     Case: 12-30795       Document: 00512182735         Page: 1     Date Filed: 03/21/2013




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

                                                                            FILED
                                                                          March 21, 2013
                                     No. 12-30795
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk


ROGERIO RIBEIRO DOS SANTOS; EDIMAR RIBEIRO DUARTE;
JUSSARA DOS SANTOS RODRIGUES,

                                                  Plaintiff-Appellant,

v.

BELMERE LIMITED PARTNERSHIP; FAIRFIELD PROPERTY
MANAGEMENT; ROBIN HERBERT,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-338


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Appellants Rogerio Ribeiro dos Santos, Edimar Ribeiro Duarte, and
Jussara dos Santos Rodrigues, appearing pro se and proceeding in forma
pauperis, appeal: (1) the district court’s grant of Appellees’ motion to dismiss for
lack of subject matter jurisdiction, and (2) the district court’s denial of oral
argument concerning a motion for reconsideration. WE AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30795       Document: 00512182735          Page: 2     Date Filed: 03/21/2013

                                        No. 12-30795

                                              I.
       In October 2011, Appellants were informed they would have to temporarily
relocate from Louisiana to Texas for employment. Knowing they would return
to Louisiana in February 2012, Appellants rented a temporary storage unit
(“Unit A20”) to store personal belongings at their Louisiana apartment complex
(“Belmere”). While Appellants were in Texas, Belmere’s management declared
Unit A20 abandoned and allegedly discarded and/or stole various contents of
Unit A20. Appellants filed suit in the United States District Court for the
Eastern District of Louisiana seeking compensatory and punitive damages
totaling over ten million dollars on multiple grounds.                  The district court
concluded that: (1) the court lacked subject matter jurisdiction because no
federal question was presented, and complete diversity of citizenship did not
exist; and (2) oral argument was unnecessary in support of Appellants’ motion
for reconsideration of the dismissal.1
                                              II.
       We first address Appellants’ jurisdiction claim. We review dismissals for
lack of subject matter jurisdiction de novo. Hoskins v. Bekins Van Lines, 343
F.3d 769, 772 (5th Cir. 2003). Federal question jurisdiction exists with respect
to “all civil actions arising under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Federal district courts also have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, and is between: (1) citizens of different States; or (2) citizens of a State
and citizens of a foreign state. 28 U.S.C. § 1332(a). Absent any federal question,
complete diversity of citizenship is required. Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987). Although we “liberally construe” the filings of pro se



       1
         Although Appellants cite numerous grounds in their notice of appeal, Appellants’ Brief
only addresses these two issues. Accordingly, any issue not briefed on appeal is waived. See
United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long been the rule in
this circuit that any issues not briefed on appeal are waived.”).

                                              2
     Case: 12-30795       Document: 00512182735          Page: 3     Date Filed: 03/21/2013

                                        No. 12-30795

litigants and “apply less stringent standards to parties proceeding pro se than
to parties represented by counsel,” the plaintiff must prove, by a preponderance
of the evidence, that the court has jurisdiction based on the complaint and
evidence. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Patterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
       We agree with the district court that it lacked subject matter jurisdiction
because no federal question was presented at the time suit was filed.2 To the
extent that Appellants rely on the Louisiana Code of Civil Procedure to argue
that a federal question exists, this argument lacks merit because a “federal
question exists only [in] those cases in which a well-pleaded complaint
establishes either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on resolution of a substantial
question of federal law.” Singh v. Duane Morris LLP, 538 F.3d 334, 337–38 (5th
Cir. 2008) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 27 (1983)). Appellants have cited to no federal law upon which
the district court can adjudicate. See Home Builders Ass’n of Miss., Inc. v. City
of Madison, 143 F. 3d 1006, 1010 (5th Cir. 1998) (“A case is properly dismissed
for lack of subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.”) (quoting Nowak v. Ironworkers
Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).                       Further, the
generalized references to the Constitution in Appellants’ complaint do not satisfy
their burden of showing that these claims arise under the Constitution, laws, or
treaties of the United States. Hoskins, 343 F.3d at 772 (“Under the well-pleaded
complaint rule, ‘federal jurisdiction exists only when a federal question is
presented on the face of plaintiff's properly pleaded complaint.’”) (quoting


       2
        Appellants assert the following state-based claims: “Invasion of Privacy; Torture; Hate
Crime due [sic] Racism; Negligence, Negligent Hiring, Intentional Infliction of Emotional
Distress; Depression; Scaring [sic]; Mental Anguish, [sic] Wrongful Eviction; Burglary and
Theft; Breech of Contract; Defamation.”

                                              3
    Case: 12-30795     Document: 00512182735      Page: 4    Date Filed: 03/21/2013

                                   No. 12-30795

Louisville & N.R. Co. v. Mottley, 211 U.S. 149 (1908)).
      Moreover, we disagree with Appellants’ claim that complete diversity of
citizenship existed at the time suit was filed, which is an alternative grounds for
federal subject matter jurisdiction. In order to establish diversity under § 1332,
no plaintiff can be a citizen of the same state as any of the defendants.
Wisconsin Dept. of Corr. v. Schacht, 524 U.S. 381, 388 (1998). For diversity
purposes, state citizenship is synonymous with domicile. Coury v. Prot, 85 F.3d
244, 249 (5th Cir. 1996). A change in domicile requires: “(1) physical presence
at the new location and (2) an intention to remain there indefinitely.” Id. at 250.
The basis for diversity jurisdiction must be “distinctly and affirmatively alleged.”
Mullins v. Test America, Inc., 564 F.3d 386, 397 (5th Cir. 2009). This court has
stated that a “failure to adequately allege the basis for diversity jurisdiction
mandates dismissal.” Stafford v. Mobile Oil Corp., 945 F.2d 803, 805 (5th Cir.
1991).
      While we review questions of law, such as jurisdiction, de novo, “most
courts regard domicile as presenting mixed questions of law and fact.” Coury, 85
F.3d at 251.    Accordingly, we review the district court's determination of
domicile as a question of fact; it will be upheld unless clearly erroneous. Id. The
district court did not clearly err in determining that Appellants were domiciled
in Louisiana at the time suit was filed. Although Appellants did relocate to
Texas temporarily, they continually expressed their intention to return to
Louisiana, as evidenced by statements in their first amended complaint: “[W]e
would have to relocate . . . for a the [sic] time being until the new contract [in
Louisiana] came out” and “we explained our situation and that we would be back
in February and sign a new lease . . . we were very clear that . . . Garage
A20 . . . would only be used so we could vacate the apartment, until we came
back in February.” Mere presence in a new state—without intent to remain—is
insufficient to change domicile for diversity purposes. Id. at 250. Therefore, in
failing to establish a domicile outside of Louisiana, Appellants destroyed the

                                         4
     Case: 12-30795        Document: 00512182735           Page: 5     Date Filed: 03/21/2013

                                         No. 12-30795

complete diversity of citizenship required under § 1332.3
       Next, we find no abuse of discretion in the district court’s denial of oral
argument in the instant case. Appellants do not provide any reasons to justify
oral argument, and the local rules of the Eastern District of Louisiana do not
guarantee a right to oral argument. LR 78.1.4
       As the district court noted, Appellants may have a right to seek relief in
state court on these state claims.
       Accordingly, the district court’s order is AFFIRMED.




       3
         At times Appellants claim diversity on the basis of their Brazilian citizenship,
presenting photocopies of Brazilian passports in support of this claim. Under § 1332, district
courts do not have original jurisdiction over actions between citizens of a state and foreign
citizens who are lawful permanent residents in that same state. We find no clear error in the
district court’s determination that Appellants were lawful permanent residents, domiciled in
Louisiana at the time suit was filed.
       4
         LR 78.1 reads, in part: “Oral argument will be permitted in such cases without further
order of the court, unless the court advises the parties, as soon as practicable, that the request
for oral argument is denied.”

                                                5
