Case: 10-31096 Document: 00511736784 Page: 1 Date Filed: 01/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 25, 2012
No. 10-31096 Lyle W. Cayce
Clerk
RICHARD A. ARENA, JR., d/b/a Water-Tite Roofing
Plaintiff-Appellee
v.
GRAYBAR ELECTRIC COMPANY, INC.; STEVENS LAND &
CONSTRUCTION, L.L.C.,
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Louisiana
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
GRAVES, Circuit Judge.
This appeal arises from the district court’s denial of the defendants’ post-
trial motions. In a bench trial, the district court dismissed the plaintiff’s Miller
Act claim, the basis of his federal jurisdiction, for failure to secure a bond as
required by the statute. The court proceeded on plaintiff’s remaining state-law
contractual claims by asserting pendent jurisdiction. It found in favor of the
plaintiff. After the trial concluded, the court allowed plaintiff to amend his
complaint by claiming that diversity allegedly existed at the beginning of the
lawsuit. The defendants urged that the court lacked subject-matter jurisdiction
and could not allow plaintiff to amend his complaint. The defendants submitted
Case: 10-31096 Document: 00511736784 Page: 2 Date Filed: 01/25/2012
No. 10-31096
new evidence challenging diversity jurisdiction. The court ruled that it properly
asserted supplemental jurisdiction despite the dismissal of the Miller Act claim
and dismissed the defendants’ jurisdictional challenge as irrelevant. For the
reasons discussed below, we VACATE and REMAND to the district court.
I. FACTS AND PROCEDURAL HISTORY
The defendant Graybar Electric Company, Inc. (Graybar)1 contracted with
Stevens Land & Construction, L.L.C. (Stevens)2 to do re-roofing work for on-post
military personnel housing located at the U.S. Army base at Fort Polk,
Louisiana. Graybar was the principal contractor and Stevens was the sub-
contractor; Stevens subsequently retained the plaintiff, Richard A. Arena d/b/a
Water-Tite Roofing (Arena)3 to perform the re-roofing project. Stevens lacked
experience in roofing and hired Arena to be the primary roofer. Arena did not
have a written contract with either Graybar or Stevens but there was a clear
understanding that Arena would perform roofing services for the project. Arena
completed satisfactory work at the instruction of Graybar and Stevens. In fact,
the work performed by Arena exceeded their expectations of him. Arena was not
paid in full and subsequently brought this action.
Arena originally brought suit under the Miller Act, 40 U.S.C. § 3133 et
seq., which provides federal question jurisdiction to the district court pursuant
to 28 U.S.C. § 1331. In Arena’s original complaint, he asserted proper
jurisdiction based on federal question and supplemental jurisdiction. Arena
conceded at the beginning of the bench trial that the defendants failed to secure
1
Graybar is a corporation domiciled in New York. Its principal place of business is in
Missouri and its principal business establishment is in Louisiana.
2
Stevens is a limited liability company with its domicile and principal place of business
in Louisiana.
3
In his original complaint, Arena did not state his state of residency but asserts that
his principal place of business is in Benbrook, Texas.
2
Case: 10-31096 Document: 00511736784 Page: 3 Date Filed: 01/25/2012
No. 10-31096
a bond as required under the Miller Act. The failure to secure a bond resulted
in the district court’s dismissal of Arena’s Miller Act claim. Therefore, Arena
proceeded to trial under applicable Louisiana state-law. In March 2010, the
district court entered judgment in favor of Arena on his state-law breach of
contract claims, holding Graybar and Stevens liable for unpaid compensation for
the work Arena provided. After the trial, the court allowed Arena to amend his
complaint “to allege diversity that existed at the time of the original complaint.”
After judgment was entered, Graybar and Stevens filed a motion for a new
trial pursuant to Fed. R. Civ. P. 59 and a motion to dismiss under Fed. R. Civ.
P. 12(b)(1) for lack of subject-matter jurisdiction. The defendants argued that
there was no jurisdiction at the time the court allowed Arena to amend his
complaint to assert diversity of citizenship. Although 28 U.S.C. § 1653 and Fed.
R. Civ. P. 15(a) allow amendments to cure defective jurisdictional allegations,
these rules do not permit the creation of jurisdiction when none existed at the
time the original complaint was filed. According to the defendants, Arena was
a Louisiana citizen at the time he filed suit, not a Texas citizen. The defendants
submitted a voter registration document which purports to show Arena’s status
as a Louisiana-registered voter or citizen until the registration was cancelled in
September 2005. The original complaint was filed on May 25, 2005. The district
court acknowledged the defendants’ argument and newly submitted exhibit but
found that defendants did not give reasons why the new evidence was not
submitted before entry of judgment. Accordingly, the defendant’s challenge to
diversity jurisdiction was deemed irrelevant. The court asserted pendent
jurisdiction over Arena’s state-law claims. The court declined to consider the
defendants’ newly submitted evidence and ruled against their jurisdictional
challenge. That ruling is now before us on appeal.
3
Case: 10-31096 Document: 00511736784 Page: 4 Date Filed: 01/25/2012
No. 10-31096
II. STANDARD OF REVIEW
The court reviews a district court’s assumption of subject-matter
jurisdiction de novo. PCI Transp., Inc. v. Forth Worth & W. R.R. Co., 418 F.3d
535, 540 (5th Cir. 2005); see also Williams v. Wynne, 533 F.3d 360, 364 (5th Cir.
2008) (holding that the court reviews dismissals for lack of subject matter
jurisdiction de novo). And, “jurisdictional findings of fact [are reviewed] for clear
error.” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). “The
burden of establishing federal jurisdiction rests on the party seeking the federal
forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
III. DISCUSSION
Before reaching the jurisdictional issues that are at the heart of this
appeal, we first address defendant Graybar’s untimely filing of its notice of
appeal. Burnley v. City of San Antonio, 470 F.3d 189, 192 (5th Cir.
2006)(holding that, “taking of an appeal within the prescribed time is mandatory
and jurisdictional”) (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196,
203 (1988)). “A timely filed notice of appeal is an absolute prerequisite to this
court’s jurisdiction.” Moody Nat. Bank of Galveston v. GE Life and Annuity
Assur. Co., 383 F.3d 249, 250 (5th Cir. 2004) (citation omitted). Graybar was
required to file its notice of appeal with the district clerk within thirty-days after
the judgment on the defendants’ motion for a new trial in accordance with Fed.
R. App. P. 4(a)(1)(A). The court entered judgment on October 5, 2010 denying
the defendants’ Fed. R. Civ. P. 59 and 12(b)(1) requests for post-judgment relief.
Graybar and Stevens were required to file their notices of appeal by November
4, 2010.
Defendant Stevens timely filed its notice of appeal on November 4, 2010.
Graybar failed to file by this date. The Federal Rules of Appellate Procedure,
however, permitted a later filing. Pursuant to Fed. R. App. P. 4(a)(3), Graybar
4
Case: 10-31096 Document: 00511736784 Page: 5 Date Filed: 01/25/2012
No. 10-31096
was permitted to file its notice of appeal by November 18, 2010.4 The record does
not show that Graybar properly filed a notice of appeal by the November 18,
2010 date. Accordingly, we dismiss Graybar from this appeal.5
Proper Federal Jurisdiction
Arena’s original lawsuit alleged a Miller Act claim and Louisiana state-law
claims. The Miller Act claim failed, however, and was dismissed by the district
court at the beginning of trial. Defendants argue that the Miller Act claim’s
dismissal eliminated subject-matter jurisdiction over Arena’s lawsuit and the
court’s assertion of supplemental jurisdiction over Arena’s remaining state-law
claims was in error.
1. The Miller Act and Federal Question Jurisdiction
Arena asserted a claim under the Miller Act as a basis for his federal
question subject-matter jurisdiction. “Federal question jurisdiction arises when
a plaintiff[ ] set[s] forth allegations ‘founded on a claim or right arising under the
Constitution, treaties or laws of the United States.’” Hart v. Bayer Corp., 199
F.3d 239, 243 (5th Cir. 2000) (citations omitted). “The purpose of the Miller Act
is ‘to protect persons supplying labor and material for the construction of federal
public buildings in lieu of the protection they might receive under state statutes
with respect to the construction of nonfederal buildings.’” U.S. for Use and
Benefit of Water Works Supply Corp., v. George Hyman Constr. Co., 131 F.3d 28,
31 (1st Cir. 1997) (citing U.S. ex rel. Sherman v. Carter, 353 U.S. 210, 216
4
Fed. R. App. P. 4(a)(3): Multiple Appeals. If one party timely files a notice of appeal,
any other party may file a notice of appeal within 14 days after the date when the first notice
was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends
later.
5
Graybar is dismissed from this appeal. However, Graybar and Stevens submitted a
joint brief on appeal and shared the same arguments and evidence during the district court
proceedings. Therefore, the term “defendants” will be used in reference to both parties.
5
Case: 10-31096 Document: 00511736784 Page: 6 Date Filed: 01/25/2012
No. 10-31096
(1957)). The Act gives suppliers and subcontractors the right to sue a prime
contractor in U.S. district court for the amount owed to them. See 40 U.S.C.
§ 3133(b)(1). The Act creates a right to sue when the plaintiff has “furnished
labor or material in carrying out work provided in a contract for which a
payment bond is furnished under § 3131 of this title...” Id. This statutory
scheme was created to protect parties such as subcontractors or suppliers who
work on federal projects as state-law liens cannot be applied against federally-
owned property and traditional state-law remedies are unavailable. See U.S. for
Use of Gen. Elec. Supply Co. v. U.S. Fid. & Guar. Co., 11 F.3d 577, 580 (6th Cir.
1993).
The Miller Act itself does not explicitly mention that a bond is necessary
to maintain jurisdiction under the statute. Federal case law, however, has
established that a claim under the Miller Act cannot be maintained without it.
“Absent the existence of a bond, there can be no claim under the [Miller]
statute.” Faeber Elec. Co., Inc. v. Atlanta Tri-Com, Inc., 795 F.Supp. 240, 244
(N.D. Ill. 1992) (citing Arvanis v. Noslo Eng’g Consultants, Inc., 739 F.2d 1287,
1290 (7th Cir. 1984), cert. denied, 469 U.S. 1191 (1978)); see also United States
v. Olympic Marine Servs., Inc., 827 F.Supp. 1232, 1234 n.1 (E.D. Va. 1993)
(noting that federal courts maintain jurisdiction over Miller Act cases only if
bonds have been provided). A subcontractor’s right to sue for recovery under the
Miller Act is traditionally limited to a general contractor’s payment bond. See
U.S. for Use and Benefit of Superior Sys. Inc., v. Levy Wrecking Co. Inc., No. 93-
2440, 1994 WL 142113, at *1 (8th Cir. Apr. 22, 1994) (citations omitted)
(unpublished). Indeed, satisfaction of the bond requirement to establish proper
jurisdiction goes back for many years. The Honorable Judge Cardozo discussed
the bond requirement in reference to the predecessor of the Miller Act. Judge
Cardozo succinctly held:
6
Case: 10-31096 Document: 00511736784 Page: 7 Date Filed: 01/25/2012
No. 10-31096
Congress has said that contractors shall be made liable to
materialmen and laborers in an amount to be made determinate by
the giving of the bond. The statutory liability, which in turn is
inseparably linked to the statutory remedy, assumes the existence
of a bond as an indispensable condition. Till then, there is neither
federal jurisdiction nor any right of action that can rest upon the
statute.
Strong v. American Fence Constr. Co., 245 N.Y. 48, 52-53, 156 N.E. 92, 93 (1927)
(citations omitted).
Here, no bond was secured for the government project at issue. This fact
is conceded by both Arena and Stevens. Arena, however, contends that the Fifth
Circuit has recognized the existence of supplemental jurisdiction over state-law
claims where a plaintiff’s primary claim under the Miller Act has been
dismissed. It cites to our decision in U.S. for the Use of American Bank v. C.I.T
Constr. Inc. of Tex., 944 F.2d 253 (5th Cir. 1991) to support its position. In
American Bank, the district court determined that it lacked jurisdiction over
American’s claim under the Miller Act because American failed to file suit within
the one-year period specified within the statute. We reversed, holding that the
court should have exercised jurisdiction because “Congress had supplied [the
district court] with ‘express statutory jurisdiction’ over any ‘action on a bond
executed under [a] law of the United States,’ which included a suit on a Miller
Act payment bond.” American Bank, 944 F.2d at 257 (citing U.S. ex rel. Tex.
Bitulithic Co. v. Fid. and Deposit Co., 813 F.2d 697, 699 (5th Cir. 1987)). In our
holding, we clarified that the one-year period of the Miller Act is limitational and
not jurisdictional, thus the district court had subject-matter jurisdiction.6 Id.
Because the one-year limitation rule is not jurisdictional, we remanded to the
district court so that it could determine whether the exercise of pendent
6
We relied on our interpretation of Fid. and Deposit Co., 813 F.2d at 699 to remand and
instruct the district court to exercise subject-matter jurisdiction over American’s Miller Act
claim although we agreed that the one-year limitation period time-barred the claim.
7
Case: 10-31096 Document: 00511736784 Page: 8 Date Filed: 01/25/2012
No. 10-31096
jurisdiction was proper over American’s state-law claims.7 Id. at 261. Arena’s
reliance on American Bank is misplaced as the key distinction between that
holding and the instant case is that Arena’s Miller Act claim is jurisdictionally
deficient and fatally defective because the bond requirement was not satisfied.
Proper federal question jurisdiction for his Miller Act claim was not established.
Without a secured bond, there can be no Miller Act claim. And without his
Miller Act claim, Arena lost the anchor of his federal question jurisdiction under
28 U.S.C. § 1331. Despite the dismissal of Arena’s federal claim, the court
determined that it properly retained jurisdiction over his state-law claims.
(a) Supplemental jurisdiction
The principle of pendent jurisdiction is codified in 28 U.S.C. § 1367 and
gives the court discretion to exercise jurisdiction over state-law claims when : (1)
federal question jurisdiction is proper, and (2) the state-law claims derive from
a common nucleus of operative facts.8 The magistrate judge reasoned that it was
within its power and judicially efficient to exercise pendent jurisdiction as
Arena’s state-law claims are based on the same set of facts. Accordingly, the
defendants’ jurisdictional challenge was rejected.
[I]t is important to emphasize...that supplemental jurisdiction can
be exercised in a case that has invoked an independent basis of
federal subject matter jurisdiction...[I]f a federal claim is too
insubstantial to invoke federal question jurisdiction for the
7
We made clear in Fidelity and Deposit Co. that the use of the word “jurisdictional” in
our prior cases referred “to the conditional nature of the right to sue under the Miller Act, not
the jurisdiction of the court itself.” 813 F.2d at 699; see also American Bank, 944 F.2d at 256.
Both Fidelity and Deposit Co. and American Bank deal with a time limitation issue of the
Miller Act, thus they do not support Arena’s position.
8
“[The] Federal courts have long adhered to principles of pendent and ancillary
jurisdiction by which the federal courts’ original jurisdiction over federal questions carries
with it jurisdiction over state law claims that ‘derive from a common nucleus of operative fact,’
such that the relationship between [the federal] claim and the state claim permits the
conclusion that the entire action before the court comprises but one constitutional ‘case.’” City
of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 164-65 (1997) (cited cases omitted).
8
Case: 10-31096 Document: 00511736784 Page: 9 Date Filed: 01/25/2012
No. 10-31096
underlying case, and there is no diversity, there can be no
supplemental jurisdiction of other claims. [The] result has nothing
to do with supplemental jurisdiction. It flows from a requirement of
federal question jurisdiction.
13D Charles Alan Wright et al., Fed. Practice & Procedure § 3567 at 327 (3d ed.
2008). “A necessary condition for the exercise of supplemental jurisdiction is the
substantiality of the federal claims.” Decatur Liquors, Inc. v. Dist. of Columbia,
478 F.3d 360, 363 (D.C. Cir. 2007) (citation omitted). “If the federal claims are
obviously frivolous or so attenuated and unsubstantial as to be absolutely devoid
of merit, [ ] a federal court lacks subject-matter jurisdiction over those claims
and, consequently, any local law claims.” Id. (internal quotations and citation
omitted).
Both parties concede that no bond was secured and do not dispute the
district court’s dismissal of the Miller Act claim. Arena’s claim was not
substantial as it contained a fatal defect when no bond was secured. The
magistrate judge acknowledged the defect when she concluded that a bond was
not secured as required by the Miller Act. Thus, Arena proceeded solely on his
state-law claims. The court’s reasoning of judicial efficiency to resolve Arena’s
state-law claims comes into play only when jurisdiction is proper. The court
relied on Int’l Coll. of Surgeons, 522 U.S. at 164-65, which held that “federal
courts’ original jurisdiction over federal questions carries with it jurisdiction
over state law claims that ‘derive from a common nucleus of operative fact...’”
But this principle as stated by the Court assumes and requires proper original
jurisdiction. In the instant case, a secured bond under the Miller Act was
required before the district court could establish original jurisdiction and assert
pendent jurisdiction. Without original jurisdiction on the federal claim, the
court cannot assert jurisdiction over state-law claims, even if those claims
derive from a common nucleus of operative facts.
9
Case: 10-31096 Document: 00511736784 Page: 10 Date Filed: 01/25/2012
No. 10-31096
The court lacked federal question jurisdiction and federal law has long
established that federal courts do not have jurisdiction over federal claims that
are too insubstantial or attenuated, thus are devoid of merit. Decatur Liquors,
Inc., 478 F.3d at 363 (citation omitted). “In order for a federal court to invoke
supplemental jurisdiction under Gibbs, it must first have original jurisdiction
over at least one claim in the action.” Exxon Mobil Corp., v. Allapattah Servs.,
Inc., 545 U.S. 546, 554 (2005).9 Here, the Miller Act claim as asserted was
simply too attenuated to serve as a jurisdictional anchor for his state-law claims.
(b) Diversity Jurisdiction
We now consider whether the parties satisfy diversity jurisdiction
pursuant to 28 U.S.C. § 1332. Because we have determined that there is no
federal question jurisdiction and thus no valid assertion of supplemental
jurisdiction, the only avenue which remains for proper subject-matter
jurisdiction is a showing of complete diversity.10
After the entry of judgment, defendants argued that the court lacked
authority to allow Arena to amend his complaint to fix the jurisdictional
problem. In other words, it was wrong for the court to allow Arena to go back
and assert diversity of citizenship in an amended complaint when no diversity
existed at the time the original complaint was filed. With their post-trial
motions, defendants submitted a Louisiana voter registration document bearing
Arena’s name and address. On appeal, Stevens argues that the court should
have reviewed the document and made a factual determination as it bears on
jurisdiction. The court’s jurisdiction over Arena’s state-law claims is proper if
9
The Court citing to United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).
10
The amount in controversy requirement for diversity jurisdiction pursuant to 28
U.S.C. § 1332(a) is not at issue. Arena has alleged in his Complaint that the defendants are
liable to him for the sum of $163, 295 for unpaid work.
10
Case: 10-31096 Document: 00511736784 Page: 11 Date Filed: 01/25/2012
No. 10-31096
diversity jurisdiction was proper at the time Arena filed his lawsuit. But the
court never reached the validity of the defendants’ diversity challenge.
i. Consideration of new evidence
The court refused to consider new evidence because defendants failed to
explain why the information was not presented before judgment was entered.
The magistrate judge concluded that the Louisiana voter registration form was
available to defendants before judgment. And in balancing the need to conclude
litigation against the need to render just decisions on the basis of all facts,
admitting new evidence was unnecessary. In other words, the court found that
the defendants could have but failed to timely produce their evidence and the
totality of the circumstances did not require the court to review it. That finding
was incorrect.
Proper jurisdiction for a federal court is fundamental and necessary before
touching the substantive claims of a lawsuit. Even if defendants failed to
challenge jurisdiction at a prior stage of the litigation, they are not prohibited
from raising it later. See Menchaca v. Chrysler Credit. Corp., 613 F.2d 507, 511
(5th Cir. 1980). “[A] factual attack under Rule 12(b)(1) may occur at any stage
of the proceedings, and plaintiff bears the burden of proof that jurisdiction does
in fact exist.” Id. (citations omitted).
Because a party may not waive the defense of subject matter
jurisdiction, it is clear that the issue may be raised for the first time
on appeal. [T]he independent establishment of subject-matter
jurisdiction is so important that [even] a party ostensibly invoking
federal jurisdiction may later challenge it as a means of avoiding
adverse results on the merits.
13 Charles Alan Wright et al., Fed. Practice & Procedure § 3522 at 122-23 (3d
ed. 2008). “A litigant generally may raise a court’s lack of subject matter
jurisdiction at anytime in the same civil action, even initially at the highest
appellate instance.” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567,
11
Case: 10-31096 Document: 00511736784 Page: 12 Date Filed: 01/25/2012
No. 10-31096
576 (2004) (citations omitted).11 The law is clear on this point and the district
court had a duty to consider newly submitted evidence despite the defendants’s
failure to produce it before the entry of judgment.
When a defendant makes a “factual” attack on a court’s subject-matter
jurisdiction, the court is “free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Morris v. U.S. Dept. of Justice, 540 F.
Supp. 898, 900 (S.D. Tex. 1982) aff’d, 696 F.2d 994 (5th Cir. 1983), cert. denied,
460 U.S. 1093 (1983). “[F]ederal courts must address jurisdictional questions
whenever they are raised and must consider jurisdiction sua sponte if not raised
by the parties.” Howery, 243 F.3d at 919 (citing Kidd v. Southwest Airlines, Co.,
891 F.2d 540, 546 (5th Cir. 1990)); see also Griffin v. Lee, 621 F.3d 380, 383-84
(5th Cir. 2010) (citation omitted). “Incomplete diversity destroys original
jurisdiction with respect to all claims, so there is nothing to which supplemental
jurisdiction can adhere.” Exxon Mobil Corp.,545 U.S. at 554; see also Menchaca,
613 F.2d at 511 (“A fortiori a motion to dismiss under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction must include an inquiry by the court into its
own jurisdiction.”).
Arena filed his complaint as an unincorporated association with its
principal place of business in Texas. Texas citizenship would satisfy
jurisdictional requirements. But the citizenship of his unincorporated
association may be Louisiana, which would destroy diversity. See Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)(holding that the
citizenship of a LLC, like limited partnerships or other unincorporated
associations or entities, is determined by the citizenship of all of its members)
11
The Court held that a post-filing change in a party’s citizenship cannot cure the lack
of diversity when the case was filed and must be dismissed for failing to invoke federal-subject
matter jurisdiction, despite a three-year delay in raising the issue. Grupo Dataflux, 541 U.S.
at 574-76 (citations omitted).
12
Case: 10-31096 Document: 00511736784 Page: 13 Date Filed: 01/25/2012
No. 10-31096
(citations omitted). Arena, as the injured plaintiff seeking to recover in a federal
forum, has the burden to show that there was complete diversity when he
originally filed his complaint. See Howery, 243 F.3d at 919.
Precedent puts a great responsibility on all federal courts to consider
reasonable challenges to jurisdiction before reaching the merits of litigants’
substantive claims. It was, and remains, important for the court to examine the
merits of Stevens’s jurisdictional challenge because the failure of Arena’s Miller
Act claim and lack of complete diversity would necessarily mean that the trial
court never had original jurisdiction from the inception of this lawsuit. If this
proves to be the case, a Louisiana state court would be the appropriate forum for
the parties to resolve their dispute.
ii. Amending the original complaint
The magistrate judge’s Memorandum Ruling shows that the court
presumed proper diversity existed when Arena’s complaint was originally filed.
And Arena was allowed to amend his complaint to reflect this assumption
pursuant to 28 U.S.C. § 1332. Federal statutes allow parties to amend defective
allegations of jurisdiction in their filing papers. 28 U.S.C. § 1653. These
statutes, however, cannot be used to “create jurisdiction retroactively” where it
did not previously exist. Boelens v. Redman Homes, Inc., 759 F.2d 504, 512 (5th
Cir. 1985) (holding that § 1653 applies to technically inadequate allegations of
jurisdiction but does not remedy defective jurisdiction itself) (citation omitted);
see also Russell v. Basila Mfg. Co., 246 F.2d 432, 433 (5th Cir. 1957) (when a
defect is basic and actual rather than formal, amendment pursuant to 28 U.S.C.
§ 1653 is unavailing). “[A]llowing a citizenship change to cure the jurisdictional
defect that existed at the time of filing would contravene the principle
articulated by Chief Justice Marshall in Conolly. We decline to do today what
the Court has refused to do for the past 175 years.” Grupo Dataflux, 541 U.S. at
13
Case: 10-31096 Document: 00511736784 Page: 14 Date Filed: 01/25/2012
No. 10-31096
575.12 The defendants’ challenge to diversity jurisdiction is reasonable and
should have been examined. And if Arena was in fact a resident of Louisiana
when he filed his original complaint, the court’s action to allow the amendment
was improper.
To summarize, the district court may not have had proper subject-matter
jurisdiction from the instant Arena decided to file this lawsuit. The district
court reasoned that it had wide discretion to exercise supplemental jurisdiction,
but it incorrectly assumed that it had proper subject-matter jurisdiction under
the Miller Act. We conclude that the Miller Act claim was too attenuated to
establish proper federal question jurisdiction and, hence, cannot support the
exercise of supplemental jurisdiction. Therefore, the court’s determination of
Arena’s substantive claims rests on whether the parties are completely diverse.
Post-trial, the defendants produced a voter registration form bearing Arena’s
name, purporting to reflect Arena’s voter registration status in Louisiana. This
evidence directly challenges diversity. As of the day of oral arguments, however,
this registration form remained uncertified and otherwise unauthenticated,
therefore we cannot determine whether diversity jurisdiction is proper or has
been destroyed. This important task of reviewing the evidence, validating its
authenticity, and determining its affect on jurisdiction is for the district court.
IV. CONCLUSION
For the foregoing reasons, we VACATE the district court as jurisdictional
requirements have not been satisfied. We REMAND to the court for further
proceedings consistent with this opinion.
12
Conolly v. Taylor, 27 U.S. 556, 565 (1829) (“Where there is no change of a party, a
jurisdiction depending on the condition of the party is governed by that condition, as it was at
the commencement of the suit.”) (Marshall, C.J.).
14