     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




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