                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT



                                  No. 01-10864
                              Conference Calendar


                               KIERON D. PENIGAR,

                                                       Plaintiff-Appellant,

                                       versus

                         BELL HELICOPTER TEXTRON, INC.,

                                                       Defendant-Appellee.

                        --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 4:01-CV-473-A
                        --------------------
                          December 28, 2001

                           ON PETITION FOR REHEARING



Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     The appellant’s petition for rehearing is GRANTED, our prior

panel    opinion    is    WITHDRAWN,    and     this    opinion   is   SUBSTITUTED

therefor.

     Kieron D. Penigar, Texas prisoner # 721657, appeals the

district court’s dismissal of his in forma pauperis (IFP) complaint

against Bell Helicopter Textron, Inc. (Bell).                 Penigar sued Bell

for its unauthorized use of his design for a hydraulic lift

transformer.       Penigar contended that in 1991 or 1992, Bell began

     *
      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this opinion should not be published and is not precedent except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.
                              No. 01-10864
                                  - 2 -

production of a prototype aircraft, the V22 Osprey, whose tilt

rotor wing design resembled his transformer drawings. The district

court   dismissed   his   suit   as     frivolous      pursuant    28   U.S.C.

§ 1915(e)(2)(B)(i).

     Penigar   avers   that   the     court   abused    its   discretion    in

dismissing his complaint.     He contends that he “presented factual

allegations that give merit to his claim” and that he “was not

afforded opportunity to bolster claim with proof.”                Penigar also

avers that he has “a key witness to support his claim.”

     We dismiss Penigar’s suit without reaching the merits of his

appeal because Penigar has not established the existence of federal

jurisdiction over this case.        Although the district court did not

discuss the issue of subject matter jurisdiction, this court must

consider sua sponte whether jurisdiction is proper in this suit.

See Goonsuwan v. Ashcroft, 252 F.3d 383, 385 (5th Cir. 2001).             When

prosecuting a suit in federal court, the plaintiff has the burden

of establishing the court’s jurisdiction. Whitmire v. Victus Ltd.,

212 F.3d 885, 887 (5th Cir. 2000).

     Penigar appears to assert a trade secret misappropriation

claim against Bell. Nothing in his complaint indicates that he has

a patent or trademark on his transformer idea.            Unlike patent and

trademark law, trade secret misappropriation is a matter of state

law. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S.

141, 155 (1989); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d

358, 363 (5th Cir. 2000).           Thus, Penigar has not established

federal question jurisdiction in this case.
                             No. 01-10864
                                 - 3 -

     In a diversity suit, the plaintiff must establish that there

is complete diversity of citizenship between the opposing parties.

Whitmire, 212 F.3d at 887.   Penigar, however, has not alleged facts

invoking diversity   jurisdiction   in   this   case.   In   fact,   his

complaint indicates that he is a Texas resident and suggests that

Bell is a Texas corporation.   He lists Bell as having a Fort Worth,

Texas address and alleges that the company misappropriated his

transformer design when his mother brought his transformer drawings

to the Bell plant near Arlington, Texas.

     Because we find no basis for federal jurisdiction in this

case, we vacate the district court’s order dismissing Penigar’s

suit as frivolous and remand with instructions to dismiss this case

for lack of jurisdiction.



     VACATED and REMANDED with instructions.
