Summary Calendar OTEEVA, LP; OTEEVA LLC; OTEEVA, INC.; TRAVIS BUSTER; WENDY BUSTER v. X-Concepts LLC; Vision-Scape Interactive, Inc.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11181
Summary Calendar
OTEEVA, LP; OTEEVA LLC; OTEEVA, INC.; TRAVIS BUSTER; WENDY
BUSTER,
Plaintiffs - Appellants,
v.
X-CONCEPTS LLC; VISION-SCAPE INTERACTIVE, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of Texas
3:06-CV-832
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The plaintiffs filed this action in the United States District Court for the
Northen District of Texas seeking to vacate an arbitration award entered against
the plaintiffs in Arizona. The district court dismissed the case for improper
venue and subsequently denied the plaintiffs’ request, raised for the first time
in a motion for a new trial, to transfer the case to Arizona. The plaintiffs appeal.
United States Court of Appeals
Fifth Circuit
F I L E D
November 2, 2007
Charles R. Fulbruge III
Clerk

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No. 06-11181
2
Although not raised by the parties or the district court, we must first
determine whether we have subject matter jurisdiction to consider this appeal.
See Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 301 n.2 (5th Cir.
2005) (“This court has an obligation to consider possible objections to our
jurisdiction sua sponte.”); Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.
2001) (same). We have a special obligation to satisfy ourselves not only of our
own jurisdiction, but that of the district court as well. Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986); Mocklin v. Orleans Levee Dist., 877
F.2d 427, 438 n.3 (5th Cir. 1989). Our review of the district court’s exercise of
subject matter jurisdiction is plenary. Smith v. Rush Retail Centers, Inc., 360
F.3d 504, 505 (5th Cir. 2004).
Before the district court, the plaintiffs asserted federal jurisdiction under
9 U.S.C. § 10, the section of the Federal Arbitration Act (“FAA”) that establishes
the mechanism for vacating an arbitration award. However, we have held
squarely that “FAA § 10 does not create federal subject matter jurisdiction.”
Smith v. Rush Retail Centers, Inc., 360 F.3d 504, 506 (5th Cir. 2004). “It is well
established that the FAA is not an independent grant of federal jurisdiction.”
Id. at 505. Therefore, FAA § 10 provided no basis for the district court to
exercise subject matter jurisdiction in this case.
In the plaintiffs’ statement of jurisdiction to this Court, the plaintiffs now
also assert 28 U.S.C. § 1332, the federal diversity statute, as a basis for
jurisdiction.
For diversity jurisdiction, the party asserting federal jurisdiction
must distinctly and affirmatively allege the citizenship of the
parties. Failure adequately to allege the basis for diversity
jurisdiction mandates dismissal. [The plaintiffs] thus bear[] the
burden of establishing diversity; if [they] fail[] to meet that burden,
we cannot presume the existence of federal jurisdiction.

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No. 06-11181
1 Section 1653 provides: “Defective allegations of jurisdiction may be amended, upon
terms, in the trial or appellate courts.”
2 To be absolutely clear: The dismissal for lack of subject matter jurisdiction is based
solely on the inadequate allegations and factual record before us. The plaintiffs’ brief
represents that this case has been re-filed in the federal district court in Arizona. This opinion
should not be read as determining or even considering whether jurisdiction is properly laid in
that forum, which will of course depend on the particular jurisdictional facts and allegations
in that case, and thus the dismissal is to that extent WITHOUT PREJUDICE.
3
Howery, 243 F.3d at 919 (internal quotation marks, alterations, citations, and
footnotes omitted).
Although the plaintiffs assert in their statement of jurisdiction that they
filed this action pursuant to 28 U.S.C. § 1332, we do not find that statement to
be accurate. The complaint nowhere mentions § 1332 or diversity jurisdiction.
More importantly, the complaint—as well as the record generally—contains
insufficient detail for us to determine the citizenship for diversity purposes of the
various parties. These jurisdictional defects are not those of the “technical” or
“formal” variety that can be cured pursuant to 28 U.S.C. § 1653.1 See Howery,
243 F.3d at 920 (“[I]f there is no evidence of diversity on the record, we cannot
find diversity jurisdiction, and we must dismiss the action for lack of
jurisdiction.”).
Because of the absence of adequate diversity allegations and the lack of
sufficient evidence of diversity in the record before us, we conclude that the
plaintiffs have failed to satisfy their burden of establishing federal jurisdiction.
Because the plaintiffs have failed to meet their burden, we cannot assume that
jurisdiction exists, and we therefore conclude that the district court lacked
subject matter jurisdiction in this case.
For these reasons, we VACATE and REMAND with instructions that the
district court DISMISS the case for lack of subject matter jurisdiction.2

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