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

Citations: 232 F.3d 38; 2000 U.S. App. LEXIS 27276Docket: 2000

Court: Court of Appeals for the Second Circuit; October 31, 2000; Federal Appellate Court

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Thomas Palazzo, an infant, and his mother Joyce Delmage appealed a dismissal of their negligence lawsuit against Richard J. Corio by the U.S. District Court for the Eastern District of New York, which ruled there was no diversity jurisdiction. The court found that both Corio and the plaintiffs were citizens of New York at the time the lawsuit was filed, negating the basis for diversity jurisdiction. The appeal, argued on October 5, 2000, contended that evidence showed Corio had changed his domicile to Pennsylvania before the lawsuit, but the court upheld the lower court's decision. 

The case originated from an April 1997 incident where Palazzo was struck by Corio's car in Staten Island, leading to Palazzo's permanent disability. In December 1997, the plaintiffs filed the lawsuit, alleging Corio was a Pennsylvania citizen. Corio argued he was a New York citizen and moved to dismiss the case based on lack of subject matter jurisdiction. 

An evidentiary hearing was conducted, where deposition and live testimonies indicated Corio had lived in New York until March 1997, despite registering his car and obtaining a driver's license in Pennsylvania. Corio maintained that his move to Pennsylvania was temporary, as he still considered his parents' home in New York his permanent residence. The magistrate judge's findings supported the district court's conclusion, which was ultimately affirmed by the Circuit Judges.

In March 1997, Corio temporarily moved to his grandparents' home due to a disagreement with his parents regarding his college performance. During this time, he continued to attend school in New York, commuting from Pennsylvania three days a week, paid in-state tuition, and maintained various ties to New York, including a job, a bank account, and filing a state tax return. He did not change his address with the school or post office, nor did he register to vote in Pennsylvania. His personal belongings remained undisturbed at his parents' house in New York. The magistrate judge determined that Corio's stay in Pennsylvania was temporary and that he remained domiciled in New York, recommending dismissal of the action for lack of diversity jurisdiction. The district court adopted this recommendation, and the appeal was affirmed. 

The legal analysis focuses on the definition of citizenship under the diversity statute, emphasizing that citizenship is determined by domicile, which is defined as a person’s true, fixed home to which they intend to return. A change of domicile requires both a physical move to a new location and the intent to remain there, with the burden of proof resting on the party claiming a change. These issues are considered factual questions that must be established by clear and convincing evidence.

Factual findings by a district court regarding a change of residence and the intent of permanence can only be overturned on appeal if deemed "clearly erroneous" under Federal Rule of Civil Procedure 52(a). Findings based on both oral and documentary evidence are preserved unless clearly erroneous, with the appellate court giving deference to the trial court's assessment of witness credibility. The court's legal conclusions regarding citizenship, derived from factual findings, are similarly reviewed under this standard. A determination of a plaintiff's standing to sue, if based solely on the complaint or undisputed facts, is reviewed de novo; however, if disputed facts are resolved by the court, those findings are accepted unless clearly erroneous.

Plaintiffs’ argument for a de novo review standard, based on Langman Fabrics v. Graff Californiawear, is rejected, as that case involved a summary judgment motion where the court identifies rather than resolves factual issues. Jurisdictional questions can be resolved by the court without a jury, distinguishing them from nonjurisdictional issues. The court is tasked with determining citizenship as a preliminary factual question.

Additionally, the plaintiffs claim the district court improperly considered Corio's testimony regarding his intent to remain domiciled in New York, citing a contradiction with his prior deposition. This argument is dismissed in light of the principle established in Trans-Orient Marine Corp. v. Star Trading, which asserts that a party cannot create a triable issue by contradicting previous deposition testimony with an affidavit. This principle aims to prevent undermining the efficacy of summary judgment by allowing parties to raise sham issues of fact. The court affirms that summary judgment can proceed even when inconsistencies exist in a party's statements.

The Perma Research principle applies to both summary judgment on claims and preliminary jurisdiction questions but has two important limitations. First, it is inapplicable when a deposition and a subsequent sworn statement are not contradictory, as established in White v. ABCO Engineering. If a later statement clarifies or amplifies an issue not fully explored in the deposition, it must be considered by the district court, which should not dismiss such testimony due to earlier ambiguous accounts. In the current case, Corio’s intent regarding a move to Pennsylvania was not addressed in the deposition, allowing him to testify about it at the evidentiary hearing.

Second, deposition testimony does not prevent a trial or hearing if contradicted by other evidence beyond the deponent's affidavit. New evidence can provide a legitimate basis for inconsistencies, as seen in Delaney v. Deere, where the court allowed Corio to present documentary evidence supporting his claim of maintaining a permanent residence in New York.

Conflicts in witness testimony affect its weight rather than its admissibility, with the trier of fact responsible for determining credibility and drawing inferences. The appellate court applies a "clearly erroneous" standard of review, meaning mere contrary evidence does not necessitate reversal if the factual findings are supported.

In this appeal, the court found no legal errors in the district court’s application of these principles and no clear error in factual findings, affirming the judgment based on Judge Nickerson’s earlier Memorandum and Order. All plaintiffs' contentions were found to lack merit, leading to the affirmation of the district court's judgment.