IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40025
Summary Calendar
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BUISON, INC.,
Plaintiff-Appellant,
VERSUS
YAGA, INC. f/k/a YAGA RGAZ, INC.,
JOE FLORES, BEACH THINGS, INC.,
DILLARDS DEPARTMENT STORES, INC.,
CHAMPS SPORTS, GADZOOKS, INC.,
MARSHALL FIELDS STORES, INC., and
SHANNON'S SURF SHOP,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(94 CV 478)
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August 24, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The plaintiff appeals a judgment of dismissal. There is some
confusion as to whether the dismissal was on the ground of failure
to prosecute or want of subject matter jurisdiction. The judgment,
*
Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
however, plainly says it is for the latter.
The case was filed on the basis of diversity. From the face
of the complaint it is obvious, however, that there is not complete
diversity, as the plaintiff and at least three of the defendants
are citizens of Texas for purposes of the diversity statute. In
its brief, the appellant does not even attempt to argue that
diversity jurisdiction, or any other form of federal jurisdiction,
exists in this case. Instead, the appellant only quarrels with the
notion that the case also was dismissed for failure to attend a
FED. R. CIV. P. 16 conference.
Because the district court lacked subject matter jurisdiction,
any other reason given for the dismissal is irrelevant. We also
note that the court declined to impose sanctions, so that is not an
issue here. To remove any implication that the dismissal operates
on the merits of the controversy, we modify the judgment so that it
still dismisses for want of jurisdiction, but we delete "WITH
PREJUDICE" therefrom.
As so modified, the judgment is AFFIRMED.
2