United States v. Hames , 122 F. App'x 706 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2004
_______________________________ Charles R. Fulbruge III
Clerk
No. 03-10930
_______________________________
UNITED STATES OF AMERICA, ET AL.,
Plaintiffs,
MARK E. HAMES, JILL M. HAMES,
Movants - Appellees,
v.
ROBBIE LESA HAMES, CHARLES WILLIAM HAMES,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:01-CR-323-1-R
No. 3:01-CR-323-P
Before GARWOOD, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
In 2001, the appellants, then Texas domiciliaries, were
federally indicted under 18 U.S.C. § 3239 on multiple counts of
medicare fraud, mail fraud, and money laundering. Soon thereafter,
they fled the United States with their three minor children. In
2003, the appellants were apprehended in Spain and extradited to
the United States to stand trial in the Northern District of Texas.
*
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opinion should not be published and is not precedent except under the limited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.
Pursuant to an arrangement made in Kansas, the appellants
relinquished physical custody of their children to the appellees,
in-laws of the appellants and Kansas domiciliaries.
On August 4, 2003, the appellees filed an “Application to
Show Cause and Turn Over Order” in the appellants’ federal criminal
action, requesting reimbursement of $44,365 in child care expenses
and $5,000 in attorneys’ fees from an irrevocable Asian Trust
(“Trust”) previously established (in the Cook Islands) by the
appellants for the care of their children. On August 20, 2003, the
district court granted relief to the appellees in the amount of
$49,365. The appellants filed a motion for reconsideration,
contending that the district court lacked jurisdiction over the
appellees’ application. The appellees opposed the motion,
asserting diversity and federal question jurisdiction. The
district court denied the appellants’ motion, and they appealed.
We have jurisdiction over the instant interlocutory
appeal pursuant to the collateral order doctrine. Brinar v.
Williamson, 245 F.3d 515, 516-17 (5th Cir. 2001). Reviewing de
novo the district court’s determination of its own subject matter
jurisdiction, see Hussain v. Boston Old Colony Ins., 311 F.3d 623,
628 (5th Cir. 2002), we find no basis for federal jurisdiction in
the instant case.
First, the appellees did not properly commence a civil
action in the district court. Although the appellees characterize
their application as civil, they failed to file a complaint with
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the district court as required by FED. R. CIV. P. 3 or to serve
process pursuant to RULE 4. The proceeding otherwise paid no
attention to the FEDERAL RULES OF CIVIL PROCEDURE. There is no
procedural device whereby a civil child support enforcement action
may be tacked onto a federal criminal prosecution.
Second, even assuming proper commencement or some kind of
litigation by consent, the appellees’ application is still subject
to dismissal for want of subject matter jurisdiction. Diversity
jurisdiction does not exist in this matter because the amount in
controversy never exceeded the statutory threshold. See 28 U.S.C.
§ 1332(a)(1). Although the appellees asserted a jurisdictional
amount of $75,000, they only prayed for $49,365 in relief. The
disparity between the asserted jurisdictional amount and the amount
of relief requested evinces a lack of good faith, and the
appellees’ speculative assertion of future child support
reimbursement amounts in excess of the statutory requirement does
not cure this defect. Because it “appear[s] to a legal certainty
that the [instant] claim is really for less than the jurisdictional
amount,” dismissal for lack of diversity is justified. St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S. Ct.
586, 590 (1938).
Third, there is no federal question jurisdiction here:
the substantive basis of the appellees’ application is
§ 151.001(c) of the Texas Family Code. Federal courts are
statutorily vested with jurisdiction over actions arising under and
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based upon the Constitution or laws of the United States, not the
Texas Family Code. 28 U.S.C. § 1331. That appellees may have
desired a federal court order in an effort to pry money from the
foreign Trust neither converts their application into one arising
under federal law nor renders the United States a necessary party
to the proceedings. The appellees’ assertion of 28 U.S.C.
§ 1355(a) is fundamentally misplaced because this is a domestic
relations action for child support, not a recovery or enforcement
action for fine, penalty, or forfeiture authorized by § 1355(a).
Having found no basis for federal jurisdiction, and
appellees’ arguments bordering on frivolous, we reverse the
district court’s order and remand with instructions to dismiss the
appellees’ application.
REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.
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