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Sexual Assault of Child to be Tried in State Court

By Harris Butler

In an April 22, 2009 opinion, U.S. District Judge Henry E. Hudson refused to allow companies who were alleged to have negligently hired or retained a previously-convicted sex offender who assaulted a child to remove the case from state court to federal court. Defendants Dish Network Service, LLC, Echostar Satellite, LLC, Rocking 'R' International, Inc. and Donald Waters were sued in Goochland, Virginia Circuit Court in a civil suit brought by parents of a child who they assert was sexually assaulted by the maintenance worker performing work on a Dish Network home system. The worker, who was convicted of felony sexual assault of a minor in the criminal case, is presently serving a 20 plus year sentence.

The Defendants argued that the worker was a domicile of Maryland and that complete diversity of citizenship between the parties existed, which would have permitted removal to federal court. The Court, however, reviewed the evidence and found that the Defendants failed to meet their burden to establish Maryland domicile for the worker. The Plaintiffs presented evidence that the worker had lived and worked in Virginia prior to his arrest and conviction on the sexual assault charge, and that the Defendants' position (and worker's testimony) were not credible. As the Court writes, 'the exhibits submitted by Plaintiffs demonstrate a substantial and continuing connection between Waters and the Richmond, Virginia area. In contrast to the evidence submitted by Defendants, which shows only a minimal connection between Waters and Maryland, Plaintiffs' exhibits portray Waters as an individual whose personal and professional affairs were centered in and around Richmond, Virginia prior to his incarceration in 2005. Viewed against Plaintiff's substantial evidence to the contrary, Waters contention that he subjectively considered Maryland to be his domicile is simply not credible. Thus, even if Waters was domiciled in Maryland at some point, Plaintiffs' evidence suggests that Waters had switched his domicile to Virginia by early 2005.' Finding no diversity jurisdiction to support removal to federal court, Judge Hudson remanded the case to the Circuit Court for Goochland County.

Harris Butler, Mike Phelan and Rebecca Royals of the law firm Butler, Williams & Skilling, P.C. represent the Plaintiffs in their claims against Mr. Waters and the companies who placed him in their clients' home.

Originally posted at InjuryBoard by Harris Butler

Full post as published by Richmond Virginia Personal Injury Lawyer on April 24, 2009 (boomark / email).