Palmer v. Orkin Exterminating ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60059
Summary Calendar
CAROLYN G. PALMER,
Plaintiff-Appellant,
versus
ORKIN EXTERMINATING COMPANY, INC.
and MINOR HARWELL,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi
(4:94-CV-2)
November 2, 1995
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Carolyn G. Palmer appeals from the
district court's denial of her motion for remand and from its
subsequent grant of summary judgment for Orkin Exterminating
Company, Inc. (Orkin). Adopting both the conclusions and the
reasoning of the district court, we affirm.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
I.
FACTS AND PROCEEDINGS
In April 1989, Palmer discovered termites in her Mississippi
home and approached Orkin for information on its exterminating
services. Palmer and Orkin thereafter signed a "Subterranean
Termite Agreement" (the Agreement), which provided for an initial
termiticide treatment of Palmer's home, to be followed by the
assignment of a "Limited Lifetime Retreatment Guarantee" (the
Guarantee). Orkin completed its initial treatment of Palmer's home
within the month and promptly issued her Guarantee.
Orkin was less than successful in its first attempt to solve
Palmer's infestation problems. "Swarming" termites resurfaced
periodically for a period of more than four years. Palmer
repeatedly notified Orkin of the insects' reemergence, and Orkin
technicians responded without fail to each of Palmer's calls for
retreatment. Nonetheless, their efforts continually proved
unsuccessful. Palmer ultimately contacted Mississippi State
Department of Agriculture officials, who inspected her house and
determined various deficiencies, under state regulations, in
Orkin's treatment. Orkin complied with the officials'
recommendations; and as of June 1993, the termites were completely
eradicated. Palmer alleges, however, that by then her house had
become uninhabitable.
In December 1993, Palmer filed suit against Orkin and Minor
Harwell, an Orkin employee, in a Mississippi state court. Orkin
and Harwell removed the case to a federal district court, alleging
2
that Harwell had been fraudulently joined to defeat federal
diversity jurisdiction.1 The district court denied a motion by
Palmer to remand the case to state court, dismissed Harwell from
the suit, and retained diversity jurisdiction. Several months
later, after extensive discovery had been conducted by both
parties, the district court granted Orkin's motion for summary
judgment and dismissed the case with prejudice.
Palmer timely filed a notice of appeal, expressing that she
was appealing from the district court's grant of summary judgment
for Orkin and its entry of final judgment. Even though, in her
appellate brief, Palmer also contends that the district court erred
by dismissing Harwell and refusing to remand the case, those
rulings were not mentioned in her notice of appeal.
II.
ANALYSIS
A. APPELLATE JURISDICTION
Before addressing the merits of Palmer's appeal, we must
examine a contention by Orkin that we have no appellate
jurisdiction to hear Palmer's claims concerning Harwell's dismissal
and the district court's refusal to remand. Orkin argues that, as
Palmer's notice of appeal designated only an appeal from Orkin's
motion for summary judgment and the entry of final judgment, we
cannot entertain her challenges to the court's dismissal of Harwell
and refusal to remand, being matters not identified in her notice
1
Palmer and Harwell are Mississippi state citizens; the Orkin
corporation is domiciled in Georgia.
3
of appeal.
It is true that appellants who enumerate particular holdings
in notices of appeal typically cannot later raise additional
rulings for our evaluation.2 Our capacity to review the invocation
of subject matter jurisdiction over a case, however, is independent
of any action--or omission--by the parties. Even if federal
jurisdiction had never been questioned in the district court or on
appeal, we would be obliged to raise the issue sua sponte:3
"Because we may not proceed without requisite jurisdiction, it is
incumbent upon federal courts--trial and appellate--to constantly
examine the basis of jurisdiction, doing so on our own motion if
necessary."4 Thus, we have not only the authority, but also the
duty, to review the district court's assumption of diversity
jurisdiction, regardless of the contents of Palmer's notice of
appeal.
B. MERITS
Having disposed of Orkin's argument regarding the scope of
Palmer's appeal, we turn now to the merits of her challenges to the
2
See Capital Parks, Inc. v. Southeastern Advertising and Sales
System, Inc., 30 F.3d 627 (5th Cir. 1994); NCNB Texas National Bank
v. FDIC, 11 F.3d 1260 (5th Cir. 1994); Pope v. MCI
Telecommunications Corporation, 937 F.2d 258 (5th Cir. 1991), cert.
denied, 504 U.S. 916 (1992); Ingraham v. U.S., 808 F.2d 1075 (5th
Cir. 1987).
3
See Beers v. North American Van Lines, Inc., 836 F.2d 910,
912 (5th Cir. 1988).
4
Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102
(5th Cir. Feb. 1981)(emphasis added); see also FED. R. CIV. P.
12(h)(3); Trizec Properties, Inc. v. U.S. Mineral Products, 974
F.2d 602 (5th Cir. 1992); Beers, 836 F.2d at 912.
4
district court's refusal to remand the case and to its grant of
summary judgment for Orkin, reviewing each determination de novo.5
After carefully evaluating the record on appeal, the arguments of
the parties in their briefs to this court, and the applicable law,
we are convinced that district court "got it right." Accordingly,
we incorporate by reference (1) the unpublished opinion of the
district court dismissing Harwell and denying Palmer's motion to
remand, a copy of which opinion we annex hereto, and (2) the
district court's published opinion granting summary judgment for
Orkin.6 We affirm in all respects the rulings of the district
court and the reasons given by the district court for those
rulings.
AFFIRMED.
5
See NCNB, 11 F.3d at 1264 (applying de novo review to grant
of summary judgment); Carriere v. Sears, Roebuck and Co., 893 F.2d
98 (5th Cir.) (applying de novo review to district court's
dismissal of nondiverse defendants and denial of plaintiff's motion
to remand), cert denied, 111 S. Ct. 60 (1990).
6
Palmer v. Orkin Exterminating Company, Inc., 871 F.Supp. 912(S.D. Miss. 1994).
5