United States Court of Appeals

for the Fifth Circuit

No. 19-60938

Summary Calendar

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 

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2020

Lyle W. Cayce

Clerk

Case: 19-60938 Document: 00515608894 Page: 1 Date Filed: 10/20/2020
No. 19-60938

2

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, 74 F.3d 64, 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., 376 F.3d 344, 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, 488 F.2d 

142, 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., 243 F.3d 912, 919 

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

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945 F.2d 803, 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., 757 F.2d 621, 634 n.18 (5th Cir. 1985) (citing Illinois 

Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 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., 851 F.3d 530, 536 (5th Cir. 2017) (citing Am. Motorists 

Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979) (per curiam)).

“Failure adequately to allege the basis for diversity jurisdiction 

mandates dismissal.” Howery, 243 F.3d at 919 (internal quotation marks 

omitted) (quoting Stafford, 945 F.2d at 805). The district court’s dismissal 

without prejudice is AFFIRMED.

Case: 19-60938 Document: 00515608894 Page: 3 Date Filed: 10/20/2020