     Case: 15-10439      Document: 00513338088         Page: 1    Date Filed: 01/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10439                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         January 11, 2016
BOAZ LEGACY, L.P.,                                                         Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

MONTY RAY ROBERTS,

              Defendant–Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:15-CV-41


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Boaz Legacy, L.P. (Boaz) sued Monty Ray Roberts in Texas state court
over the ownership of a tract of land located south of the Red River. Roberts
removed the case to federal court and then moved to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The
district court granted the motion and dismissed the case. Boaz filed a motion
to reconsider, requesting that the district court remand the case to Texas state


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10439
court rather than dismiss it outright. The district court denied the motion. We
affirm the district court’s dismissal.
                                                I
       Even where the requirements of diversity jurisdiction are met, the
subject matter jurisdiction of the federal courts is limited by the local action
doctrine.    Under the local action doctrine, “[a] local action involving real
property can only be brought within the territorial boundaries of the state
where the land is located,” and thus “courts lack jurisdiction over the subject
matter of claims to land located outside the state in which the court sits.” 1 The
local action doctrine applies equally to state courts. 2 The law of the forum state
determines whether an action is local, 3 and under Texas law, “actions that seek
adjudication of title to real property are local in nature and must be brought
where the land is situated.” 4
       Where a defendant attacks the subject matter jurisdiction of a federal
court on a factual basis, the plaintiff must submit facts through some
evidentiary method to prove by a preponderance of the evidence that
jurisdiction exists. 5
                                               II
       According to the Red River Boundary Compact, the political boundary
line between Texas and Oklahoma along the portion of the Red River relevant
to this dispute is “the vegetation line along the south bank of the Red River.” 6



       1  Hayes v. Gulf Oil Corp., 821 F.2d 285, 287 (5th Cir. 1987).
       2  Hayes, 821 F.2d at 287; see also Trutec Oil & Gas, Inc. v. W. Atlas Int’l, Inc., 194
S.W.3d 580, 583 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“Texas courts may not
adjudicate title to realty in another state or country; they do not have subject matter
jurisdiction over property outside the state.” (citing Holt v. Guerguin, 163 S.W. 10, 12 (1914))).
        3 Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1149 (5th Cir. 1992).
        4 Bailey v. Shell W. E&P, Inc., 609 F.3d 710, 721 (5th Cir. 2010).
        5 Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
        6 TEX. NAT. RES. CODE ANN. § 12.002 (West 2013).

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                                   No. 15-10439
Roberts submitted evidence to the district court that the property lies north of
the vegetation line. Boaz has not disputed this fact but instead argues that
the Compact “is not applicable to adjudicate a boundary dispute among private
landowners.” But as the district court pointed out, this argument conflates the
underlying dispute with the present determination, which is purely
jurisdictional. At issue for purposes of the local action doctrine is the state in
which the land is located. The Compact establishes the relevant boundary line,
and Roberts’s unrebutted evidence establishes that the property lies in
Oklahoma. The district court thus properly determined that it lacked subject
matter jurisdiction pursuant to the local action doctrine.
                                         III
      Boaz argues that upon deciding that it lacked subject matter jurisdiction,
the district court should have remanded the case to state court pursuant to
28 U.S.C. § 1447(c), which provides that “[i]f at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.”      Boaz points to the Supreme Court’s observation in
International Primate Protection League v. Administrators of Tulane
Education Fund that “the literal words of § 1447(c) . . . on their face, give . . . no
discretion to dismiss rather than remand an action.” 7 But the Court did not
decide Tulane on that basis. Instead, the Court reasoned that remand to state
court was proper because the First Circuit had incorrectly concluded that
remand would be futile under the facts of that case. 8 Rather than establish
that remand to state court is necessary even when it is futile, the Court




      7500 U.S. 72, 89 (1991) (quoting Maine Ass’n of Interdependent Neighborhoods v.
Comm’r, Maine Dep’t of Human Servs., 876 F.2d 1051, 1054 (1st Cir. 1989)).
     8 Id. at 87-89.

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                                        No. 15-10439
determined that “uncertainties in the case before us preclude a finding that a
remand would be futile.” 9
       This Circuit has since acknowledged, in Trust Co. Bank v. United States
Gypsum Co., that dismissal, rather than remand, may be proper if a suit is a
local action over which the state court in which it was brought also would lack
jurisdiction. 10 Boaz’s argument that the futility exception does not apply here
because state courts determine their own jurisdiction is unavailing: Texas law
plainly indicates that the local action doctrine applies in Texas and that this
type of dispute is a local action.
                                            *       *      *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       9  Id. at 89.
       10  950 F.2d 1144, 1148 (5th Cir. 1992) (“If this case is indeed a local action, then the
district court properly dismissed it.”); see also In re Halo Wireless, Inc., 872 F. Supp. 2d 558,
563-64 (W.D. Tex. 2012) (“[T]he Fifth Circuit embraces the futility-exception
doctrine . . . . However, the exception applies only where it is clear that the lower court lacks
subject matter jurisdiction.”).
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