     Case: 10-51148     Document: 00511704693         Page: 1     Date Filed: 12/22/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        December 22, 2011

                                       No. 10-51148                        Lyle W. Cayce
                                                                                Clerk

RICHARD SIMON; JANELLE SIMON; ERIC CURTIS; JOSE VEGA,

                                                  Plaintiffs - Appellants
v.

HEATH TAYLOR; JERRY WINDHAM; PAT WINDHAM,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:08-CV-827


Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
        The original plaintiffs, Richard Simon, Janelle Simon, and Eric Curtis,
brought this diversity suit against Heath Taylor, Jerry Windham, and Pat
Windham. The plaintiffs alleged several tort causes of action under New Mexico
law. The complaint alleges that the defendants cheated at the All American
Futurity quarter horse race by entering a horse that had ingested caffeine.
Before the trial court ruled on the motion to dismiss, the plaintiffs voluntarily
amended their complaint to include Jose Vega, the jockey of their horse, as one

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                        No. 10-51148

of the plaintiffs. The district court granted the motion to dismiss, finding that
there was no cognizable tort claim against a co-competitor in a sport, that it was
against public policy for a federal court to meddle in the highly-regulated sport
of horse racing, and that the plaintiffs-appellants lacked standing to sue on their
claims.
       On appeal, we sua sponte raised whether the complaint adequately alleges
federal jurisdiction. The following allegations in the amended complaint
prompted us to raise the issue: that plaintiffs Richard Simon, Janelle Simon,
and Eric Curtis are “residents” of Louisiana; that plaintiff Jose Vega is a
“resident” of Texas; and that defendants Heath Taylor, Jerry Windham, and Pat
Windham are “residents” of Texas. Furthermore, the only jurisdictional basis
for the plaintiffs’ claims is diversity of citizenship under 28 U.S.C. § 1332.
       It is well established that for a federal court to exercise jurisdiction based
on diversity of citizenship, diversity must be complete. Getty Oil Corp., Div. of
Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258-59 (5th Cir.1988).
Furthermore,“[t]he burden is on a plaintiff to allege and invoke jurisdiction,”
McGovern v. American Airlines, Inc., 511 F.2d 653, 654 (5th Cir. 1975); and
“[f]ailure adequately to allege the basis for diversity jurisdiction mandates
dismissal.” Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991).
       Thus, the plaintiffs have failed to establish complete diversity because,
according to their amended complaint, both plaintiff Jose Vega and the
defendants are residents of Texas.             The district court, therefore, erred in
exercising jurisdiction over this lawsuit.1




       1
          Our own review of the record does not reveal any evidence that would cure the
jurisdictional defects in the plaintiffs’ complaint. See Delome v. Union Barge Line, 444 F.2d
225, 233 (5th Cir. 1971) (holding that a court of appeals has discretion to delve into the record
in search of evidence establishing diversity jurisdiction).

                                               2
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                                       No. 10-51148

       After discovering the jurisdictional defects in this case, we directed the
parties to submit letter briefs addressing the complaint’s jurisdictional
shortcomings.      In response, the appellants filed a motion to amend their
complaint in order to allege that Jose Vega is a citizen of Louisiana. See 28
U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.”) (emphasis added). Even if we allowed
the proposed amendment to the complaint, all of the jurisdictional shortcomings
in this case would not be cured, because the plaintiffs-appellants continue to
allege only that the parties, except for Jose Vega, are “residents” of their
respective states. Diversity jurisdiction requires that the parties be “citizens of
different States,” 28 U.S.C. § 1332(a)(1) (emphasis added); and an allegation that
the parties are “residents” of particular states is insufficient to provide the court
with diversity jurisdiction.2 See Nadler v. American Motor Sales Corp., 764 F.2d
409, 413 (1985). Despite having opportunities to cure the jurisdictional defects
in the complaint, the appellants have made no effort to amend their
jurisdictional allegations as to any party except Jose Vega. Moreover, the
appellants indicated in their motion to amend the complaint that they were
aware that pleading residency was insufficient to satisfy § 1332’s citizenship
requirement.
       Accordingly, we VACATE the district court’s judgment on the merits and
REMAND to the district court for entry of dismissal in accordance with this
opinion.
                                                           VACATED and REMANDED.




       2
         It is important to distinguish between citizenship and residency, because a “citizen
of one state may reside for a term of years in another state, of which he is not a citizen; for,
citizenship is clearly not co-extensive with inhabitancy.” Bingham v. Cabbot, 3 U.S. (Dall.)
382, 383, 1 L.Ed. 646 (1798).

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