Oteeva, LP v. X-Concepts LLC , 253 F. App'x 349 ( 2007 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    November 2, 2007
    No. 06-11181                     Charles R. Fulbruge III
    Summary Calendar                           Clerk
    OTEEVA, LP; OTEEVA LLC; OTEEVA, INC.; TRAVIS BUSTER; WENDY
    BUSTER,
    Plaintiffs - Appellants,
    v.
    X-CONCEPTS LLC; VISION-SCAPE INTERACTIVE, INC.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Northern District of Texas
    3:06-CV-832
    Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    The plaintiffs filed this action in the United States District Court for the
    Northen District of Texas seeking to vacate an arbitration award entered against
    the plaintiffs in Arizona. The district court dismissed the case for improper
    venue and subsequently denied the plaintiffs’ request, raised for the first time
    in a motion for a new trial, to transfer the case to Arizona. The plaintiffs appeal.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11181
    Although not raised by the parties or the district court, we must first
    determine whether we have subject matter jurisdiction to consider this appeal.
    See Energy Mgmt. Corp. v. City of Shreveport, 
    397 F.3d 297
    , 301 n.2 (5th Cir.
    2005) (“This court has an obligation to consider possible objections to our
    jurisdiction sua sponte.”); Howery v. Allstate Ins. Co., 
    243 F.3d 912
    , 919 (5th Cir.
    2001) (same). We have a special obligation to satisfy ourselves not only of our
    own jurisdiction, but that of the district court as well. Bender v. Williamsport
    Area Sch. Dist., 
    475 U.S. 534
    , 541 (1986); Mocklin v. Orleans Levee Dist., 
    877 F.2d 427
    , 438 n.3 (5th Cir. 1989). Our review of the district court’s exercise of
    subject matter jurisdiction is plenary. Smith v. Rush Retail Centers, Inc., 
    360 F.3d 504
    , 505 (5th Cir. 2004).
    Before the district court, the plaintiffs asserted federal jurisdiction under
    9 U.S.C. § 10, the section of the Federal Arbitration Act (“FAA”) that establishes
    the mechanism for vacating an arbitration award. However, we have held
    squarely that “FAA § 10 does not create federal subject matter jurisdiction.”
    Smith v. Rush Retail Centers, Inc., 
    360 F.3d 504
    , 506 (5th Cir. 2004). “It is well
    established that the FAA is not an independent grant of federal jurisdiction.”
    
    Id. at 505.
    Therefore, FAA § 10 provided no basis for the district court to
    exercise subject matter jurisdiction in this case.
    In the plaintiffs’ statement of jurisdiction to this Court, the plaintiffs now
    also assert 28 U.S.C. § 1332, the federal diversity statute, as a basis for
    jurisdiction.
    For diversity jurisdiction, the party asserting federal jurisdiction
    must distinctly and affirmatively allege the citizenship of the
    parties. Failure adequately to allege the basis for diversity
    jurisdiction mandates dismissal. [The plaintiffs] thus bear[] the
    burden of establishing diversity; if [they] fail[] to meet that burden,
    we cannot presume the existence of federal jurisdiction.
    2
    No. 06-11181
    
    Howery, 243 F.3d at 919
    (internal quotation marks, alterations, citations, and
    footnotes omitted).
    Although the plaintiffs assert in their statement of jurisdiction that they
    filed this action pursuant to 28 U.S.C. § 1332, we do not find that statement to
    be accurate. The complaint nowhere mentions § 1332 or diversity jurisdiction.
    More importantly, the complaint—as well as the record generally—contains
    insufficient detail for us to determine the citizenship for diversity purposes of the
    various parties. These jurisdictional defects are not those of the “technical” or
    “formal” variety that can be cured pursuant to 28 U.S.C. § 1653.1 See 
    Howery, 243 F.3d at 920
    (“[I]f there is no evidence of diversity on the record, we cannot
    find diversity jurisdiction, and we must dismiss the action for lack of
    jurisdiction.”).
    Because of the absence of adequate diversity allegations and the lack of
    sufficient evidence of diversity in the record before us, we conclude that the
    plaintiffs have failed to satisfy their burden of establishing federal jurisdiction.
    Because the plaintiffs have failed to meet their burden, we cannot assume that
    jurisdiction exists, and we therefore conclude that the district court lacked
    subject matter jurisdiction in this case.
    For these reasons, we VACATE and REMAND with instructions that the
    district court DISMISS the case for lack of subject matter jurisdiction.2
    1
    Section 1653 provides: “Defective allegations of jurisdiction may be amended, upon
    terms, in the trial or appellate courts.”
    2
    To be absolutely clear: The dismissal for lack of subject matter jurisdiction is based
    solely on the inadequate allegations and factual record before us. The plaintiffs’ brief
    represents that this case has been re-filed in the federal district court in Arizona. This opinion
    should not be read as determining or even considering whether jurisdiction is properly laid in
    that forum, which will of course depend on the particular jurisdictional facts and allegations
    in that case, and thus the dismissal is to that extent WITHOUT PREJUDICE.
    3
    

Document Info

Docket Number: 06-11181

Citation Numbers: 253 F. App'x 349

Judges: Wiener, Garza, Benavides

Filed Date: 11/2/2007

Precedential Status: Non-Precedential

Modified Date: 10/19/2024