Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont , 371 F. App'x 135 ( 2010 )

07-4514-cv (L); 07-4647-cv (XAP)
Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26 th day of March, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 PETER W. HALL
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 DURANT, NICHOLS, HOUSTON, HODGSON &
14 CORTESE-COSTA, P.C.,
15 Plaintiff-Appellee-Cross
16 Appellant,
17
18 -v.- 07-4514-cv;
19 07-4647-cv
20 RALPH P. DUPONT,
21 Defendant-Appellant-Cross
22 Appellee.
23 - - - - - - - - - - - - - - - - - - - -X
24
25 APPEARING FOR APPELLEE: LORAINE M. CORTESE-COSTA
26 (Michael Bayonne on the brief),
27 Durant, Nichols, Houston,
1
1 Hodgson, & Cortese-Costa, P.C.,
2 Bridgeport, CT.
3
4 APPEARING FOR APPELLANT: WILLIAM H. CLENDENEN, JR. (Nancy
5 L. Walker on the brief),
6 Clendenen & Shea, LLC, New
7 Haven, CT; Ralph P. Dupont, pro
8 se (Barbara J. Dupont on the
9 brief), The Dupont Law Firm,
10 LLP, Stamford, CT.
11
12 Appeal from a judgment of the United States District
13 Court for the District of Connecticut.
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the judgment of the district court be
16 AFFIRMED. We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 We previously remanded this matter to the United States
19 District Court for the District of Connecticut to supplement
20 “the record with findings as to the citizenship of Dupont,
21 for diversity purposes, at the time this action was
22 commenced.” Durant, Nichols, Houston, Hodgson, &
23 Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 65-66 (2d Cir.
24 2009). Following our remand, the matter was reassigned from
25 Judge Arterton, who decided the merits, to Judge Droney, who
26 addressed the issue of diversity jurisdiction. For
27 diversity jurisdiction to obtain in this case, a
28 determination is required that plaintiff law firm Durant,
29 Nichols, Houston, Hodgson & Cortese-Costa, P.C. (“the Firm”)
2
1 was a citizen of Connecticut when the action was commenced,
2 that defendant Ralph Dupont was not, and that the amount in
3 controversy exceeded $75,000. Of those issues, only
4 Dupont’s citizenship was in dispute; the Firm contended that
5 he was a citizen of Hawaii when the action was commenced
6 (August 16, 2004), while Dupont countered that he was a
7 citizen of Connecticut on that date. See Linardos v.
8 Fortuna, 157 F.3d 945, 947-48 (2d Cir. 1998).
9 On remand, the district court found facts--including
10 Dupont’s repeated claims of Hawaiian domicile, Hawaiian
11 drivers’s license, residence in Hawaii, lack of residence in
12 Connecticut, and Hawaiian tax returns--and concluded that
13 Dupont was a Hawaiian resident on August 16, 2004, that he
14 intended to remain there, and that he, therefore, was
15 domiciled in Hawaii. See Ruling on Motion to Set Aside
16 Default and Motion to Supplement the Record, dated December
17 1, 2009; see also Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.
18 2000) (“To effect a change of domicile, two things are
19 indispensable: First, residence in a new domicil; and,
20 second, the intention to remain there.” (internal quotation
21 marks omitted)). “For purposes of diversity jurisdiction, a
22 party’s citizenship depends on his domicile.” Linardos 157
23 F.3d at 948. “A party’s citizenship for purposes of the
24 diversity statute, is a mixed question of fact and law.”
3
1 Palazzo, 232 F.3d at 42 (internal citations omitted). “The
2 district court’s factual findings as to whether there has
3 been a change of residence and whether that move was
4 effected with the requisite intent of permanence may be
5 overturned on appeal only if they are clearly erroneous.”
6 Id. (internal quotation marks omitted).
7 We agree with the district court that Dupont was
8 domiciled in Hawaii when the action was commenced. The
9 district court therefore had diversity jurisdiction over
10 this matter, see 28 U.S.C. § 1332(a), and we have
11 jurisdiction to hear this appeal, see id. § 1291.
12 The district court’s judgment on the merits is
13 affirmed. See Ruling on Plaintiff’s Motion to Confirm
14 Arbitration Award, dated September 13, 2007. In light of
15 the broad arbitration clauses contained in the two
16 Agreements, it cannot be said that the arbitrator exceeded
17 his powers by considering the 1996 Agreement. While the
18 district court’s submission of the matter to the arbitrator
19 made reference only to the 1992 Agreement, it is uncontested
20 that the 1996 Agreement also provided a valid basis for
21 arbitration. See Conn. Gen. Stat. § 52-408; see also Smiga
22 v. Dean Witter Reynolds, Inc., 766 F.2d 698, 704 (2d Cir.
23 1985) (“An arbitration panel derives its jurisdiction from
24 an agreement of the parties or from an order of a court
4
1 compelling arbitration.”). The arbitrator was entitled to
2 find the disputed terms ambiguous and to examine parol
3 evidence to determine their meaning. See O & G/O’Connell
4 Joint Venture v. Chase Family Ltd. P’ship No. 3, 203 Conn.
5 133, 148 (1987) (“[A]rbitrators are accorded substantial
6 discretion in determining the admissibility of evidence,
7 particularly in the case of an unrestricted submission,
8 which relieves the arbitrators of the obligation to follow
9 strict rules of law and evidence in reaching their
10 decision.” (internal quotation marks and alteration
11 omitted)). Nothing in the record suggests that the award
12 “manifest[ed] an egregious or patently irrational
13 application of the law.” See Garrity v. McCaskey, 223 Conn.
14 1, 10 (1992). Finally, this arbitration decision did not
15 violate “some explicit public policy that is well defined
16 and dominant.” State v. New Eng. Health Care Employees
17 Union, 271 Conn. 127, 135-36 (2004). Dupont cites the
18 professional conduct rule against fee-sharing arrangements
19 between attorneys from different firms; but this does not
20 “rise[] to the level of a well defined and dominant public
21 policy.” See Cheverie v. Ashcraft & Gerel, 65 Conn. App.
22 425, 433 (Conn. App. Ct. 2001) (stating that a rule
5
1 addressing the reasonableness of attorney’s fees does not
2 rise to such a level).
3 On the cross-appeal, we uphold the district court’s
4 denial of the Firm’s requests for prejudgment interest and
5 sanctions, supported on the ground that Dupont advanced an
6 unreasonable contract interpretation in bad faith. The
7 district court properly exercised its ample discretion to
8 deny both requests. See Commercial Union Assur. Co. v.
9 Milken, 17 F.3d 608, 613 (2d Cir. 1994) (“ The decision
10 whether to award prejudgment interest and its amount are
11 matters confided to the district court’s broad discretion,
12 and will not be overturned on appeal absent an abuse of that
13 discretion.”).
14 Finding no merit in the remaining arguments, we hereby
15 AFFIRM the judgment of the district court.
16
17 FOR THE COURT:
18 CATHERINE O’HAGAN WOLFE, CLERK
19
6