Summary Calendar JOHN WECKESSER v. Chicago Bridge & Iron; L Gbarcus Inc; City of Biloxi

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60987
Summary Calendar
JOHN WECKESSER
Plaintiff - Appellant
v.
CHICAGO BRIDGE & IRON; L G BARCUS INC; CITY OF BILOXI
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Mississippi, Gulfport
No. 1:07-CV-982
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant John Weckesser appeals the district court’s dismissal
of his case for lack of subject matter jurisdiction. Because we agree with the
district court that Weckesser did not state a cause of action arising under federal
law, and complete diversity of citizenship did not exist, we affirm.
United States Court of Appeals
Fifth Circuit
F I L E D
May 6, 2008
Charles R. Fulbruge III
Clerk

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I. BACKGROUND
On February 12, 2007, John Weckesser, a resident of the state of
Mississippi, filed a pro se complaint against the City of Biloxi (the “City”), L.G.
Barcus, Inc. (“L.G. Barcus”), and Chicago Bridge & Iron (“CBI”). According to
the complaint, beginning in February 2005, L.G. Barcus and CBI constructed a
water tower for the City near Weckesser’s home in Biloxi, Mississippi.
Weckesser alleged that his house and property were damaged as a result of the
negligent construction of the City’s water tower. For example, Weckesser
claimed that a drilling rig used to install pilings violently shook the earth
around his house, and thereby cracked its ceilings and floors. Sparks from the
welding process, meanwhile, allegedly damaged the house’s vinyl siding and its
asphalt shingles. In addition, Weckesser averred that the use of gravel and
backfill to grade the construction site raised the site above the surrounding area,
which caused water to pool upon Weckesser’s property. As a result of these and
other losses, including loss of rental income and mental anguish, Weckesser
sought $100,000 in damages from each defendant.
On September 21, 2007, the City moved to dismiss the case under Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, the
City argued that Weckesser: (1) failed to serve the City with a notice of claim
before serving it with process, as required by the Mississippi Tort Claims Act,
MISS. CODE ANN. § 11-46-11(1); (2) failed to comply with the one-year statute of
limitations period set forth in the Mississippi Tort Claims Act, MISS. CODE ANN.
§ 11-46-11(3); and (3) failed to properly effect service of process on the City.
On November 9, 2007, the district court dismissed the case in its entirety.
The district court did not consider the grounds for dismissal raised by the City.
Rather, it held that it lacked subject matter jurisdiction over the case. The
district court noted that diversity jurisdiction did not exist because Weckesser
and the City were both residents of Mississippi. Next, the district court held

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No. 07-60987
1 Weckesser seemingly does not argue that the district court erred by finding a lack of
diversity jurisdiction. To the extent that he takes exception, however, we hold that the district
court correctly found that diversity jurisdiction did not exist because Weckesser and the City
were both residents of Mississippi. See Freeman v. Nw. Acceptance Corp., 754 F.2d 553, 555
(5th Cir. 1985) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806); Powell v. Offshore
Navigation, Inc., 644 F.2d 1063 (5th Cir. 1981)) (stating that under 28 U.S.C. § 1332, diversity
of citizenship must be complete, meaning that each plaintiff must have citizenship different
from that of each defendant).
3
that federal question jurisdiction did not exist because, even under the most
liberal construction of the complaint, Weckesser did not state a cause of action
arising under federal law. Weckesser “allege[d] nuisance, property damage,
negligence, and reckless disregard—all state law claims.” The district court
explained that Weckesser did not state a federal takings claim because he
asserted neither that he was deprived of property without just compensation nor
that he exhausted state remedies to seek just compensation before bringing the
lawsuit. Additionally, the district court opined that Weckesser did not assert a
due process claim since he alleged only negligent and reckless conduct.
On November 20, 2007, Weckesser filed this timely appeal.
II. ANALYSIS
Weckesser argues that the district court erred by dismissing the case
because his claims arise under federal law, and jurisdiction exists under 28
U.S.C. § 1331.1 In particular, Weckesser argues that the allegations in his
complaint state claims for relief under the Fourteenth Amendment’s Due Process
Clause and the Fifth Amendment’s Takings Clause. In addition, Weckesser
argues that he recently discovered that he has an action against the defendants
arising under the National Environmental Policy Act of 1969 (“NEPA”), 42
U.S.C. § 4321, et seq., because the water tower construction was funded by the
federal government.

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2 Our review is not altered by the fact that the defendants did not move for dismissal
based on the lack of subject matter jurisdiction because any federal court may raise the issue
sua sponte at any time. Johnston v. United States, 85 F.3d 217, 218 n.2 (5th Cir. 1996)
(citation omitted); see also Freeman, 754 F.2d at 555 (citation omitted) (stating that it is the
duty of the court to raise the issue of subject matter jurisdiction sua sponte).
4
We review a dismissal for lack of subject matter jurisdiction de novo. Krim
v. PCOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted).2 “A
case is properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Id. (citation
and internal quotations omitted). Under § 1331, a district court has federal
question jurisdiction over “all civil actions arising under the Constitution, laws,
or treaties of the United States.” § 1331. The federal question must appear on
the face of the plaintiff’s well-pleaded complaint. MSOF Corp. v. Exxon Corp.,
295 F.3d 485, 490 (5th Cir. 2002) (citation omitted); see also Louisville &
Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (“[A] suit arises under the
Constitution and laws of the United States only when the plaintiff’s statement
of his own cause of action shows that it is based upon those laws or that
Constitution.”). Of course, we construe pleadings filed by pro se litigants
liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
We agree with the district court that Weckesser has failed to state a cause
of action arising under federal law. There is certainly no explicit reference to
any federal law or cause of action in his complaint. Weckesser pled only state
law actions, such as claims for negligence and private nuisance. Nor even under
the most liberal interpretation of Weckesser’s complaint can we construe the
alleged facts to state a cause of action arising under federal law. See Hildebrand
v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (citations omitted). As the
district court noted, Weckesser did not state a federal due process claim because
he merely averred that the City was negligent or reckless. See County of
Sacramento v. Lewis, 523 U.S. 883, 848-49 (1998). Similarly, the district court

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correctly held that Weckesser did not plead a federal takings claim because he
did not assert that he sought compensation for a taking through available state
remedies or that he was consequently denied just compensation. See John Corp.
v. City of Houston, 214 F.3d 573, 580-81 (5th Cir. 2000). Lastly, Weckesser
cannot avoid dismissal by raising a federal NEPA claim for the first time in his
appellate briefs because the claim was not a part of his well-pleaded complaint.
See MSOF, 295 F.3d at 490.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.

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