Penigar vs. Bell Helicopter Text, (5th Cir. 2002)
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* Pursuant to 5 TH C IR .
R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. 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PER CURIAM: * The appellantÂ’s petition for rehearing is GRANTED, our prior panel opinion is WITHDRAWN, and this opinion is SUBSTITUTED therefor.
Kieron D. Penigar, Texas prisoner # 721657, appe als the district court§ 1915(e)(2)(B)(i). Penigar avers that the cou rt 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 PenigarÂ’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 courtÂ’s jurisdiction. W hitmire v. Victus Ltd. , 212 F.3d 885, 887 (5th Cir. 2000). Penigar appears to assert a trade secre t 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. S ee Bonito Boats, Inc. v. Thunder Craft Boats, Inc. , 489 U.S. 141, 155 (1989); Seatrax, Inc. v. Sonbeck IntÂ’l, Inc. , 200 F.3d 358, 363 (5th Cir. 2000). Thus, Penigar has not established federal question jurisdiction in this case. - 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 misappropria ted 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 courtÂ’s order dismissing Peni garÂ’s suit as frivolous and remand with instructions to dismiss this case for lack of jurisdiction.
VACATED and REMANDED with instructions.
No. 01-10864 -
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Seatrax, Inc., Plaintiff-Appellant, v. Sonbeck International, Inc., Patrick E. Hudson, Eddie H. Hudson, Jr., and Mark A. Bobeck, Defendants-Appellees,, 200 F.3d 358 (5th Cir. 2000)
- U.S. Court of Appeals for the Fifth Circuit - Anirut Goonsuwan, Also Known as Dong A. Manucy, Petitioner-Appellee, v. John Ashcroft, U. S. Attorney General, Respondent-Appellant., 252 F.3d 383 (5th Cir. 2001)
- U.S. Court of Appeals for the Fifth Circuit - Paula Jo Whitmire, Plaintiff-Appellant, v. Victus Limited T/a Master Design Furniture, Defendant-Appellee., 212 F.3d 885 (5th Cir. 2000)
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