                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                               January 9, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 05-10846
                            Summary Calendar
                         _____________________
DARYOUSH DANIAL,

                                                 Plaintiff - Appellant,

                                versus

HOMA D. DANIELS,

                                            Defendant - Appellee.
_________________________________________________________________

        Appeal from the United States District Court for
         the Northern District of Texas, Dallas Division
                          No. 3:05-CV-90
_________________________________________________________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:1

     Daryoush Danial appeals the district court’s order dismissing

his complaint.    Reviewing the district court’s dismissal for lack

of jurisdiction de novo, Calhoun County, Tex. v. United States, 132

F.3d 1100, 1103 (5th Cir. 1998), we affirm for the reasons stated

by the district court, including the following:

     1. The party seeking federal jurisdiction bears the burden of

establishing that jurisdiction exists.     See St. Paul Reinsurance

Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).        Here,

the claim of federal jurisdiction rests on diversity jurisdiction


     1
        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this opinion should not be published and is not precedent except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.
under 28 U.S.C. § 1332.         Even assuming the parties are diverse,

federal    courts    only    have    jurisdiction        where     “the   matter    in

controversy exceeds the sum or value of $75,000, exclusive of

interest   and     costs.”     Id.      To     determine      if    the    amount    in

controversy requirement is met we look first to the plaintiff’s

complaint.       See St. Paul Mercury Indem. Co. v. Red Cab Co., 58

S.Ct. 586, 590 (1938) (“[I]f from the face of the pleadings, it is

apparent, to a legal certainty, . . .           that the plaintiff never was

entitled    to    recover    that    amount,    .    .    .   the   suit    will    be

dismissed.”).      Danial’s complaint alleges that he sent his sister,

Homa Daniels, $76,125 in 1980 to hold on Danial’s behalf.                           The

complaint goes on to acknowledge that by the time of suit Daniels

had repaid $69,625.     Thus from the face of the complaint the total

and undisputed amount owing is $6,500.              This falls far short of the

required amount in controversy.2




     2
       The unpaid amount claimed on appeal by Danial is far
different – $77,600. This amount is reached by arguing that the
conveyance by Danial to Daniels created a constructive or resulting
trust under “Texas trust law” and then performing a series of
creative calculations of interest.      However, the Texas law of
trusts, contained in the Texas Property Code, specifically excludes
both constructive and resulting trusts.       See TEX. PROP. CODE §
111.003 (2005) (“a ‘trust’ is an express trust only and does not
include: (1) a resulting trust; [or] (2) a constructive trust”).
Thus the district court correctly recognized that the potential
liability of Daniels to Danial is for the return of the outstanding
balance of $6,500. Additionally, because Danial’s reliance on the
creation of a trust under Texas law is misplaced, his arguments
relating to the breach of certain trustee duties are also without
merit.

                                        2
     2.   Danial’s contention that the inclusion of costs helps him

to reach the minimum jurisdictional amount is misplaced.       By its

very language § 1332(a) clearly excludes costs from the calculation

of the amount in controversy.   Thus, the district court was not in

error to exclude costs from its calculation.

     3. Danial’s calculation of and reliance on interest, although

creative, is also without merit.       Interest is only considered for

jurisdictional purposes where it is a basis for the suit itself.

Brown v. Webster, 15 S.Ct. 377 (1895); see also Greene County v.

Kortrecht, 81 F. 241 (5th Cir. 1897) (holding that interest on a

note prior to maturity would be properly considered as a part of

the amount in controversy although interest accruing after maturity

would not).   The basis of this suit does not involve interest and

as such the district court was proper to exclude it from the

determination of the amount in controversy.3

     4.   Danial contends that “punitive damages of $175,000 should

be reasonable under the facts of this case.”      Although the amount

is mentioned in his appellate brief, Danial failed to even request

punitive damages in his initial complaint.        It was only in his

response to Daniels’s motion to dismiss that punitive damages were

requested at all.     Because no amount of punitive damages was

requested below, the amount of punitive damages requested does not


     3
       Additionally we note that even were we to include interest
in our calculation, the amount in controversy -- $6,500 plus
interest -- would still fall far short of the minimum
jurisdictional requirement.

                                   3
rise to the level of legal certainty required for inclusion in the

jurisdictional calculation.     See St. Paul Mercury Indem. Co., 58

S.Ct. at 590.

     4.   While Danial claims that inflation helps to cure his

amount in controversy shortcomings, there is no evidence that this

argument was raised below.      Further, there is no evidence of an

acceptable measure of inflation that would cause the remaining

amount due to rise to the $75,000 required by § 1332.

     5.   Danial’s claim for attorney’s fees likewise falls short.

Danial’s son has not appeared in this action on behalf of his

father. Rather, Danial has been pro se in this action.     Attorney’s

fees are not available to a non-attorney pro se litigant.         See

McLean v. Int’l. Harvester Co., 902 F.2d 372, 373 (5th Cir. 1990).4

As Danial has not been represented by counsel nor demonstrated that

he is an attorney, attorney’s fees are not available to him.

     6.    Even   were   this   claim   not   jurisdictionally barred,

dismissal would be appropriate as the action is barred by the

statute of limitations.    The complaint acknowledges that Daniels

told Danial in a phone call in 1986 that the money had been lost.5

Even assuming, as Danial alleges, that equitable tolling was



     4
      Even if attorney’s fees were available to Danial, they would
not make up the $68,500 necessary to reach the minimum
jurisdictional amount.
     5
       Danial’s appellate brief asserts that this call took place
in August 1990.    Under either date the applicable statute of
limitations has run.

                                   4
applicable due to either the fraud of Daniels or Danial’s inability

to travel to the United States, the statute of limitations ran long

before the filing of this suit and thus this action is barred.6



     For these reasons the district court did not err in dismissing

Danial’s complaint for lack of jurisdiction, and the order of the

district court is thus,



                                                        AFFIRMED.




     6
       The complaint states that Danial discussed filing suit
against his sister as early as 1989-1993. Thus any fraud inducing
him to believe no claim existed was, by Danial’s own admission,
ineffective by that date. Further, the travel restrictions between
Iran and the United States were lifted in 1999. Further, Danial
states that it was possible for him to obtain a visa to enter the
United States in August 2001.     Assuming that equitable tolling
applied until those restrictions were lifted, the two-year statute
of limitations ran long before the filing of the complaint on
January 14, 2005. See TEX. CIV. PRAC. & REM. CODE § 16.003 (2005).

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