Interesting Domicile Case Involving Kevin Spacey

Special bonus to commenters who can tie this civil procedure question to a line from one of Spacey's movies.

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From Rapp v. Fowler, decided today by Judge Lewis A. Kaplan (S.D.N.Y.):

Plaintiffs commenced this action in the [New York state court] for assault, battery and other torts against Kevin Spacey Fowler, better known as Kevin Spacey. The claims arise out of alleged sexual misconduct involving the two then minor plaintiffs 34 and 40 years ago.

Defendant removed the action to this Court on the basis of alleged diversity of citizenship. He claims that he is a citizen of the State of Maryland and that plaintiffs are citizens of New York.

Plaintiffs have moved to remand the action to the state court. They contend that Spacey is domiciled in the United Kingdom and therefore not a citizen, for diversity purposes, of any state. The motion is supported chiefly by a declaration of plaintiffs' counsel, who does not claim any personal knowledge with respect to Spacey's domicile, and an array of newspaper and magazine clippings and other documents.

Spacey has submitted a declaration asserting that he is a domiciliary of Maryland. Plaintiffs argue, correctly, that the burden of establishing the existence of federal subject matter jurisdiction in this case rests with Spacey. But they would have the Court disregard Spacey's declaration on the theory that it is "self serving" and not "competent." That, however, would be entirely inappropriate.

A person's 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." Linardos v. Fortuna (2d Cir. 1998). Certainly Spacey is the only person who is competent to testify on the basis of personal knowledge with respect to whether "he has the intention of returning" to Maryland "whenever he is absent" although, as in any other case in which intent is in issue, other evidence may shed light on the credibility or lack thereof of his assertion of subjective intention. And the question whether he has his true fixed home and principal establishment in Maryland cannot be decided on the basis of newspaper and magazine clippings and other materials submitted by plaintiffs.

Accordingly, the motion to remand is denied. During the course of discovery, plaintiffs are entitled to seek evidence bearing on the domicile question., but examination of that question must be proportional to the needs of resolving the jurisdictional issue. The parties shall confer within the next two weeks with a view to reaching agreement on the discovery appropriate to that question and shall file a joint report with the Court no later than January 26, 2021 concerning their agreement or, failing an agreement, the boundaries of the dispute. In the meantime, there shall be no discovery on the jurisdictional issue absent consent of both sides. Should the jurisdictional issue remain unresolved after the completion of such jurisdictional discovery as the Court allows, plaintiffs will be permitted to renew their motion.

NEXT: The Violence of Two Words

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  1. Defendant’s domicile? Somewhere, beyond the Sea…

    1. That’s probably it, though I couldn’t help thinking of The Usual Suspects and SPOILER ALERT! how Keyzer Soze (as he was eventually revealed to be) made up a convincing and complicated story on the fly incorporating random bits of information in the interrogation room, like news clippings and notices on the bulletin board and the china manufacturer’s name on his coffee cup.

      1. He was in a barber shop quartet in Skokie Illinois. Maybe That’s where he lives.

    2. If a young man has been touched inappropriately, Kevin Spacey is one of “The Usual Suspects.”

  2. Doesn’t a US citizen abroad inherently have to be a resident of some state? I know a lot who chose FL or NH because they have no state income tax.

    While I don’t doubt that he is probably guilty, how many of us can even remember where we were on January 5, 1981 — let alone be able to prove it… There is a fairness issue here.

    1. ….how many of us can even remember where we were on January 5, 1981 — let alone be able to prove it… There is a fairness issue here.

      For me, that’s easy. I was nowhere. But I do get your point. January 5, 2000 would be hard enough to provide evidence of, much less proof.

      While I don’t doubt that he is probably guilty….

      Not having followed the history of this, why do you say that? Eye-witness testimony has such a poor track-record that its probably better to take it as evidence of innocence.

      1. This, from 2005: https://www.youtube.com/watch?v=wleDc2BVkPU

        Public figure or not, you don’t do something like this without being sure — there are far too many consequences for all involved.

        1. Good point. I know there’s issues …. hell, I’ll say it outright, there’s plenty of child molesters & rapists in Hollywood. Weinstein (not a child molester to my knowledge) but one example. I wish there could be some way for actors/actresses to report for investigation without having to risk libel lawsuits.

    2. If you had asked where I was on January 25, 1981, I can answer that!

      Lajes Field (Terceira Island), Azores.

      I remember because we were installing radar there and got a special feed to watch the Super Bowl live.

      We actually had to watch the AFC/NFC championship games a week later because they taped and then flow in for broadcast.

      1. While I can’t recall my detailed whereabouts on January 25, 1981, I can be pretty sure of where I wasn’t and have a general idea of where I probably was.

        1. “I can be pretty sure of where I wasn’t and have a general idea of where I probably was.”

          Sure but you still need to be able to produce witnesses or receipts as to both points in court if its an issue.

          1. Most people can’t do that for a random day years ago. But your own testimony is admissible, if not conclusive. I can be pretty sure that I was in NYC that day because that was early in my fourth semester of law school. There is nowhere else I would have had a reason to be. If it was a school day, probably a hundred or so people could, then, have attested to my presence. I’m sure none of them now could. And there would be no documentation, since I didn’t have to sign in for classes. If it was a weekend day, I probably didn’t see anyone to whom I was not a stranger, with the possible exception of a bartender, and I am unlikely to have done anything that would make my presence memorable. If someone says I was in Detroit, it is unlikely they could prove that. I’ve never been in Detroit so there’s no documentation and it’s word against word. It would come down to whose testimony the jury believed. The jury would probably not believe I was in Detroit, but it might. If the claim was that I was in Brooklyn (highly unlikely) or the corner of 23d street and 7th avenue in Manhattan (possible, but no specific reason to think so), that would be a closer question.

    3. You can download these movies on the pirate bay website – https://thepiratesbay.club/

  3. Can someone explain to me, because I’m curious, whether it is likely to make a material difference for the outcome of the case whether it is heard in federal court or New York state court?

    1. If it’s held in New York state court, it’s under New York law. If it’s under Federal Court, it’s under Federal Law. Different laws, procedures, precedents, statute of limitations, penalties, etc…..

      1. Incorrect. Federal courts hearing state law claims under diversity jurisdiction apply state law (just as a state court hearing a federal law claim would apply federal law).

        To answer Martinned’s question, the quality and legal ability of the judges Southern District of New York is generally considered to be extremely high. The quality of the judges hearing civil cases on the New York Supreme Court is… not.

        1. Adding that jury pools are different for state and federal cases, which is very often a consideration in removal cases.

        2. Your three dots before the word “not” made me laugh. And I have been before both sets of judges.

          (Unfortunately, the quality of both sets of judges has declined considerably. But Judge Kaplan, whom I have been before a few times, is of great quality.)

        3. Actually, he is right in small part. Procedures in federal court are governed by the Federal Rules of Civil Procedure, while in state court they are governed by state law or rules. In NY, that is the Civil Practice Law and Rules, known as the CPLR. Procedures are mostly the same, but there are some occassional differences.

          A federal action also allows you nationwide subpoena power under Rule 45, while in state court, you have to make an application from one state court to the other.

        4. Jury pools are different but, much much more importantly, juries in federal court must be unanimous because of the Seventh Amendment. Juries in NY state courts do not be. That is almost always good for plaintiffs because it means less chance of compromise verdicts and easier to get a fraction of jury to agree than all.

    2. I’m guessing — just guessing — that the statute of limitations for this sort of thing in Maryland has expired and hence it is a case of the Federal Court deferring to the laws of the state in which it is located.

      1. Sure, but that’s because you’re a moron and have no idea what you’re talking about.

        1. I really wish there were still a way to upvote.

          1. Do either of you know in which state(s) the alleged abuse occurred?

            1. That does not matter here. The issue is subject matter jurisdiction. You have to show that the plaintiffs are citizens of different states than the defendant.

            2. It doesn’t matter for the purpose of diversity, but the alleged event was at Spacey’s NYC apartment in 1986. https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sexual-advance-when-i-was-14 (Sorry.. posted below by accident as well)

              1. Question: Could a NY resident sue another NY resident for abuse which occurred in California?

                I do know that a ME resident can sue another ME resident for an accident that occurred in Massachusetts — the ME SJC said so.

                1. “Could a NY resident sue another NY resident for abuse which occurred in California?”

                  Of course the answer is yes. What you really want to know is can they bring suit in NY courts, CA courts or Federal courts.

                  1. No, which state’s statute of limitations would apply, NY’s or CA’s.

                    1. California’s.

                      Choice of law is sometimes a complicated subject, but that’s an easy one.

  4. ….how many of us can even remember where we were on January 5, 1981 — let alone be able to prove it… There is a fairness issue here.

    For me, that’s easy. I was nowhere. But I do get your point. January 5, 2000 would be hard enough to provide evidence of, much less proof.

    While I don’t doubt that he is probably guilty….

    Not having followed the history of this, why do you say that? Eye-witness testimony has such a poor track-record that its probably better to take it as evidence of innocence.

    1. Reposted in the correct location…….

  5. “I have arrived. My travels are over for the time being.” K-Pax

  6. I think the obvious movie has to be K-PAX:

    Dr. Mark Powell: And where is home?
    Prot (Spacey): K-PAX.
    Dr. Mark Powell: K-PAX?
    Prot: It’s a planet about 2,000 of your ‘light-years’ away.
    Dr. Mark Powell: I see.

  7. Isn’t it kind of laughable that, with Donald Trump and almost half the Republican Party trying to wreck the Constitution, this is what Mr. Volokh finds time to spend his pixels on? I guess his motto is “If you can’t say something nice about someone, don’t say anything at all.”

    1. It’s his blog so he can post about whatever he wants. I assume he’d point out that he has no expertise in the electoral college issues and others here have posted on it. It’s his blog but I’d note that in his area of expertise, he spends much more time posting about some left wing professors at random universities saying stupid things about what people can and cannot say rather than ever posting in fact that Trump campaign literally threatened broadcasters’ license when they aired commercials critical of Trump (and sued broadcasters over it). To Volokh, the true threats to free speech are rando professors and not the President of the United States. It’s his blog and he can post what he wants though.

    2. Isn’t it kind of laughable that, with all the Trump posts scattered all over the internet, you have to comment here? Don’t you have some Trump post just waiting for your special insight?

      1. He doesn’t even have to go all over the internet. There are several Trump posts right here on this blog.

        So if Trump does something outrageous, then all other topics of interest must be shut down? How long does that last? A day, a week, a month?

  8. “Plaintiffs have moved to remand the action to the state court. They contend that Spacey is domiciled in the United Kingdom and therefore not a citizen, for diversity purposes, of any state.”

    The diversity statute also provides for jurisdiction in cases between “citizens of a State and citizens or subjects of a foreign state.”

    Even if Spacey is domiciled in the UK, why is he not a citizen of a foreign state? Because he is a U.S. citizen, albeit one with no state domicile (acc. to the Plaintiffs)?

  9. It doesn’t matter for the purpose of diversity, but the alleged event was at Spacey’s NYC apartment in 1986. https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sexual-advance-when-i-was-14

    1. I am hesitant to say this, but I think we eventually are going to need to draw some line between inappropriate horseplay and rape.

      Inappropriate — it’s damn inappropriate to serve a 14-year-old alcohol, it’s actually a crime (and one that shouldn’t only be selectively prosecuted) but where is the line between boorish behavior and attempted rape? I argue that we need to find one.

      The interesting case against Spacey was on Nantucket Island where he allegedly sexually assaulted a then 17-year-old after buying him multiple drinks. The legal drinking age on Nantucket (and in the rest of Massachusets) is 21. The Commonwealth filed a Nulle Prosque after the purported victim took the Fifth.
      See: https://www.wcvb.com/article/sexual-assault-charges-dropped-against-actor-kevin-spacey-in-nantucket-criminal-case/28425990

  10. This guy needs to go to lock-up on Rikers Island until trial = Kevin Spacey

    There he can meet…..justice.

  11. As a curmudgeon I believe that lawyers who attack declarations as “self-serving” should be subject to a summary motion to strike counsel. This motion to remand was so weak evidentiarily that Rule 11 and 28 USC §1927 come to mind.

    1. Yeah, that’s such a dumb cliché. People who use that argument are either stupid or dishonest. Or they’re time travelers from centuries ago when people couldn’t testify on their own behalf.

  12. Not sure if I understand the plaintiff’s claim. Spacey is either a resident of Maryland or the UK. Wouldn’t the diversity statute apply either way?

    https://www.law.cornell.edu/uscode/text/28/1332

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