," Langman, 160 F.3d at
112. An issue of fact warranting an evidentiary hearing "may be revealed
by [a party's] subsequent sworn testimony that amplifies or explains, but
does not merely contradict, his prior testimony." Rule v. Brine, Inc.,
85 F.3d at 1011; see Thomas v. Roach, 165 F.3d 137, 144 (2d
Cir. 1999) (summary dismissal disregarding a party's relevant post-deposition
proffer on an issue is appropriate only where that proffer "contradicts
former testimony during which [the party] had been examined at length on
[that] issue" (internal quotation marks omitted)). In the present case,
although plaintiffs' counsel repeatedly asked Corio whether he had "moved"
to Pennsylvania, Corio was not asked whether he had intended that move
to be permanent. Accordingly, Corio was entitled to testify at the evidentiary
hearing as to whether or not he had that intent.
Second, a party's deposition testimony as to a given fact does not foreclose
a trial or an evidentiary hearing where that testimony is contradicted
by evidence other than the deponent's subsequent affidavit, for when such
other evidence is available, the concern that the proffered issue of fact
is a mere "sham" is alleviated. See, e.g., Delaney v.
Deere & Co., 219 F.3d 1195, 1196 n.1 (10th Cir. 2000) ("While a
party may not defeat summary judgment by contradicting deposition testimony
in a subsequent affidavit, new evidence may furnish a good faith basis
for the inconsistency."). In the present case, the court properly allowed
Corio to introduce documentary evidence to support his contention that
his permanent home had at all relevant times remained in New York with
To the extent that there is a conflict in a witness's testimony, such
a conflict affects the weight of the testimony, not its admissibility.
States v. Rodriguez, 968 F.2d 130, 143 (2d Cir.) cert. denied,
506 U.S. 847 (1992). The weighing of the evidence is a matter for the trier
of fact, not the court of appeals, and the "clearly erroneous" standard
of review is a deferential one. The mere presence of evidence to support
an inference contrary to that drawn by the trier of fact does not mean
that the factual findings were clearly erroneous. See,
v. Chelsea Resources, Ltd., 947 F.2d 611, 618 (2d Cir. 1991). Decisions
as to whose testimony to credit and as to which of competing inferences
to draw are entirely within the province of the trier of fact. See,
Anderson v. Bessemer City, 470 U.S. 564, 573-75 (1985).
Applying the above principles in the present appeal, we find no basis
for reversal. We see neither an error in the district court's application
of the legal principles discussed above, nor, in light of the evidence
in the record, including that described in Part I above, any clear error
in the district court's factual findings. Although contrary factual inferences
might have been drawn, the findings made were not clearly erroneous. We
affirm substantially for the reasons stated in Judge Nickerson's Memorandum
and Order dated November 3, 1999.
We have considered all of plaintiffs' contentions on this appeal and
have found them to be without merit. The judgment of the district court