Burditt v. Geneva Capital, LLC ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-50585
Summary Calendar
DARREL BURDITT,
Plaintiff-Appellant,
versus
GENEVA CAPITAL, LLC; MARK WATKINS; STEVE TURNER;
STEPHANIE KAISER; McGINNIS, LOCHRIDGE & KILGORE, LLP;
JANEL MOUNSDON; JANE AND JOHN DOE FROM 1-50; THOMAS
A. JACOBSEN; UCC DIRECT SERVICES; ANN BERNEL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-316
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Darrel Burditt, a Texas resident who is the majority
shareholder in a company called Gamebreaker, Inc.
(“Gamebreaker”), appeals from the district court’s granting of
the defendants-appellees’ motions to dismiss his pro se civil
lawsuit for lack of subject-matter jurisdiction, pursuant to FED.
R. CIV. P. 12(b)(1).
*
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that this opinion should not be published and is not precedent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.
No. 05-50585
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It is not disputed that, in 2003, defendant Geneva Capital,
through some of the defendant attorneys, had obtained a default
judgment in Minnesota state court against Gamebreaker and Burditt
in its lawsuit alleging that Gamebreaker had failed to make
payments on a lease contract. In 2004, other defendant attorneys
for Geneva Capital obtained a Texas state-court judgment
enforcing the Minnesota judgment in Texas. Burditt then filed
the instant civil lawsuit in federal district court, asserting
that the defendants had violated his rights during these state-
court proceedings. He cited 28 U.S.C. §§ 1330, 1331, and 1339 as
bases for jurisdiction. Under the federal-question statute, 28
U.S.C. § 1331, he cited 42 U.S.C. §§ 1981, 1983, 1985, and 1986
as grounds for jurisdiction. In dismissing Burditt’s complaint,
the district court concluded that Burditt had not established
subject-matter jurisdiction under any of these provisions.
We review the dismissal for lack of subject-matter
jurisdiction de novo. Musslewhite v. State Bar of Texas, 32 F.3d
942, 945 (5th Cir. 1994). Burditt had the burden of proving that
such jurisdiction exists. Peoples Nat’l Bank v. Office of the
Comptroller of Currency of the United States, 362 F.3d 333, 336
(5th Cir. 2004). As Burditt has not suggested that diversity of
citizenship exists in this case, see 28 U.S.C. § 1332, he was
required to establish federal-question jurisdiction.
Burditt has failed to establish federal-question
jurisdiction. Burditt’s citation of 28 U.S.C. § 1330 was
No. 05-50585
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inapposite, because that section concerns actions against
“foreign states.” Section 1339, 28 U.S.C., provides for
jurisdiction “of any civil action arising under any act of
Congress relating to the postal service.” Although Burditt has
vaguely suggested that the defendants engaged in mail fraud, he
has not cited a separate statute, “relating to the postal
service,” which establishes a cause of action. See Snapp v.
United States Postal Serv.-Texarkana Mgmt. Sectional Center, 664
F.2d 1329, 1332 (5th Cir. 1982).
The primary basis under which Burditt asserted jurisdiction
was the “general federal question jurisdiction statute,” 28
U.S.C. § 1331. See BP Oil, Ltd. v. Empresa Estatal Petroleos de
Ecuador, 332 F.3d 333, 336 (5th Cir. 2003). Section 1331 itself
does not create an independent basis for jurisdiction. See
Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 442 n.6 (5th Cir.
2002). Because Burditt has not alleged racial discrimination, he
has not stated a claim under 42 U.S.C. § 1981. Insofar as
Burditt has asserted a claim under 42 U.S.C. § 1983, he has shown
neither that the private defendants were acting “under color of
state law” nor that they violated any specific constitutional or
federal right. See Victoria W. v. Larpenter, 369 F.3d 475, 481
(5th Cir. 2004); Richard v. Hoechst Celanese Chem. Group, Inc.,
355 F.3d 345, 352 (5th Cir. 2003). He has effectively abandoned
any claim of jurisdiction under 42 U.S.C. §§ 1985 and 1986. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
No. 05-50585
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Burditt has not demonstrated that the district court abused
its discretion in denying his motion for leave to amend his
complaint for a second time. See Ellis v. Liberty Life Assurance
Co. of Boston, 394 F.3d 262, 268 (5th Cir. 2004).
Burditt’s contention that he was denied his Seventh
Amendment right to a jury trial is meritless, because that right
does not exist with regard to “factual determinations decisive of
a motion to dismiss for lack of subject matter jurisdiction.”
Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981).
Burditt’s various complaints about the district court’s
handling of his case–-including claims that the district court
failed to construe his pro se pleadings liberally, raised issues
sua sponte, and ignored some of his arguments–-do not call into
doubt the district court’s conclusion regarding the threshold
issue of subject-matter jurisdiction. See Ceres Gulf v. Cooper,
957 F.2d 1199, 1202 n.7 (5th Cir. 1992).
The judgment of the district court is AFFIRMED.