                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               APR 15 1997
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk
 BARBARA SCHWARZ,

          Plaintiff-Appellant,

              v.                                             No. 97-4004
                                                       (D.C. No. 96-CV-611-S)
 WOODRUFF, INC.; TED C.                                       (D. Utah)
 JACOBSEN, Agent; LEO JACOBSEN;
 RUTH KIRBY, President of Woodruff,
 Inc.; MARGARET J. BENNION;
 WAYNE IVIE; JOHN GOFF,

          Defendants-Appellees.



                                 ORDER AND JUDGMENT*



Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

      Plaintiff Barbara Schwarz, appearing pro se, appeals the dismissal of her action

against defendants for harassment and breach of contract.


      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff and her mother were renting an apartment from Woodruff, Inc. Plaintiff

complained of loud noises by other tenants and asked to move to another apartment in the

same building. Plaintiff was offered another apartment, paid the rent for that apartment,

and hired movers to pack and move. However, plaintiff discovered the apartment was not

ready for occupancy on the date promised. Plaintiff complained to Ted Jacobsen,

registered agent for Woodruff, and the manager terminated her tenancy.

       Plaintiff filed her complaint on July 17, 1996, against Woodruff and Jacobsen,

alleging harassment and breach of contract. A magistrate judge found her action should

be dismissed for lack of subject matter jurisdiction because plaintiff had not shown the

existence of diversity or that the amount in controversy exceeded $50,000, as required by

28 U.S.C. § 1332(a). Plaintiff filed written objections to the magistrate's

recommendation.

       On August 27, 1996, the district court adopted the magistrate's recommendation to

the extent it concluded plaintiff had pleaded neither diversity jurisdiction nor the

existence of a state actor. The court found, however, that plaintiff appeared to be

attempting to bring a claim under the Federal Fair Housing Act, 42 U.S.C. § 3601, and

subject matter jurisdiction could be based on a federal question pursuant to 28 U.S.C. §

1331. The court dismissed plaintiff's action because the complaint was vague and

conclusory and lacked sufficient facts to sustain such a claim, but granted plaintiff leave

to amend her complaint to state a claim under the Fair Housing Act. The court set forth

specific directions for compliance with its order.

       Plaintiff filed her amended complaint on September 11, 1996, against Woodruff,

Jacobsen, Ruth Kirby (president of Woodruff), Margaret Bennion (a stockholder of


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Woodruff), Wayne Ivie, Carolyn Brakey, and John Goff. On December 20, 1996, the

district court dismissed the amended complaint, finding plaintiff had raised no Fair

Housing Act issues and that any issues raised were matters of state law. The court found

there was no diversity jurisdiction and that as a nonlawyer, plaintiff could not represent

the interests of another person.

       On appeal, plaintiff contends (1) when state judges deny constitutional rights,

federal district courts have a duty to correct those violations; (2) diversity exists because a

stockholder of Woodruff is a resident of California; (3) her roommate (her mother) is too

sick to "battle with judges"; and (4) Fair Housing issues raised were federal issues. She

also alleges bias and prejudice on the part of the state and federal courts.

       We have carefully reviewed plaintiff's brief on appeal, the record on appeal, and

all of the pleadings, and find that the district court did not err in dismissing plaintiff's

action. The requisite amount in controversy and the existence of diversity must be

affirmatively established in the pleading of the party seeking to invoke jurisdiction. See

Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied 116 S. Ct. 174 (1995).

Here, neither plaintiff's complaint nor her amended complaint satisfied these

requirements. Further, plaintiff's claims do not fall within the Fair Housing Act.

       AFFIRMED. The mandate shall issue forthwith.

                                                     Entered for the Court

                                                     Mary Beck Briscoe
                                                     Circuit Judge




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