IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10864
Conference Calendar
KIERON D. PENIGAR,
Plaintiff-Appellant,
versus
BELL HELICOPTER TEXTRON, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-473-A
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December 28, 2001
ON PETITION FOR REHEARING
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
The appellant’s petition for rehearing is GRANTED, our prior
panel opinion is WITHDRAWN, and this opinion is SUBSTITUTED
therefor.
Kieron D. Penigar, Texas prisoner # 721657, appeals the
district court’s dismissal of his in forma pauperis (IFP) complaint
against Bell Helicopter Textron, Inc. (Bell). Penigar sued Bell
for its unauthorized use of his design for a hydraulic lift
transformer. Penigar contended that in 1991 or 1992, Bell began
*
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this opinion should not be published and is not precedent except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. 01-10864
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production of a prototype aircraft, the V22 Osprey, whose tilt
rotor wing design resembled his transformer drawings. The district
court dismissed his suit as frivolous pursuant 28 U.S.C.
§ 1915(e)(2)(B)(i).
Penigar avers that the court abused its discretion in
dismissing his complaint. He contends that he “presented factual
allegations that give merit to his claim” and that he “was not
afforded opportunity to bolster claim with proof.” Penigar also
avers that he has “a key witness to support his claim.”
We dismiss Penigar’s suit without reaching the merits of his
appeal because Penigar has not established the existence of federal
jurisdiction over this case. Although the district court did not
discuss the issue of subject matter jurisdiction, this court must
consider sua sponte whether jurisdiction is proper in this suit.
See Goonsuwan v. Ashcroft, 252 F.3d 383, 385 (5th Cir. 2001). When
prosecuting a suit in federal court, the plaintiff has the burden
of establishing the court’s jurisdiction. Whitmire v. Victus Ltd.,
212 F.3d 885, 887 (5th Cir. 2000).
Penigar appears to assert a trade secret misappropriation
claim against Bell. Nothing in his complaint indicates that he has
a patent or trademark on his transformer idea. Unlike patent and
trademark law, trade secret misappropriation is a matter of state
law. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S.
141, 155 (1989); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d
358, 363 (5th Cir. 2000). Thus, Penigar has not established
federal question jurisdiction in this case.
No. 01-10864
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In a diversity suit, the plaintiff must establish that there
is complete diversity of citizenship between the opposing parties.
Whitmire, 212 F.3d at 887. Penigar, however, has not alleged facts
invoking diversity jurisdiction in this case. In fact, his
complaint indicates that he is a Texas resident and suggests that
Bell is a Texas corporation. He lists Bell as having a Fort Worth,
Texas address and alleges that the company misappropriated his
transformer design when his mother brought his transformer drawings
to the Bell plant near Arlington, Texas.
Because we find no basis for federal jurisdiction in this
case, we vacate the district court’s order dismissing Penigar’s
suit as frivolous and remand with instructions to dismiss this case
for lack of jurisdiction.
VACATED and REMANDED with instructions.