742 F.2d 888

Norman T. STRAIN, d/b/a Trans Texas Tire, Plaintiff-Appellee Cross-Appellant, v. HARRELSON RUBBER COMPANY, Defendant-Appellant Cross-Appellee.

No. 84-1219

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 1, 1984.

Brown, Herman, Scott, Dean & Miles, Grant Liser, Larry E. Cotten, Fort Worth, Tex., for plaintiff-appellee cross-appellant.

*889Ferguson & Dulick, James Erwin Ferguson, Harry Louie Dulick, Cleburne, Tex., for defendant-appellant cross-appellee.

Before WILLIAMS, JOLLY and HILL, Circuit Judges.

PER CURIAM:

The original plaintiff, Norman T. Strain, d/b/a Trans Texas Tire, brought an asserted diversity jurisdiction suit against Harrelson Rubber Co. He alleged several state causes of action and sought money damages. After a bench trial, the district court sua sponte added as a party plaintiff Trans Texas Tire, Inc., because Strain had formed and incorporated Trans Texas Tire, Inc., either just before or during the pendency of the suit. The corporation took over the assets and operations of his sole proprietorship. Strain’s complaint had not mentioned Trans Texas Tire, Inc. The court rendered judgment for both Strain and the corporation on some of their claims.

We raise an issue sua sponte: Does the complaint establish subject matter jurisdiction over the plaintiffs’ claims? See Illinois Central Gulf Railroad v. Pargas, Inc., 706 F.2d 633, 635 (5th Cir.1983) (raising question “[o]n our own motion”); American Motorists Insurance Co. v. American Employers’ Insurance Co., 600 F.2d 15, 16 (5th Cir.1979). Fed.R.Civ.P. 8(a)(1) provides that pleadings must allege the basis of jurisdiction. In his complaint, Strain claimed diversity of citizenship, see 28 U.S.C. § 1332 (1976), as the jurisdictional basis. The complaint, however, alleged residency rather than citizenship. It is established that an allegation of residency does not satisfy the requirement of an alie: gation of citizenship. Kerney v. Fort Griffin Fandangle Ass’n, 624 F.2d 717, 719 (5th Cir.1980); Delome v. Union Barge Line, 444 F.2d 225, 233 (5th Cir.), cert. denied, 404 U.S. 995, 92 S.Ct. 534, 30 L.Ed.2d 547 (1971). Thus, Strain did not carry his burden of pleading diverse citizenship. See Pargas, Inc., 706 F.2d at 636; Kerney, 624 F.2d at 719; Toms v. Country Quality Meats, Inc., 610 F.2d 313, 316 (5th Cir.1980) (holding that plaintiff must plead citizenship “distinctly and affirmatively”); American Motorists, 600 F.2d at 16. The district court, therefore, erred in exercising jurisdiction over Strain’s claims.

The same conclusion applies to the claims of Trans Texas. The pleadings did not mention the corporation. They thus provided no basis for the district court’s exercise of jurisdiction.1

Dismissal of the case is not required. Under 28 U.S.C. § 1653 (1976), “[defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” Such an amendment may occur “even after judgment has been entered or an appeal taken.” Eklund v. Mora, 410 F.2d 731, 732 (5th Cir. 1969), quoted in Pargas, Inc., 706 F.2d at 638. We accordingly remand2 to the district *890court for determination of whether jurisdictional grounds exist as to both Strain and Trans Texas.

We REMAND this case for proceedings consistent with this opinion, but this panel retains jurisdiction pending any further appeal.

REMANDED.

Strain v. Harrelson Rubber Co.
742 F.2d 888

Case Details

Name
Strain v. Harrelson Rubber Co.
Decision Date
Oct 1, 1984
Citations

742 F.2d 888

Jurisdiction
United States

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