                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1846
                                    ___________

John Harper,                             *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Marshall Ford Sales, Inc.,               *
                                         * [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                              Submitted: February 17, 2010
                                 Filed: February 25, 2010
                                  ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

      Oregon resident John Harper filed a complaint based on diversity jurisdiction
against Marshall Ford Sales, Inc., a Missouri corporation. The district court dismissed
the complaint under Federal Rule of Civil Procedure 12(h)(3). Harper appeals. We
reverse and remand for further proceedings.

       District courts have original jurisdiction of all civil actions where the amount
in controversy exceeds the sum or value of $75,000, and where the action is between
citizens of different states. See 28 U.S.C. § 1332(a)(1). We review de novo a
dismissal for lack of subject matter jurisdiction. See Advance Am. Servicing of Ark.,
Inc. v. McGinnis, 526 F.3d 1170, 1173 (8th Cir. 2008).
       In his fee-paid, pro se complaint Harper alleged his state of residency, but not
his state of citizenship; and he requested $3,026.81 in actual damages and $150,000
in punitive damages, but he did not allege facts to support his claim for punitive
damages under Missouri law. See Larkin v. Brown, 41 F.3d 387, 388-89 (8th Cir.
1994) (Missouri requires showing of culpable mental state); Allison v. Sec. Benefit
Life Ins. Co., 980 F.2d 1213, 1215-16 (8th Cir. 1992) (elements of fraud must be pled
with particularity). The district court, on its own motion and before service of
process, dismissed the action for lack of subject matter jurisdiction.

       On appeal, Harper asserts that the district court should not have dismissed his
complaint without providing him notice or an opportunity to amend. We agree. We
express no opinion on whether Harper will be able to cure the jurisdictional defects,
but we cannot say at this point in the litigation that it appears to a legal certainty that
he cannot recover more than $75,000, or that complete diversity of citizenship is
lacking. See Gonzalez-Gonzalez v. United States, 257 F.3d 31, 36-37 (1st Cir. 2001)
(sua sponte dismissal without notice or opportunity to be heard “is disfavored in
federal practice,” and will rarely be upheld: “If it is crystal clear that the plaintiff
cannot prevail and that amending the complaint would be futile, then a sua sponte
dismissal may stand.”); Joyce v. Joyce, 975 F.2d 379, 386 (7th Cir. 1992) (unless
jurisdictional defect is clearly incurable, district court should allow plaintiff leave to
amend, allow parties to argue jurisdictional issue, or provide plaintiff with opportunity
to discover facts necessary to establish jurisdiction).

       Accordingly, we reverse the district court’s dismissal order and remand for
further proceedings.
                      ______________________________




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