F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BIGLER JOBE STOUFFER, II,
Trustor/Custodian,
Plaintiff-Appellant,
and No. 97-5195
(D.C. No. 96-CV-1034)
FAMILIES AGAINST INJUSTICE (N.D. Okla.)
TO HUMANITY, Beneficiary of
Trust (sued as F.A.I.T.H.),
Plaintiff,
v.
STIFEL, NICOLAUS & COMPANY,
INC., of St. Louis Missouri, Trustees,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff appeals the district court’s dismissal of his claims for fraud,
deception, and conversion of certain accounts held by defendant under the
“Uniform Transfer to Minors Act.” See R. Vol. I, tab 1 at 1 (complaint). In his
complaint, plaintiff cites 28 U.S.C. §§ 1331, 1332, and 1964 as jurisdictional
bases for his action. The district court dismissed the action on several alternative
grounds, including that plaintiff’s claims were not brought within the statute of
limitations, failure to comply with the Federal Rules of Civil Procedure, and
failure to state a claim upon which relief can be granted. The district court did
not examine its jurisdiction, except to note that it “declines to address the
jurisdictional validity of the statutes pled in view of the dismissal of the
complaint as stated herein.” R. Vol. I, tab 22 at 9 n.3.
The statutes plaintiff cites as jurisdictional bases are the diversity of
citizenship statute (§ 1332), federal question (§ 1331), and constructive notice
of pending actions involving real property (§ 1964). Plaintiff has not established
diversity of citizenship, because the complaint does not identify the citizenship
of plaintiff entity F.A.I.T.H. For diversity jurisdiction to exist, no plaintiff may
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have the same citizenship as any defendant. See § 1332(a)(1). A presumption
against jurisdiction exists, and the party invoking jurisdiction bears the burden
of proof. See Penteco Corp. Ltd. Partnership v. Union Gas Sys., Inc. , 929 F.2d
1519, 1521 (10th Cir. 1991).
To determine whether a party has adequately presented facts
sufficient to establish federal diversity jurisdiction, appellate courts
must look to the face of the complaint, ignoring mere conclusory
allegations of jurisdiction. The party seeking the exercise of
jurisdiction in his favor must allege in his pleading the facts essential
to show jurisdiction. Where the pleadings are found wanting, an
appellate court may also review the record for evidence that diversity
does exist.
Id. (quotation and citations omitted). The complaint and record in this case are
silent as to even the legal nature of plaintiff F.A.I.T.H., let alone its citizenship.
Plaintiff has failed to establish diversity jurisdiction.
Plaintiff also claims federal question jurisdiction. Again, neither the
complaint nor any other part of the record identifies any federal question.
Plaintiff has identified no laws of the United States of which defendant is in
violation, nor has he cited Constitutional origin for this action. See 28 U.S.C.
§ 1331.
Finally, § 1964 has nothing to do with federal court jurisdiction and has no
application whatsoever to this action. Plaintiff has failed to establish federal
court jurisdiction. The appeal is DISMISSED, and we REMAND the case to the
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district court with instructions to vacate its order of August 14, 1997, and dismiss
the case for lack of jurisdiction.
ENTERED FOR THE COURT
PER CURIAM
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