Document Info

DocketNumber: 99-31409

Filed Date: 11/9/2000

Status: Non-Precedential

Modified Date: 4/18/2021

  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 99-31409
    Summary Calendar
    _____________________
    DITMAR HOSPITAL,
    Plaintiff-Appellant,
    versus
    HARTFORD INSURANCE COMPANY OF
    THE MIDWEST; ET AL.,
    Defendants,
    SEARS ROEBUCK & COMPANY,
    Defendant-Appellee.
    _________________________________________________________________
    Appeal from the United States District Court for the
    Eastern District of Louisiana, New Orleans
    USDC No. 98-CV-3215-B
    _________________________________________________________________
    November 9, 2000
    Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
    PER CURIAM:*
    The case is an appeal of the district court’s grant of summary
    judgment for Sears Roebuck and Company in a products liability
    suit.       The district court found that Ditmar Hospital did not
    produce sufficient evidence of liability, and therefore dismissed
    *
    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    this opinion should not be published and is not precedent except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.
    the case against Sears.      At the time the suit was filed in federal
    court, however, complete diversity did not exist between the
    parties.   Thus, Hospital appeals the merits of the dismissal of
    summary judgment, and contends that the federal courts do not have
    jurisdiction   over   this     suit.         Because      we   find   that     the
    jurisdictional defect was cured, and the district court properly
    granted summary judgment, we affirm.
    I
    On May 10, 1998, Ditmar Hospital fell off a stepladder while
    performing work for his employer, Cox Communications New Orleans,
    Inc., in the house of Andrew A. Landry.              Hospital used Landry’s
    aluminum   stepladder,   purchased         from   Sears   five   or   six    years
    earlier, to reach a connection in the attic.              At the time, one of
    the ladder’s rubber footings was missing.                 After climbing and
    descending the ladder several times, Hospital fell from the third
    rung and was injured.
    On November 2, 1998, Hospital, a resident alien residing in
    Louisiana, brought this products liability suit in federal district
    court against Sears, a non-Louisiana resident, under the Louisiana
    Products Liability Act, La. Rev. Stat. Ann. § 9:2800.                  The suit
    also included claims against Landry and Landry’s insurance company,
    both Louisiana residents.      Hospital premised federal jurisdiction
    on 
    28 U.S.C. § 1332
    , claiming diversity as a citizen of Uzbekistan.
    2
    On July 19, 1999, Sears moved for summary judgment, arguing
    that    the    ladder    was    not    unreasonably      dangerous     by    way   of
    construction, composition or design, had no inadequate warnings and
    no express warranty that had been breached.                  The district court
    granted   summary       judgment      for   Sears   on   each    of   the   products
    liability claims on August 19, 1999.
    After   the   grant     of   summary     judgment    to   Sears,     the   case
    proceeded against the remaining plaintiffs. On September 22, 1999,
    Hospital settled his claims against both Landry and Landry’s
    insurance company, Hartford Insurance Company of the Midwest.                      On
    the same day, the district court rendered a Rule 54(b) motion in
    favor of Sears, dismissing, with prejudice, all of Hospital’s
    claims against Sears.
    On October 6, 1999, Hospital moved for a new trial, which the
    court interpreted as a motion to reconsider summary judgment and
    denied on November 12, 1999.            On November 8, 1999, Hospital filed
    a motion to dismiss based on a lack of subject matter jurisdiction.
    The court entered a final judgment on November 16, 1999.                    The court
    denied the motion to dismiss as moot on December 8, 1999, because
    no further claims remained for dismissal.                  Hospital appeals from
    the final judgment entered on November 16, 1999, and from the order
    denying the motion to dismiss as moot.
    3
    Following these proceedings, on January 28, 2000, the plaintiff
    refiled his suit against Sears in Louisiana state court.                   Sears
    removed    the   suit   to   the   district   court   based    on    diversity
    jurisdiction. Thus, the determination in this case may effectively
    resolve the second, identical case.
    II
    Diversity jurisdiction under 
    28 U.S.C. § 1332
    (a) “applies only
    to cases in which the citizenship of each plaintiff is different
    than the citizenship of each defendant.” Caterpillar v. Lewis, 
    519 U.S. 61
    , 68, 
    117 S.Ct. 467
    , 472 (1996). As a resident alien,
    Hospital should have been considered a resident of Louisiana for
    the purposes of § 1332 diversity jurisdiction.         
    28 U.S.C. § 1332
    (a)
    (“For the purposes of this section . . . an alien admitted to the
    United States for permanent residence shall be deemed a citizen of
    the State in which such alien is domiciled.”).         Because both Landry
    and Hartford Insurance, who settled with Hospital on September 22,
    1999, were also Louisiana residents, the case as filed contained a
    jurisdictional defect.
    Federal jurisdiction generally depends on the facts that exist
    when the case is filed. See Newman-Green, Inc. v. Alfonzo-Larrain,
    
    490 U.S. 826
    , 830, 
    109 S.Ct. 2218
    , 2222 (1989).                     It is well
    settled,   however,     that   jurisdictional    defects      can    be   cured.
    Federal Rule of Civil Procedure 21, for instance, allows district
    4
    courts   to   dismiss      dispensable            nondiverse        parties    to   perfect
    jurisdiction.      Newman-Green, 
    490 U.S. at 832
    .                      The Supreme Court
    has recognized that parties “should not be compelled to jump
    through these judicial hoops merely for the sake of hypertechnical
    jurisdictional purity.”              
    Id. at 837
    .    Similarly, the Supreme
    Court has found that the absence of complete diversity at the time
    of removal is not fatal to federal court adjudication, as long as
    federal jurisdiction requirements are met at the time the judgment
    is entered. Caterpillar, 
    519 U.S. at 64
    . Thus, as long as the
    jurisdictional      defect      is    cured       by    the    time    of   judgment,    the
    district court’s judgment is valid.
    Here, although there was a lack of complete diversity when the
    case was filed, and therefore no jurisdiction, the settlement of
    the nondiverse parties cured the jurisdictional defect before the
    final judgment was entered. Hospital settled with Landry and
    Hartford on September 22, 1999.                     Hospital filed his motion to
    reconsider entry of summary judgment on October 6, 1999, and filed
    his motion to dismiss for lack of subject matter jurisdiction on
    November    8,    1999.      The      court       issued      its     final   judgment   on
    November 16, 1999.         Thus, because the jurisdictional defect was
    cured before      the court’s final judgment, the district court had
    jurisdiction to deny the motion for a new trial and issue a final
    judgment.        After    the   final      judgment           was   entered,    the   court
    5
    correctly determined that the motion to dismiss for lack of subject
    matter jurisdiction was moot.
    III
    Hospital sought damages from Sears on all four theories of
    products liability under the Louisiana Products Liability Act
    (“LPLA”):   defective   construction   or   manufacturing,   defective
    design, failure to warn and breach of express warranty.       See La.
    Rev. Stat. Ann. § 9:2800.55-2800.58; Pickett v. RTS Helicopter, 
    128 F.3d 925
    , 928 (5th Cir. 1997). In granting summary judgment, the
    district court determined that Hospital had failed to          produce
    sufficient evidence for any of the products liability claims.
    We review the district court’s grant of summary judgment de
    novo. Transitional Learning Community at Galveston, Inc. v. United
    States Office of Personnel Management, 
    220 F.3d 427
    , 429 (5th Cir.
    2000).   "Summary judgment is appropriate when the evidence, viewed
    in the light most favorable to the nonmoving party, presents no
    genuine issue of material fact and shows that the moving party is
    entitled to judgment as a matter of law."      Kapche v. City of San
    Antonio, 
    176 F.3d 840
    , 842 (5th Cir. 1999)(citing River Prod. Co.,
    Inc. v. Baker Hughes Prod. Tools, Inc., 
    98 F.3d 857
    , 859 (5th Cir.
    1996)(in turn citing Fed.R.Civ.P. 56(c))).
    First, for a claim of defective manufacturing or construction,
    Hospital must prove that the product “deviated in a material way
    6
    from the manufacturer’s specifications or performance standards for
    the product or from otherwise identical products manufactured by
    the   same   manufacturer”   at   the   “time   the   product   left   its
    manufacturer’s control.” La. Rev. Stat. § 9:2800.55.            Hospital
    failed to produce any evidence showing that the ladder failed to
    meet the manufacturer’s specifications at the time it left the
    manufacturer’s control.      In fact, Landry’s testimony indicates
    that, at the time of purchase, the ladder had all its rubber
    footings. Because Hospital had the burden of proving that the
    specifications were not met, we agree with the district court’s
    determination that Sears was entitled to summary judgment on the
    defective composition or construction claim.
    Second, Hospital’s defective design claim requires him to
    prove that “(1) [t]here existed an alternative design for the
    product that was capable of preventing the claimant’s damages”; and
    “(2) [t]he likelihood that the product’s design would cause the
    claimant’s damage and the gravity of that damage outweighed the
    burden on the manufacturer of adopting such alternative design.”
    La. Rev. Stat. Ann. § 9:2800.56.    Hospital did not retain an expert
    or present technical evidence of an alternative design for the
    stepladder that would have prevented his injuries. Showing that
    injury resulted from a product is not sufficient to avoid summary
    judgment under the LPLA.     Theriot v. Danek Medical, Inc., 
    168 F.3d
                                     7
    253, 256 (5th Cir. 1999).       Thus, we find that the district court
    properly    found    that   Hospital       failed   to   introduce   evidence
    supporting the existence of a design defect.
    Third, Hospital claims that the stepladder was unreasonably
    dangerous because it contained an inadequate warning.                La. Rev.
    Stat. Ann. § 9:2800.57.       A warning is not required, however, if
    “[t]he product is not dangerous to an extent beyond that which
    would be contemplated by the ordinary user or handler of the
    product.”   Id.     The ladder was labeled with setup, climbing and use
    instructions. Hospital failed to identify what warning should have
    been made, and how the product was dangerous to an extent beyond
    that contemplated by an ordinary user.              Thus, the district court
    properly granted summary judgment on Hospital’s failure to warn
    claims.
    Fourth, a finding that a product is unreasonably dangerous
    because of a noncomformity with an express warranty requires an
    express warranty by the manufacturer that induced the claimant to
    use the product. La. Rev. Stat. § 9:2800.58. Hospital failed to
    identify any express warranty breached by Sears.               The district
    court therefore correctly granted summary judgment on the breach of
    express warranty claim.
    8
    IV
    Because we find that the district court had jurisdiction to
    enter its final judgment and that it correctly granted summary
    judgment for Sears, the district court’s judgment is
    A F F I R M E D.
    9