     Case: 19-50261      Document: 00515047328         Page: 1    Date Filed: 07/24/2019




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

                                                                                  FILED
                                    No. 19-50261                              July 24, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
FREDERICK COLLINS FERMIN,

              Plaintiff - Appellant

v.

PRIEST OF SAINT MARY - MARFA, TEXAS; DIOCESE OF EL PASO,
TEXAS,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:18-CV-327


Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       Frederick Collins Fermin sued the Diocese of El Paso and an unnamed
priest for using a crucifix during his baptism in 1925. He alleges that the priest
did so “in violation of God’s law,” citing, among other Bible verses, the Second
Commandment’s prohibition of idolatry. See EXODUS 20:4. The district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-50261     Document: 00515047328     Page: 2     Date Filed: 07/24/2019



                                  No. 19-50261
granted the Diocese’s motion to dismiss for lack of subject matter jurisdiction,
and we affirm.
      Fermin says the district court had both diversity and federal question
jurisdiction. See 28 U.S.C. §§ 1331, 1332. But he did not meet his burden of
pleading facts in support of either. See Howery v. Allstate Ins. Co., 243 F.3d
912, 919 (5th Cir. 2001). Diversity jurisdiction requires complete diversity of
citizenship—that is, neither defendant can be a citizen of the same state as
Fermin. Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). Fermin
fails to allege state citizenships for himself or the defendants. That “failure
adequately to allege the basis for diversity jurisdiction mandates dismissal.”
Id. at 805. Plus, as the district court observed, by all appearances there is not
complete diversity: Fermin’s signature block on his complaint lists a San
Antonio address, and the Diocese is presumably an El Paso resident.
      Moving to federal question jurisdiction, we note that Fermin raises a
First Amendment claim. That claim arises under federal law, so it survives a
challenge to subject matter jurisdiction unless it is so “completely devoid of
merit as not to involve a federal controversy.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. Cty. of
Oneida, 414 U.S. 661, 666 (1974)). But a First Amendment claim against a
church and a priest cannot meet that low bar.              The First Amendment
constrains state action, not private conduct. Manhattan Cmty. Access Corp. v.
Halleck, 139 S. Ct. 1921, 1928 (2019). Churches and priests are not state
actors. Indeed, if the First Amendment had any role to play in this case, it
would be to warn us against delving into a dispute about religious doctrine.
See Serbian E. Orthodox Diocese for U.S. & Canada v. Milivojevich, 426 U.S.
696, 709 (1976).
      We thus need not consider Fermin’s argument that the district court
erred in denying his motion for default judgment. The Diocese admits that it
                                        2
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                               No. 19-50261
filed its answer two days late. But without subject matter jurisdiction, the
district court could not have granted a default judgment even if one had been
warranted. Mitchell v. Texas, 56 F.3d 1385, 1995 WL 337749, at *1 (5th Cir.
1995) (per curiam).
                                *    *        *
     The district court’s judgment is AFFIRMED.




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