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Wednesday, January 06, 2021

More movie stars and diversity jurisdiction

Elizabeth Taylor has company in the Civ Pro canon. The S.D.N.Y. denied a motion to remand in Rapp v. Fowler, an action for sexual assault against Kevin Spacey. (H/T: Volokh Conspiracy). The victims filed the action in New York state court. Spacey removed, alleging he is a Maryland citizen. The plaintiffs moved to remand, arguing that Spacey is domiciled in the U.K., making him stateless and not subject to suit on diversity. The court denied the motion, for now, because the only evidence of Spacey's intent was a declaration from Spacey that he intends to return to Maryland; the contrary evidence was a declaration from the plaintiffs' attorney, who lacks personal knowledge. The court allowed the parties to take jurisdictional discovery and for the plaintiffs to perhaps renew the motion.

Posted by Howard Wasserman on January 6, 2021 at 09:31 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


I think people get hung up on this aspect of (a)(2) because it’s not intuitive based on just the statutory text. Someone on VC raised the same question (maybe it was also David who raised it on VC, but I don’t recall).

For “citizen of a State”, per caselaw, it’s enough to be a “citizen” if you’re domiciled there, etc. But for “citizen of a foreign state” you literally have to be a “citizen” in the sense of what your nationality is. Thus, even if Spacey is truly domiciled in the UK, he’s not a UK national, and thus still not a “citizen” of the UK for purposes of (a)(2). And because the configuration of the parties doesn’t fall into any of the other enumerated categories under subsection (a), viola, no diversity jurisdiction.

So I do think it throws people off a bit at first blush when “citizen” seems to mean two different things in the same statute.

Posted by: hardreaders | Jan 6, 2021 2:41:59 PM

Spacey remains a US citizen, so he is not a citizen or subject of a foreign state for (a)(2) purposes. But he is not a "citizen of a state" because he no longer is domiciled in any state. So he falls through the cracks in the statute, not covered by an provision. This is not an absence of complete diversity-this is a problem that one party, given his unique citizenship, cannot be sued in federal court under this statute.

Posted by: Howard Wasserman | Jan 6, 2021 1:31:52 PM

I'm genuinely puzzled; under section 1332(a)(2), why isn't there still diversity jurisdiction if Spacey/Fowler is an alien and the plaintiffs are citizens of New York? Doesn't the complete diversity rule wipe out jurisdiction only if there are aliens on both sides of the case?

Posted by: David | Jan 6, 2021 1:21:39 PM

I see your point about conclusion/explanation, and agree on the distinction, but I'm still getting hung up on this wording for some reason. Maybe I'm really overthinking it, so please continue to bear with me.

The issue for me is specifically with "subject to suit", or, as tweaked, "subject to the jurisdiction of a federal court ...". For starters, it's obviously *the plaintiff* who's arguing that the relevant court, i.e., the federal one, lacks jurisdiction. But that kind of "subject to ..." phrasing to me would be more natural for *a defendant* trying to avoid a court's jurisdiction. For example, where a defendant raises a personal jurisdiction or foreign sovereign immunity argument.

I can see how as a *practical matter in this particular instance* Spacey could end up (if the plaintiff manages to flip the current ruling) not being subject to suit in federal court--although obviously he's not disputing (as far as we know) his amenability in state court. That said, and I could easily be wrong, I don't see this language being typical in diversity cases. For example, say there was a U.S. state-domiciled defendant, and two plaintiffs, with one from a different state, but the other from the same state (as the defendant). Would it sound right to say the latter plaintiff wasn't "subject to the jurisdiction" of the (federal) court? I just don't think so. It seems more natural to say, regardless of the particular configuration of parties that causes it, that the court "lacks" subject matter and/or diversity jurisdiction *over the case itself*.

You may find that all the above is just gilding the lily on the conclusion and doesn't address the explanation. If so, then I guess we agree on the conclusion, but I still think a different wording of the explanation is needed.

Thanks for indulging me on this pretty minor and tangential point.

Posted by: hardreaders | Jan 6, 2021 11:58:25 AM

You stated the conclusion ("the court lacks diversity jurisdiction"), I stated the explanation for the conclusion ("US citizen domiciled outside US is stateless and is not subject to the jurisdiction of a federal court under 1332").

Posted by: Howard Wasserman | Jan 6, 2021 10:54:42 AM

Just a small possible nitpick. It seems like somewhat awkward phrasing to say "and not subject to suit on diversity". Wouldn't something like "and thus depriving the court of [subject matter/diversity] jurisdiction" be more natural?

Posted by: hardreaders | Jan 6, 2021 10:37:41 AM

Spacey removed to federal court, not, I think, remanded to federal court.

Posted by: J. Bogart | Jan 6, 2021 9:37:07 AM

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