Gonzalez v. De La Grana

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40403
Summary Calendar
ISABEL GONZALEZ,
Plaintiff-Appellant,
versus
FRANK DE LA GRANA, and Law Offices of Frank De La Grana,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CV-181
____________________
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Isabel Gonzalez, federal prisoner #94143-079, appeals from the
dismissal with prejudice of his civil action. Gonzalez’s federal-
law claim under the Racketeer Influenced and Corrupt Organizations
Act (RICO) was dismissed for failure to state a claim on which
relief may be granted, pursuant to FED. R. CIV. P. 12(b)(6), and his
state-law claims were dismissed for lack of subject-matter
jurisdiction because the amount in controversy was less than
*
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that this opinion should not be published and is not precedent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.
$75,000.1 Gonzalez contends that the district court erred by
dismissing his RICO claim for failure to state a claim on which
relief may be granted; that the district court erred by dismissing
his state-law claims for lack of subject-matter jurisdiction; and
that the district court erred by dismissing his state-law claims
with prejudice instead of dismissing them without prejudice.
The district court did not err by dismissing Gonzalez’s RICO
claim for failure to state a claim. Gonzalez’s factual allegations
did not give rise to any of the offenses listed as predicate acts
upon which a pattern of racketeering activity could be based.2
Therefore, dismissal was proper.3
The dismissal of Gonzalez’s state-law claims for lack of
subject-matter jurisdiction was not erroneous, as the actual amount
in controversy was less than $75,000.4 First, because Gonzalez’s
civil RICO claim failed on its face to state a claim upon which
relief could be granted, the district court need not have added the
amount requested in conjunction with that claim to the amounts
requested in the state-law claims to determine the amount in
controversy.5
1
See 28 U.S.C. § 1332(a).
2
See 18 U.S.C. § 1961(1).
3
See McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158,
160 (5th Cir. 1995).
4
28 U.S.C. § 1332(a).
5
Burns v. Anderson, 502 F.2d 970, 971-72 (5th Cir. 1974).
2
Second, Gonzalez’s state-law tort claims were claims of
attorney malpractice under Texas law.6 Gonzalez has failed to have
his North Carolina federal conviction overturned; he thus may not
pursue any state-law tort claims against the defendants.7 The
amounts sought in conjunction with the state-law tort claims need
not have been considered when determining the amount in
controversy.
Third, Gonzalez may not obtain punitive damages for breach of
contract.8 Gonzalez alleged that he paid defendant de la Grana
$10,000 to retain him, and the record from Gonzalez’s North
Carolina criminal case indicated that he paid his attorney there
$2,000. Gonzalez cannot recover $75,000 in damages. The district
court did not err by dismissing the state-law claims for lack of
diversity jurisdiction because Gonzalez failed to satisfy the
minimum jurisdictional amount.9
Finally, the district court erred by dismissing Gonzalez’s
state-law claims with prejudice. Because the dismissal of those
claims was jurisdictional in nature, we modify the judgment as to
Gonzalez’s state-law claims only to operate without prejudice.10
6
See Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. Ct. App.
1997).
7
See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex.
1995).
8
Manges v. Guerra, 673 S.W.2d 180, 184 (Tex. 1984).
9
See 28 U.S.C. § 1332(a).
10
FED. R. CIV. P. 41(b).
3
The district court did not err by dismissing Gonzalez’s civil RICO
claim with prejudice.
AFFIRMED AS MODIFIED.
4