Case: 19-60938     Document: 00515608894        Page: 1    Date Filed: 10/20/2020




           United States Court of Appeals
                for the Fifth Circuit                              United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 19-60938                       October 20, 2020
                               Summary Calendar                      Lyle W. Cayce
                                                                          Clerk

   Joyce Ann Smith,

                                                          Plaintiff—Appellant,

                                      versus

   Toyota Motor Corporation; Diversity Vuteq, L.L.C.,

                                                        Defendants—Appellees.


                  Appeal from the United States District Court
                    for the Northern District of Mississippi
                             USDC No. 1:19-CV-6


   Before Clement, Higginson, and Engelhardt, Circuit Judges.
   Stephen A. Higginson, Circuit Judge:
         Plaintiff–Appellant Joyce Smith appeals the district court’s dismissal
   without prejudice for lack of subject matter jurisdiction. We AFFIRM.
         Smith filed a pro se complaint in the district court against Toyota
   Motor Corporation (“Toyota”) and Diversity Vuteq, L.L.C. (“Diversity”)
   asserting claims under 42 U.S.C. § 1983 and Mississippi state law. After the
   district court ordered Smith to file an amended complaint, Smith obtained
   counsel and filed an amended complaint. The amended complaint asserted
   no federal question jurisdiction and argued that the district court had
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                                      No. 19-60938


   diversity jurisdiction over her state law claim. The amended complaint
   alleged that Smith is a citizen of Mississippi, Diversity is a citizen of
   Mississippi and Indiana, and Toyota is a citizen of Japan. Defendants moved
   to dismiss for, inter alia, lack of subject matter jurisdiction. The district court
   held that Smith’s amended complaint, on its face, established that diversity
   citizenship did not exist and dismissed the case without prejudice.
          We review de novo a district court’s dismissal for lack of subject matter
   jurisdiction. United States v. McGill, 

, 65 (5th Cir. 1996). To
   properly allege diversity jurisdiction under 28 U.S.C. § 1332, a party must
   allege “complete diversity,” which means that “all persons on one side of
   the controversy [must] be citizens of different states than all persons on the
   other side.” McLaughlin v. Miss. Power Co., 

, 353 (5th Cir. 2004)
   (per curiam).
          In this case, Smith’s amended complaint alleged that Plaintiff–
   Appellant Smith and Defendant–Appellee Diversity are citizens of the same
   state, Mississippi. Accordingly, the district court was correct in holding
   there is no diversity jurisdiction and thus no subject matter jurisdiction.
          Smith’s altering of the jurisdictional facts she alleges on appeal—
   omitting any mention of Diversity’s citizenship in her appellate brief and
   alleging only that Diversity is “located” in Indiana in her appellate reply
   brief—does not alter our decision. Factual allegations not contained in the
   record may not be raised on direct appeal. United States v. Tappen, 

, 142 (5th Cir. 1973).
          Even assuming the altered jurisdictional facts are true, Smith has not
   met her burden of establishing complete diversity of the parties. The party
   asserting diversity jurisdiction “must ‘distinctly and affirmatively allege [ ]’
   the citizenship of the parties.” Howery v. Allstate Ins. Co., 

, 919
   (5th Cir. 2001) (alteration in original) (quoting Stafford v. Mobil Oil Corp.,




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                                      No. 19-60938


   

, 804 (5th Cir. 1991)). To adequately allege the citizenship of
   Toyota, a corporation, Smith needed to “set out the principal place of
   business of the corporation as well as the state of its incorporation.” Neeley
   v. Bankers Tr. Co. of Tex., 

, 634 n.18 (5th Cir. 1985) (citing Illinois
   Cent. Gulf R. Co. v. Pargas, Inc., 

, 637 (5th Cir. 1983)). To
   adequately allege the citizenship of Diversity, a limited liability corporation,
   Smith needed to “specifically allege the citizenship of every member of every
   LLC or partnership involved in a litigation.” Settlement Funding, L.L.C. v.
   Rapid Settlements, Ltd., 

, 536 (5th Cir. 2017) (citing Am. Motorists
   Ins. Co. v. Am. Emp. Ins. Co., 

, 16 (5th Cir. 1979) (per curiam)).
          “Failure adequately to allege the basis for diversity jurisdiction
   mandates dismissal.” 

(internal quotation marks
   omitted) (quoting 

). The district court’s dismissal
   without prejudice is AFFIRMED.




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