Jes Solar Co., Ltd. v. Tong Chung

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JES SOLAR COMPANY LIMITED, a No. 16-15504 South Korean Corporation; et al., D.C. No. 4:12-cv-00626-DCB Plaintiffs-Appellees, v. MEMORANDUM* TONG SOO CHUNG, Defendant-Appellant. JES SOLAR COMPANY LIMITED, a No. 16-16091 South Korean Corporation; et al., D.C. No. 4:12-cv-00626-DCB Plaintiffs-Appellees, v. TONG SOO CHUNG, Defendant, and SUNGCHIN KIM, referenced in complaint as S. Chin Kim, Defendant-Appellant. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Argued and Submitted September 11, 2017 San Francisco, California Before: GOULD and WATFORD, Circuit Judges, and SANDS,** District Judge. Plaintiffs, a group of contractors, contracted with Defendant Corporations Matinee Energy, Inc. and Samsun, LLC to—they believed—construct a multi- billion-dollar solar power project. In reality, no project existed. They filed this action for breach of contract, unjust enrichment, conspiracy, fraudulent inducement, and conversion to recover the money they paid into the project. Appellants are two officers of the Defendant corporations. After they failed to respond to summons served through publication (Defendant Sungchin Kim) and by leaving at a place of business (Defendant Tong Soo Chung), the clerk of the district court entered default against them. In a whirlwind of motion practice since, appellants have attempted to set aside the default on procedural grounds and to dismiss the action for failing to state a claim. As an initial matter, we must decide whether we have subject matter jurisdiction over Chung. Diversity jurisdiction requires the parties to be from “different States.” 28 U.S.C. § 1332(a)(1). If a party establishes domicile outside of ** The Honorable W. Louis Sands, United States District Judge for the Middle District of Georgia, sitting by designation. 2 16-15504 the United States, he becomes a “stateless” citizen, destroying diversity jurisdiction under 28 U.S.C. § 1332. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989). The analysis of domicile is “essentially factual,” so we review under a clearly erroneous standard. Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). The district court properly weighed the factors enumerated in Lew v. Moss, 797 F.2d at 750, and did not clearly err in finding Chung to be domiciled in Maryland. The district court rightfully found compelling that Chung had acquired an F-4 non- immigrant visa when he returned to South Korea rather than an F-5 visa for permanent residency. There was no error in finding not credible Chung’s testimony that he intended to remain in Korea, gave no thought to the distinctions between an F-4 and F-5 visa, and could not recall either giving a sworn affidavit in 2002 that he intended to maintain his Maryland home as his primary residence or his political activities in the United States. The district court did not disregard uncontested testimony, as Chung asserts, but rather assessed credibility in ...

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