Stangel v. A-1 Freeman N Amer ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10730
Summary Calendar
FRANK J. STANGEL; FRANK J. STANGEL & ASSOCIATES;
FRANK’S CLUB STORES; GAIL A. CORRENTI,
Plaintiffs-Appellants,
versus
A-1 FREEMAN NORTH AMERICAN INC., an Oklahoma Corporation -
Agent for North American Van Lines; BRUCE ROBERT
NEIDENFEUHR; JOHN A. WENINGER; AGENT FOR NORTH AMERICAN VAN
LINES,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
(3:01-CV-2198-M)
--------------------
March 12, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Frank J. Stangel, individually and on
behalf of his business enterprises,1 and Gail A. Correnti
(collectively “Plaintiffs”) appeal from the dismissal of their
complaint against A-1 Freeman North American Inc. (“Freeman”),
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
For purposes of this appeal, we assume, without deciding,
that Frank J. Stangel & Associates and Frank’s Club Stores are
properly before the court.
Bruce Robert Neidenfeuhr, and John A. Weninger (collectively
“Defendants”). In their complaint, Plaintiffs alleged that
diversity jurisdiction existed, that Defendants had perpetrated
various state-law violations, and that Defendants had violated the
Racketeer Influenced and Corrupt Organizations Act (“RICO”). The
district court dismissed the complaint on grounds that (1) no
diversity jurisdiction existed; (2) Plaintiffs had failed to allege
a RICO claim on which relief may be granted; and (3) federal
jurisdiction did not exist to consider the remaining state-law
claims.
Defendants contend that, because Plaintiffs’ notice of appeal
was timely only as to the denial of their postjudgment motion, the
instant appeal should be dismissed on the ground that, on appeal,
Plaintiffs challenge only the dismissal of their complaint and thus
have abandoned their challenge to the denial of their postjudgment
motion. But, as the district court did not issue a final judgment
of dismissal in a separate document, as required by FED. R. CIV. P.
58, Plaintiffs’ right to appeal is not prejudiced by their failure
to file a timely notice of appeal. See Baker v. Mercedes Benz of
North America, 114 F.3d 57, 60 (5th Cir. 1997). Accordingly, we
shall consider Plaintiffs’ challenge to the dismissal of their
complaint.
In addition, Plaintiffs have filed a motion to strike the
Defendants’ appellate brief and appendix, to stay the proceedings,
and to extend the time for Plaintiffs to file a reply brief in
2
light of the order to strike. Plaintiffs’ motion is frivolous and
is therefore denied.
Plaintiffs argue that the district court erred when it held
that diversity jurisdiction did not exist in this case. We review
dismissals for lack of subject-matter jurisdiction de novo. See
Whatley v. Resolution Trust Corp., 32 F.3d 905, 907 (5th Cir.
1994). Diversity jurisdiction exists only when complete diversity
of citizenship exists and the amount in controversy exceeds
$75,000. See 28 U.S.C. § 1332(a). Plaintiffs’ assertions that
complete diversity of citizenship exists are contradicted by the
allegations in their own complaint. Accordingly, the district
court properly held that diversity jurisdiction is not present in
this case.
Plaintiffs assert that the district court erred by dismissing
their RICO claim under FED. R. CIV. P. 12(b)(6). We also review de
novo a dismissal under FED. R. CIV. P. 12(b)(6). See Oliver v.
Scott, 276 F.3d 736, 740 (5th Cir. 2002). Our plenary examination
of Plaintiffs’ allegations indicate that they did indeed fail to
allege a RICO claim on which relief could be granted. See
Calcasieu Marine Nat’l Bank v. Grant, 943 F.2d 1453, 1464 (5th Cir.
1991). It follows that, because the Plaintiffs’ RICO claim was
properly dismissed and the district court did not have diversity
jurisdiction to hear this case, the remaining state-law claims were
properly dismissed. See Parker & Parsley Petroleum Co. v. Dresser
3
Indus., 972 F.2d 580, 585 (5th Cir. 1992). For the foregoing
reasons, the district court’s dismissal of Plaintiffs’ complaint is
AFFIRMED, and Plaintiffs’ motion to strike, to stay proceedings,
and to extend time to file reply brief is DENIED.
S:\OPINIONS\UNPUB\02\02-10730.0.wpd
4/29/04 11:35 am
4