Maldonado v. Home Depot U.S.A., Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 16, 2007
Charles R. Fulbruge III
No. 05-51426 Clerk
Summary Calendar
JOSE MALDONADO,
Plaintiff-Appellant,
versus
HOME DEPOT U.S.A., INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
No. 5:04-CV-790
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Jose Maldonado moves to proceed in forma pauperis (“IFP”) on
appeal from the district court’s refusal to remand to state court
and from a summary judgment in favor of Home Depot U.S.A., Inc.
(“Home Depot”). The district court denied IFP status, certifying
that the appeal was not taken in good faith. The motion to proceed
IFP on appeal is construed as a challenge to that certification.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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opinion should not be published and is not precedent except under the limited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. 05-51426
-2-
Maldonado’s personal injury lawsuit against Home Depot is
based on his claim that roofing shingles and supplies that he pur-
chased at a Home Depot store were improperly loaded onto his trail-
er by Home Depot employees, causing a motor vehicle accident after
he left the store. Maldonado sued Home Depot in state court under
the Texas Deceptive Trade Practices Act (“DTPA”) and the common law
of negligence, but Home Depot removed to federal court on the basis
of diversity jurisdiction under 28 U.S.C. § 1332.
Maldonado argues that his case should have been remanded to
state court. Because he did not seek leave to file his motion to
remand until nearly a year after Home Depot filed its notice of
removal, the district court lacked authority under 28 U.S.C.
§ 1447(c) to consider his request to the extent he sought remand on
any basis other than a lack of subject matter jurisdiction. See
FDIC v. Loyd, 955 F.2d 316, 322 (5th Cir. 1992). Because the par-
ties are diverse and record evidence shows that the amount in con-
troversy exceeded $75,000 at the time of removal, Maldonado has no
nonfrivolous basis for claiming that subject matter jurisdiction
was lacking under § 1332. See White v. FCI USA, Inc., 319 F.3d
672, 675 (5th Cir. 2003).
Maldonado claims that the district court erred in granting
summary judgment. After a de novo review, we conclude that summary
judgment was proper. Maldonado failed to adduce evidence in sup-
port of essential elements of his negligence claim, such as why or
how the materials were improperly loaded or how such conduct con-
No. 05-51426
-3-
tributed to his accident and injuries. See D. Houston, Inc. v.
Love, 92 S.W.3d 450, 454 (Tex. 2002). Likewise, there is no record
evidence with respect to the essential elements of the DTPA claim
that Home Depot engaged in false, misleading, or deceptive acts or
that any such acts caused Maldonado’s claimed injuries. See Hugh
Symons Group, PLC v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir.
2002); see also TEX. BUS. & COM. CODE § 17.46. Summary judgment was
therefore proper. See Mason, 274 F.3d at 316.
Maldonado has failed to show that his appeal involves “legal
points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quota-
tion marks and citation omitted). Accordingly, the motion for au-
thorization to proceed IFP on appeal is denied, and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2.
MOTION FOR IFP DENIED; APPEAL DISMISSED.