Matthew Barnett v. Bryce's Bail Bonding, Inc. , 534 F. App'x 579 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2311
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Matthew W. Barnett,
lllllllllllllllllllll Plaintiff - Appellant
v.
Bryce’s Bail Bonding, Inc.; Wanda Vickers, Bryce’s Bail Bonding, Inc.; John Doe,
Bryce’s Bail Bonding, Inc.,
lllllllllllllllllllll Defendants - Appellees,
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Appeal from United States District Court
for the Eastern District of Arkansas - Batesville.
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Submitted: September 23, 2013
Filed: October 17, 2013
[Unpublished]
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Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
Arkansas prisoner Matthew Barnett appeals the district court’s1 preservice
dismissal of his civil complaint, without prejudice, for lack of subject matter
jurisdiction. He also challenges the district court’s assessment of a $35 initial partial
appellate filing fee.
We conclude that the district court’s dismissal of the complaint was proper,
because Barnett’s complaint described both himself and defendants as residents of
Arkansas; he provided no other relevant information regarding the parties’ citizenship;
he asserted claims of (1) breach of contract, (2) breach of fiduciary duty, and (3) tort
of outrage; and no federal question was presented on the face of the complaint. See
Fed. R. Civ. P. 12(h)(3) (if court determines at any time that it lacks subject matter
jurisdiction, court must dismiss action); Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987) (federal-question jurisdiction exists only when federal question is
presented on face of complaint); Walker v. Norwest Corp., 108 F.3d 158, 161 (8th Cir.
1997) (plaintiff has burden to plead citizenship of parties when attempting to invoke
diversity jurisdiction); see also Laclede Gas Co. v. St. Charles Cnty., Mo., 713 F.3d
413, 417 (8th Cir. 2013) (de novo review of dismissal for lack of subject matter
jurisdiction); Campbell v. Dovol, Inc., 620 F.3d 887, 891 (8th Cir. 2010) (issues not
raised in trial court cannot be considered by appellate court as basis for reversal).
We further conclude, however, that there was an insufficient basis on which to
assess the $35 initial partial appellate filing fee. See 28 U.S.C. § 1915(b) (if prisoner
files appeal in forma pauperis, prisoner shall be required to pay full amount of filing
fee; court shall assess and, when funds exist, collect, initial partial filing fee of 20
percent of greater of average monthly deposits to prisoner’s account, or average
monthly balance in prisoner’s account for 6-month period immediately preceding
filing of notice of appeal).
1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
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Accordingly, we vacate the district court’s assessment of a $35 initial partial
appellate filing fee, and we affirm in all other respects.
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