Conference Calendar JERRY MGILBERT; DELORES GILBERT v. Danny Bartel, Md

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10545
Conference Calendar
JERRY M GILBERT; DELORES GILBERT
Plaintiffs-Appellants
v.
DANNY BARTEL, MD; NORTH TEXAS NEUROLOGY ASSOCIATES, LLP;
NORTH TEXAS NEUROLOGY ASSOCIATES, INC
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:06-CV-177
Before PRADO, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jerry and Delores Gilbert have appealed the district court’s dismissal for
lack of subject matter jurisdiction of a complaint naming Danny Bartel, M.D.;
North Texas Neurology Associates, Inc.; and North Texas Neurology Associates,
L.L.P. (collectively, Bartel) as defendants. The complaint alleged that Bartel
committed malpractice in treating Ms. Gilbert and concealed Ms. Gilbert’s
United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2008
Charles R. Fulbruge III
Clerk

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No. 07-10545
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medical records in order to avoid liability in a state tort lawsuit. The Gilberts
alleged claims of obstruction of justice, perjury, civil rights violations, breach of
contract, fraud, deceptive trade practices, and gross negligence, as well as claims
under 29 U.S.C. § 1113; 42 U.S.C. § 1320a-7a; and 18 U.S.C. §§ 3, 4, 1341 and
1343.
A case that does not present either federal question jurisdiction or
diversity jurisdiction is subject to dismissal for lack of subject matter
jurisdiction. FED. R. CIV. P. 12(b)(1), (h)(3). We review de novo the dismissal of
a complaint for lack of subject matter jurisdiction. Musslewhite v. State Bar of
Texas, 32 F.3d 942, 945 (5th Cir. 1994).
As the Gilberts do not allege that diversity of citizenship exists in this
case, they must establish federal question jurisdiction. 28 U.S.C. § 1331. The
district court held that federal question jurisdiction did not exist because the
Gilberts alleged no facts that would support a claim under ERISA, they lacked
standing to press criminal charges against Bartel, and they alleged no facts that
would support a civil rights claim. The district court held that, as federal
jurisdiction was lacking, it could not exercise supplemental jurisdiction over the
Gilberts’ state law claims. We agree with the district court’s conclusion that
federal jurisdiction does not exist in this case; however, we modify the judgment
of dismissal to reflect that any pendent state law claims are dismissed without
prejudice. See Sarmiento v. Texas Bd. of Veterinary Med. Examiners by and
through Avery, 939 F.2d 1242, 1245 (5th Cir. 1991); see Bass v. Parkwood Hosp.,
180 F.3d 234, 246 (5th Cir. 1999).
JUDGMENT MODIFIED AND AFFIRMED AS MODIFIED.

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