(CN) – A women who says a Clear Channel radio personality wrongly identified her as the mother who participated in an attack on a student at her daughter’s school has succeeded in having her case remanded to state court.
Tracey Parson originally filed her lawsuit against Clear Channel and its subsidiary, Capstar Radio Operating Company, in the Philadelphia County Court of Common Pleas. She claimed that radio personality Tarsha Jones aired calls on her show “Jonesy in the Morning” in which Parson was wrongfully identified as the mother who joined her 14-year-old daughter and other high school girls in a brutal attack on a girl that went to her daughter’s school.
Jones allegedly made statements that linked Parson to her childcare business, Kiddie Kare, on the show and also commented about Parson on her Power 99 Facebook page.
Parson claimed that she received death threats, Kiddie Kare’s facilities were vandalized and its business declined as a result of these statements.
The radio companies moved the matter to federal court, based on diversity jurisdiction, but Parson moved to have the case remanded to state court under the assertion that she is actually a resident of New Jersey.
Parson did not dispute her burden of producing sufficient evidence of her residence and, while the defendants argued the burden was not met, Judge Schiller reviewed the case and noted that “the deposition testimony of Parson and her mother, interrogatory responses, and documents produced by Parson – [raise] a genuine issue of fact as to Parson’s domicile. The presumption of continued domicile in Pennsylvania therefore disappears, and [the defendants] bear the burden of proving diversity.”
Schiller wrote that “the critical issue is whether Parson intends to remain in New Jersey indefinitely.” He discussed that while Parson had been living in New Jersey for nearly three years at the time her complaint was filed, “she continued to conduct many of her personal and business activities in Pennsylvania. Indeed, Parson often held herself out as a Philadelphia resident to take advantage of certain privileges of Pennsylvania citizenship, including public schooling for her children.
“However,” Schiller continued, “‘subject matter jurisdiction can never be created by estoppel, even as a sanction for conduct’… Thus, the propriety of Parson’s behavior is not relevant to the issue of her citizenship.”
He concluded that while Parson “spends most of her days in Philadelphia, she returns home to New Jersey every night with her children. She had made improvements to the house she rents and has expressed her desire to purchase the property in the future. Under the circumstances, Parson’s continued ties to Philadelphia do not negate her apparent intention to remain in New Jersey indefinitely. Moreover, any uncertainties should be resolved in favor of remand.”