     Case: 11-10834     Document: 00511800531         Page: 1     Date Filed: 03/26/2012




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

                                                                            FILED
                                                                          March 26, 2012

                                     No. 11-10834                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RODOLFO VELA; ANNA VELA,

                                                  Plaintiffs–Appellants
v.

BRADLEY M. MANNING; AMERICAN NATIONAL INSURANCE
COMPANY; R. G. PATTERSON; H. F. ALDREIDGE; B. J. GARRISON,

                                                  Defendants–Appellees



                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-685


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Plaintiffs–Appellants Rodolfo and Anna Vela (the “Velas” or “Appellants”),
proceeding pro se, brought suit against Defendants–Appellees Bradley M.
Manning, American National Insurance Company (“ANIC”), R. G. Patterson, H.
F. Aldreidge, and B. J. Garrison (collectively, “Appellees”). Their suit appears to
arise from ANIC’s handling of a life insurance claim that the Appellants filed


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10834

after their son’s death, as well as issues related to Rodolfo Vela’s termination
from ANIC in 1989. This federal lawsuit is an apparent attempt to re-litigate a
state lawsuit that was dismissed in 2009. See Vela v. Manning, 314 S.W. 3d 693,
693-94 (Tex. App.–Dallas 2010).1
       The Appellees moved to dismiss the suit for lack of subject matter
jurisdiction, as the case arose neither under the district court’s federal question
jurisdiction nor its diversity jurisdiction. 28 U.S.C. § 1331, 1332(a). The
magistrate judge found no viable basis for federal subject matter jurisdiction,
and therefore recommended dismissal of the action without prejudice. The
district court adopted the recommendation, and the Velas timely appealed. On
appeal, the parties cross-moved for sanctions.
       We “apply a de novo standard of review to a motion to dismiss under Rule
12(b)(1).” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012).
We agree that the Velas’ first amended complaint fails to allege a basis of federal
jurisdiction, which is required under Federal Rule of Civil Procedure 8(a)(1).
When bringing suit in federal court, “[t]he plaintiff has the burden of pleading
the existence of the court’s jurisdiction, and, in a diversity action, the plaintiff
must state all parties’ citizenships such that the existence of complete diversity
can be confirmed.” Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5th Cir. 2000)
(citation and internal quotation marks omitted). It is well established that “[t]he
diversity statute requires ‘complete diversity’ of citizenship: a district court
cannot exercise diversity jurisdiction if one of the plaintiffs shares the same
state citizenship as one of the defendants.” Whalen v. Carter, 954 F.2d 1087,
1094 (5th Cir. 1992) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806)).



       1
         This, of course, would implicate Rooker–Feldman concerns. See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413, 416 (1923). We need not address this issue, however, because we conclude that the
district court lacked diversity or federal question jurisdiction.

                                             2
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                                       No. 11-10834

Here, the Velas’ complaint identifies all parties as citizens of Texas.2 Without
complete diversity, this suit cannot proceed under 28 U.S.C. § 1332(a).
       Federal question jurisdiction is also absent. A federal court has
jurisdiction over “all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. “Under the well-pleaded
complaint rule, a federal court does not have federal question jurisdiction unless
a federal question appears on the face of the plaintiff’s well-pleaded complaint.”
Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). Although the
amended complaint is quite difficult to decipher, we understand the Velas to
bring claims for fraud, defamation, and breach of contract. They also appear to
bring claims for wrongful denial of life insurance benefits under the Texas
Deceptive Trade Practices Act and Texas Insurance Code, related to their son’s
July 2001 death. These causes of action arise under state law, and therefore
cannot support federal question jurisdiction.
       For the first time in their response filed in the district court, and in their
submissions to this panel, the Velas raise certain federal claims, namely age
discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. (“ADEA”), civil rights claims under 42 U.S.C. § 1983, related
to the county sheriff’s investigation of their son’s death, and a claim under the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.
(“RICO”). Such claims cannot support federal question jurisdiction because they
do not “appear[] on the face of the plaintiff’s well-pleaded complaint.” Elam, 635




       2
        Although the Velas stated for the first time in their response to the motion to dismiss
that “one defendant[] was from the state of Missouri,” such an allegation (even if procedurally
proper) still fails to satisfy the complete diversity requirement.

                                              3
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                                         No. 11-10834

F.3d at 803.3 The district court thus properly dismissed the Velas’ lawsuit for
lack of subject matter jurisdiction.4
       We briefly address the parties’ cross-motions for sanctions. Under the
Federal Rules of Appellate Procedure, “[i]f a court of appeals determines that an
appeal is frivolous, it may . . . award just damages and single or double costs to
the appellee.” FED. R. APP. P. 38. The Appellees request an award of double costs
and attorneys’ fees, and an order that the Appellants may not make any further
filings without a certification of merit from the district court.
       We have, of course, awarded sanctions against pro se litigants in the past.
See, e.g., Taylor v. C.I.R., 350 F. App’x 913, 916 (5th Cir. 2009); Robinson v.
Louisiana, 355 F. App’x 860, 862 (5th Cir. 2009). While “[w]e do not lightly
impose sanctions for invoking the right of appeal,” we have warned that “pro se
plaintiffs are not granted unrestrained license to pursue totally frivolous
appeals.” Tyler v. Cedar Hill Indep. Sch. Dist., 426 F. App’x 306, 309 (5th Cir.
2011) (citation and internal quotation marks omitted). “Where pro se litigants
are warned that their claims are frivolous . . . and where they are aware of the
ample legal authority holding squarely against them, then sanctions are
appropriate.” Id. (citation and internal quotation marks omitted).
       In dismissing this lawsuit, the district court did not warn the Appellants
that their claims were frivolous. We understand the Appellants’ actions in this
case to be a product of their failure to understand the intricacies of the federal


       3
        The claims are also insufficient for other reasons. The statutory period for Rodolfo
Vela’s ADEA claim has long since expired, 29 U.S.C. § 626(d)(1)(A), (e), and the Section 1983
claim appears to be against certain county officials who are not parties to this suit. Finally,
the Velas’ vague RICO claim is raised for the first time in their initial brief on appeal.
       4
          On appeal, the Velas vaguely refer to other district court errors on the topics of waiver
and discovery. Such arguments not explained in any detail, and are therefore waived. See
Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008) (“A party waives an issue if he
fails to adequately brief it.”) (citation and internal quotation marks omitted). In any event, the
lack of federal jurisdiction obviates any need to address these other arguments.

                                                4
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legal system, rather than bad faith or an intent to harass. We therefore decline
to exercise our authority to impose sanctions against the Velas. See Lonsdale v.
C.I.R., 661 F.2d 71, 72 (5th Cir. 1981) (“Bending over backwards, in indulgence
of appellants’ pro se status, we today forbear the sanctions of Rule 38.”). The
Velas, however, have now received a clear ruling that federal jurisdiction over
their lawsuit is lacking, and that pursuit of such claims in federal court is
frivolous. We therefore order the Appellants not to file any further lawsuits
against the Appellees in any federal district court within the Fifth Circuit unless
and until a district court judge concludes that any such suit is not facially
meritless or frivolous.5
      The judgment of the district court is AFFIRMED.




      5
          The Velas’ cross-motion for sanctions is plainly without merit and is denied.

                                               5
