Joyce Smith v. Toyota Motor Corporation

Case: 19-60938 Document: 00515608894 Page: 1 Date Filed: 10/20/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60938 October 20, 2020
Summary Calendar Lyle W. Cayce
Clerk
Joyce Ann Smith,
Plaintiff—Appellant,
versus
Toyota Motor Corporation; Diversity Vuteq, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:19-CV-6
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Plaintiff–Appellant Joyce Smith appeals the district court’s dismissal
without prejudice for lack of subject matter jurisdiction. We AFFIRM.
Smith filed a pro se complaint in the district court against Toyota
Motor Corporation (“Toyota”) and Diversity Vuteq, L.L.C. (“Diversity”)
asserting claims under 42 U.S.C. § 1983 and Mississippi state law. After the
district court ordered Smith to file an amended complaint, Smith obtained
counsel and filed an amended complaint. The amended complaint asserted
no federal question jurisdiction and argued that the district court had
Case: 19-60938 Document: 00515608894 Page: 2 Date Filed: 10/20/2020
No. 19-60938
diversity jurisdiction over her state law claim. The amended complaint
alleged that Smith is a citizen of Mississippi, Diversity is a citizen of
Mississippi and Indiana, and Toyota is a citizen of Japan. Defendants moved
to dismiss for, inter alia, lack of subject matter jurisdiction. The district court
held that Smith’s amended complaint, on its face, established that diversity
citizenship did not exist and dismissed the case without prejudice.
We review de novo a district court’s dismissal for lack of subject matter
jurisdiction. United States v. McGill, 74 F.3d 64, 65 (5th Cir. 1996). To
properly allege diversity jurisdiction under 28 U.S.C. § 1332, a party must
allege “complete diversity,” which means that “all persons on one side of
the controversy [must] be citizens of different states than all persons on the
other side.” McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004)
(per curiam).
In this case, Smith’s amended complaint alleged that Plaintiff–
Appellant Smith and Defendant–Appellee Diversity are citizens of the same
state, Mississippi. Accordingly, the district court was correct in holding
there is no diversity jurisdiction and thus no subject matter jurisdiction.
Smith’s altering of the jurisdictional facts she alleges on appeal—
omitting any mention of Diversity’s citizenship in her appellate brief and
alleging only that Diversity is “located” in Indiana in her appellate reply
brief—does not alter our decision. Factual allegations not contained in the
record may not be raised on direct appeal. United States v. Tappen, 488 F.2d
142, 142 (5th Cir. 1973).
Even assuming the altered jurisdictional facts are true, Smith has not
met her burden of establishing complete diversity of the parties. The party
asserting diversity jurisdiction “must ‘distinctly and affirmatively allege [ ]’
the citizenship of the parties.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919
(5th Cir. 2001) (alteration in original) (quoting Stafford v. Mobil Oil Corp.,
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No. 19-60938
945 F.2d 803, 804 (5th Cir. 1991)). To adequately allege the citizenship of
Toyota, a corporation, Smith needed to “set out the principal place of
business of the corporation as well as the state of its incorporation.” Neeley
v. Bankers Tr. Co. of Tex., 757 F.2d 621, 634 n.18 (5th Cir. 1985) (citing Illinois
Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 637 (5th Cir. 1983)). To
adequately allege the citizenship of Diversity, a limited liability corporation,
Smith needed to “specifically allege the citizenship of every member of every
LLC or partnership involved in a litigation.” Settlement Funding, L.L.C. v.
Rapid Settlements, Ltd., 851 F.3d 530, 536 (5th Cir. 2017) (citing Am. Motorists
Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979) (per curiam)).
“Failure adequately to allege the basis for diversity jurisdiction
mandates dismissal.” Howery, 243 F.3d at 919 (internal quotation marks
omitted) (quoting Stafford, 945 F.2d at 805). The district court’s dismissal
without prejudice is AFFIRMED.
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