Sanders v. Boeing ( 2021 )

Case: 20-10882 Document: 00515965433 Page: 1 Date Filed: 08/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2021
No. 20-10882 Lyle W. Cayce
Clerk
Lee Marvin Sanders; Matthew Sodrok,
Plaintiffs—Appellants,
versus
The Boeing Company; Jamco America, Incorporated;
Kidde Technologies, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-3165
Before Smith, Stewart, and Willett, Circuit Judges.
Per Curiam:*
Plaintiffs-Appellants Lee Marvin Sanders and Matthew Sodrok, flight
attendants, have sued Defendants-Appellees The Boeing Co. (“Boeing”),
Jamco America, Inc. (“Jamco”), and Kidde Technologies, Inc. (“Kidde”)
under Texas tort law for injuries sustained when a smoke detector
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10882 Document: 00515965433 Page: 2 Date Filed: 08/04/2021
No. 20-10882
malfunctioned on one of the Plaintiffs’ flights. The district court sua sponte
dismissed Plaintiffs’ suit for lack of subject-matter jurisdiction and for failing
to follow a court order. Plaintiffs appealed.
For the reasons that follow, we AFFIRM.
I. FACTS & PROCEDURAL HISTORY
Plaintiffs serviced a United Airlines flight from Denver to Houston in
January 2017. Plaintiffs alleged that during the flight, a smoke alarm
accidentally went off, causing an “ear-splitting sound” to fill the cabin. They
further averred that the “excessively loud and unnecessary alarm [was] a
malfunction of the smoke/fire detection system” and that “this malfunction
resulted in Plaintiffs’ ears’ [sic] drums bursting and bleeding, and permanent
hearing loss to Plaintiffs’ ears.”
Plaintiffs—who are represented by counsel—sued, claiming that
Boeing, as manufacturer of the plane carrying the defective smoke detector,
was culpable under Texas law for products liability, negligence, and breach
of implied warranties. Plaintiffs then amended their complaint twice, adding
and removing defendants along the away. For our purposes, Boeing, Jamco,
and Kidde remain as defendants in this lawsuit. Kidde moved to dismiss
Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(2) and (b)(6)
for lack of personal jurisdiction and for failure to state a claim upon which
relief can be granted, respectively. While that motion was pending, the
district court sua sponte ordered Plaintiffs to file another amended complaint
addressing certain jurisdictional deficiencies in the operative pleading. In
response, Plaintiffs filed a third amended complaint, which mooted Kidde’s
motion to dismiss. Concluding that Plaintiffs had failed to follow its
instructions on how to remedy the inadequacy of their pleading, the district
court dismissed their action without prejudice under Federal Rules of Civil
Procedure 12(h)(3) and 41(b). Rule 12(h)(3) directs a court to dismiss a case
2
Case: 20-10882 Document: 00515965433 Page: 3 Date Filed: 08/04/2021
No. 20-10882
if it “determines at any time that it lacks subject-matter jurisdiction,” Fed.
R. Civ. P. 12(h)(3), while Rule 41(b) allows a court to dismiss a lawsuit if
the plaintiff has failed “to comply with . . . a court order,” Fed. R. Civ. P.
41(b).
After the district court dismissed their action, Plaintiffs moved for
reconsideration under Federal Rule of Civil Procedure 60(b)(1) and for leave
to file a fourth amended complaint under Federal Rule of Civil Procedure
15(a)(2). While those motions were pending, Plaintiffs prematurely filed a
notice of appeal. The district court then denied Plaintiffs’ motions, which
allowed Plaintiffs to proceed with their appeal per Federal Rule of Appellate
Procedure 4(a)(4)(B)(i). Plaintiffs did not file an amended notice, which, if
timely filed, would have permitted them to additionally appeal the district
court’s denial of their Rule 60 and Rule 15 motions.
II. STANDARD OF REVIEW
We review de novo the district court’s sua sponte dismissal for lack of
subject-matter jurisdiction. Brainerd v. Sawyer, 54 F. App’x 406 (5th Cir.
2002) (per curiam) (citing Fed R. Civ. P. 12(h)(3) and Musslewhite v. State
Bar of Tex., 32 F.3d 942, 945 (5th Cir. 1994)).
III. DISCUSSION
“[F]ederal courts are courts of limited jurisdiction. They are
empowered to hear only those cases that are within the constitutional grant
of judicial power, and that have been entrusted to them by a jurisdictional
grant enacted by Congress.” Sarmiento v. Tex. Bd. of Veterinary Med. Exam’rs
By and through Avery, 939 F.2d 1242, 1245 (5th Cir. 1991). “The parties can
never consent to federal subject matter jurisdiction, and lack of such
jurisdiction is a defense which cannot be waived.” Coury v. Prot, 85 F.3d 244,
248 (5th Cir. 1996). “If jurisdiction could be waived or created by the parties,
litigants would be able to expand federal jurisdiction by action, agreement, or
3
Case: 20-10882 Document: 00515965433 Page: 4 Date Filed: 08/04/2021
No. 20-10882
their failure to perceive a jurisdictional defect[,]” in contravention of “the
concept of limited jurisdiction.” Giannakos v. M/V Bravo Trader, 762 F.2d
1295, 1297 (5th Cir. 1985). “Therefore, United States District Courts and
Courts of Appeals have the responsibility to consider the question of subject
matter jurisdiction sua sponte if it is not raised by the parties and to dismiss
any action if such jurisdiction is lacking.” Id.Where, as here, a plaintiff brings a purely state-law claim, a federal
court may exercise jurisdiction over that claim if citizenship is diverse among
the parties and the amount in controversy is greater than $75,000. See 28
U.S.C. § 1332. As the parties invoking a federal court’s subject-matter
jurisdiction, Plaintiffs have the burden of establishing diversity of citizenship.
See Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010).
In Plaintiffs’ Second Amended Complaint, the district court
identified two jurisdictional deficiencies pertaining to their diversity
allegations.1 The first was that “Plaintiffs only allege[d] that they—
individuals—reside in Harris County, Texas[.]” The district court correctly
concluded that Plaintiffs had not properly alleged their own citizenship since
“an allegation of residency alone does not satisfy the requirement of an
allegation of citizenship.” MidCap Media Fin., L.L.C. v. Pathway Data, Inc.,
929 F.3d 310, 313 (5th Cir. 2019) (citation and internal quotation marks
omitted).2 Rather, Plaintiffs had to aver where they were domiciled. Preston
v. Tenet Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 797 (5th Cir. 2007).
1
The district court also determined that Plaintiffs had not adequately alleged venue
per 28 U.S.C. § 1391(b). As will soon become apparent, we need not reach the propriety of
this determination to resolve this appeal.
2
Plaintiffs suggest we should not “trouble[]” ourselves with MidCap because “the
case seems very unique.” To the extent Plaintiffs are contending that MidCap is somehow
limited to its facts, we do not see any indication that the decision warrants such a narrow
reading.
4
Case: 20-10882 Document: 00515965433 Page: 5 Date Filed: 08/04/2021
No. 20-10882
The second issue was that Plaintiffs had pled that “Boeing is a domestic
corporation doing business in Texas, [Kidde] is a foreign corporation doing
business in Texas, and that Jamco is a corporation doing business in the
United States.” Once again the district court properly concluded that
Plaintiffs had inadequately averred citizenship for the purposes of diversity
jurisdiction because “allegations regarding the citizenship of a corporation
must set out the principal place of business of the corporation as well as the
state of its incorporation.” MidCap, 929 F.3d at 314 (citation omitted).
The district court then told the Plaintiffs how to fix the defects in their
pleading: (1) aver where Plaintiffs are domiciled and (2) allege the principal
places of business and states of incorporation for each defendant. It provided
Plaintiffs with an opportunity to remedy those deficiencies by filing yet
another amended complaint. But Plaintiffs squandered the opportunity.
First, Plaintiffs once again alleged that they were residents of Harris County.
They also pled Boeing’s and Jamco’s states of incorporation but not their
principal places of business, while they alleged Kidde’s principal place of
business but not its state of incorporation. Without averring their own
domiciles and the principal places of business and states of incorporation for
each of the defendants, Plaintiffs’ jurisdictional allegations remained
insufficient. Thus, the district court did not err in dismissing Plaintiffs’
claims under Rule 12(h)(3). See id. at 313 (“Because federal courts have
limited jurisdiction, parties must make clear, distinct, and precise affirmative
jurisdictional allegations in their pleadings.” (citation and internal quotation
marks omitted)).
Nevertheless, Plaintiffs raise several arguments in favor of reversal, all
of which lack merit. First, Plaintiffs assert that this court should take judicial
notice of the “substantial record evidence” and “publicly available
documents[,]” all of which establish diversity of citizenship. More
specifically, Plaintiffs point to admissions that Defendants made as to both
5
Case: 20-10882 Document: 00515965433 Page: 6 Date Filed: 08/04/2021
No. 20-10882
their principal places of business and states of incorporation, which in turn
show diversity of citizenship. While that may be true for Boeing and Kidde,
it is not true for Jamco, which has admitted only that it “is a corporation
doing business in the United States and has made an appearance herein.”
Demonstrating citizenship for some parties and not others is insufficient. See
McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004). Plaintiffs
also cite to the Civil Cover Sheet that they filed at the initiation of the action.
Assuming arguendo that the Cover Sheet is even evidence of jurisdiction that
the district court could have considered, it does not identify the principal
places of business and states of incorporation for any of the defendants.
Although the facts discussed above do not establish diversity of
citizenship, they do suggest that it exists. “Where, as here, jurisdiction is not
clear from the record, but there is some reason to believe that jurisdiction
exists, the [c]ourt may remand the case to the district court for amendment
of the allegations and for the record to be supplemented.” Molett v. Penrod
Drilling Co., 872 F.2d 1221, 1228 (5th Cir. 1989); see also 28 U.S.C. § 1653(“Defective allegations of jurisdiction may be amended, upon terms, in the
trial or appellate courts.”). Relying on Molett and § 1653, Plaintiffs contend
that we should remand accordingly if we conclude that the record does not
already establish diversity of citizenship.3 “May,” however, does not mean
“must” (even if “§ 1653 is to be construed liberally”). Molett, 872 F.2d at
1228. Key to this court’s decision to remand in Molett, which did so pursuant
to § 1653, was that the party “had no notice, nor should it be charged with
any notice, of a defect in jurisdiction prior to this second appeal.” Id. That is
3
Puzzlingly, Plaintiffs rely upon Stafford v. Mobil Oil Corp., 945 F.2d 803, 806 (5th
Cir. 1991) for the same proposition. In that case, though, this court denied the plaintiffs’
request to correct jurisdictional defects in their pleading. Id. at 805–06. At the very least,
Stafford does not support remand.
6
Case: 20-10882 Document: 00515965433 Page: 7 Date Filed: 08/04/2021
No. 20-10882
not the situation here, where Plaintiffs were given an opportunity to amend
their pleading with instructions on how to properly plead diversity of
citizenship. And Plaintiffs were permitted to conduct third-party discovery
into the manufacturer of the smoke detector. Presumably, they could have
utilized that time to also determine the citizenship of the relevant
defendant(s) if they were unable to otherwise locate that information.
Leigh v. Nat’l Aeronautics & Space Admin., 860 F.2d 652, 653–54 (5th
Cir. 1988), upon which Plaintiffs also rely in support of their request for
remand, is arguably more on point than Molett. In that case, this court
remanded so that the plaintiff could have an opportunity “to make a more
complete statement of the court’s diversity jurisdiction over his claim” since
“diversity jurisdiction was not questioned by the parties and there is no
suggestion in the record that it does not in fact exist.” Id. Here, like in Leigh,
no party contested jurisdiction (at least until the district court’s sua sponte
dismissal) and neither Defendants nor the district court have provided an
indication that diversity of citizenship does not exist (just that Plaintiffs have
not met their burden to establish it). But, as with Molett, Leigh may be
distinguished on the ground that the plaintiff there did not previously have
the occasion to reallege facts supporting jurisdiction (nor a roadmap, for that
matter, on how to do so). As Plaintiffs acknowledge, Molett and Leigh are
premised on the principle that a court should be “much more lenient in
allowing . . . amendment to resolve any diversity issues” when “attacks on
diversity do constitute surprise[.]”As a corollary, with no surprise comes less
leniency.4
4
For this reason, MidCap does not compel remand of this action. Relying on the
above-quoted language from Molett, MidCap remanded the case to the district court for
jurisdictional fact finding. 929 F.3d at 316. But, as Boeing asserts, “[i]n MidCap, neither
7
Case: 20-10882 Document: 00515965433 Page: 8 Date Filed: 08/04/2021
No. 20-10882
Finally, Plaintiffs argue that this court, “rather than remand, could
invite an amendment on appeal to remedy any questions concerning
diversity.” But we should do so only “[w]here jurisdiction is clear from the
record[.]” Molett, 872 F.2d at 1228. As noted above, that is not the situation
here.
In sum, Plaintiffs have not convinced us that the district erred in
dismissing this case for lack of subject-matter jurisdiction.5
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
the district court nor the parties had made an adequate record of the court’s subject-matter
jurisdiction.” As discussed, that is not the case here.
5
The parties spill much ink over whether the district court also properly dismissed
Plaintiffs’ case pursuant to Rule 41(b). Because “this court may affirm on any basis
supported by the record,” CBE Grp., Inc. v. Lexington L. Firm, 993 F.3d 346, 352 n.1 (5th
Cir. 2021) (citation and internal quotation marks omitted), we decline to reach those
arguments. And since we affirm the district court’s ruling, we need not consider Plaintiffs’
request for reassignment upon remand (assuming Plaintiffs even adequately requested that
relief in their opening brief).
Finally, we emphasize that the scope of our review is limited to the district court’s
dismissal of Plaintiffs’ claims; it does not include the lower court’s denial of Plaintiffs’
motions for reconsideration and leave to amend. Perhaps had Plaintiffs also appealed those
rulings, the outcome of this appeal may have been different. Indeed, at least one of the
defendants—Boeing—admits that Plaintiffs’ proposed Fourth Amended Complaint
“would have established complete diversity among the parties.” But we may only consider
what the appellant asks of us, no more, no less.
8