REVISED October 6, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30492

IN RE: KATRINA CANAL BREACHES LITIGATION

ELIZABETH H DEPASS; WILLIAM KEITH DEPASS, IV; MARSHALL L

HARRIS; MANUEL C TRELLES; WILLIAM B COLEMAN, III; CAROL C

GAMBEL; WILLIAM C GAMBEL; RONALD LANDRY

Plaintiffs-Appellants

CLEVELAND COBB, SR; RENATE B COLEMAN; WILLIAM B COLEMAN,

JR; CAROL C DE LA HOUSSAYE; CLYDE DE LA HOUSSAYE; WAYNE DE

LA HOUSSAYE; PAULINE DIXON; LANIER DIXON; MARTHA W ELLIS;

COURTNEY FREEMAN; LOUIS MCDANIEL FREEMAN, JR; SHIRLEEN

JEFFERSON; IRENE B LUTKEWITTE; THOMAS LUTKEWITTE;

CHARLES MARSHALL, JR

Appellants

v.

PARISH OF JEFFERSON

Defendant-Appellee

Consolidated with

Case No. 08-30493

IN RE: KATRINA CANAL BREACHES LITIGATION

LESLIE SIMS, JR; ROSA MARQUEZ; FLOYD S AARON, III; HASSAR

SLEEM; MADELINE BERTUCCI; ET AL

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-30492

* 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.

2

Plaintiffs-Appellants

v.

PARISH OF JEFFERSON

Defendant-Appellee

Appeals from the United States District Court 

for the Eastern District of Louisiana 

USDC Nos. 2:06-CV-5127, 2:05-CV-4182

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This is a consolidated appeal of the district court’s dismissal of claims

against Jefferson Parish, Louisiana in two cases concerning property damage

from flooding that occurred as a result of the levee breaches in New Orleans

during Hurricane Katrina. The plaintiffs-appellants, property owners in

Jefferson Parish and Orleans Parish, allege that the property damage resulted

from deficiencies in the New Orleans flood protection system. In their original

complaints, filed on August 28, 2006, the plaintiffs-appellants named as

defendants the Board of Commissioners ofthe Orleans Levee District,the Board

of Commissioners of the Port of New Orleans, the Sewerage & Water Board of

New Orleans, the East Jefferson Levee District, Jefferson Parish, and the

Louisiana Department of Transportation and Development. In their second

amended complaints, filed on April 11, 2007, the plaintiffs-appellants added the

United States as a defendant. On October 12, 2007, the district court dismissed
No. 08-30492

1 The plaintiffs-appellants conceded this point due to the Louisiana Court of Appeal’s

recent unpublished opinion interpreting La. Rev. Stat. § 29:735, Chicago Property Interests,

L.L.C. v. Broussard, No. 08-C-1210 (La. Ct. App. March 6, 2009), which was decided after the

district court entered final judgment and briefs were filed in this appeal.

3

the claims against Jefferson Parish in both actions. On March 27, 2008, the

district court entered final judgments under Federal Rule of Civil Procedure

54(b) with regard to those claims, and the plaintiffs-appellants appealed. This

appeal solely concerns the plaintiffs-appellants’ claims against Jefferson Parish.

The plaintiffs-appellants’ claims against other defendants, including the United

States, are still pending in the district court.

The district court recognized two distinct categories of claims asserted by

the plaintiffs-appellants against Jefferson Parish: (1) claims based on actions

taken by the Parish during Hurricane Katrina; and (2) claims based on the

Parish’s alleged general failure to maintain certain levees and drainage features.

The district court dismissed the first category of claims because itfound that La.

Rev. Stat. § 29:735 granted immunity to the Parish for all actions taken at the

time of Hurricane Katrina. The district court dismissed the second category of

claims for two reasons. First, the district court held that La. Rev. Stat. § 9:2800

retroactively immunized public bodies from all damages arising from Hurricane

Katrina. Second, the district court held that the Parish was not under a duty to

maintain the levees under Louisiana state law. Both parties agree in their

briefing that the district court erred in holding that La. Rev. Stat. § 9:2800

insulated Jefferson Parish from liability, as the Louisiana Supreme Court has

held this statute unconstitutional as applied to claims accruing prior to the law’s

passage. See Burmaster v. Plaquemines Parish Gov’t, 982 So. 2d 795 (La. 2008).

Additionally, at oral argument, the plaintiffs-appellants conceded that La. Rev.

Stat. § 29:735 immunized Jefferson Parish against any claims relating to its

actions taken during Hurricane Katrina.1 Thus, the parties’ only remaining
No. 08-30492

2 Dropping a dispensable party to perfect diversity jurisdiction is considered to be such

a “technical” or “formal” correction. See 3 James Wm. Moore et al., Moore’s Federal Practice

4

substantive dispute is over whether Jefferson Parish was under a general duty

to maintain the levees under Louisiana law.

However, we decline to reach the merits ofthis dispute because the district

court exercised subject matter jurisdiction over this case on improper grounds.

Although Jefferson Parish did not appeal the district court’s ruling on

jurisdiction, this panel must nonetheless consider whether federal subject

matter jurisdiction exists. See E.E.O.C. v. Agro Distrib., LLC, 555 F.3d 462, 467

(5th Cir. 2009) (“Although neither party raises the issue of subject matter

jurisdiction, this court must consider jurisdiction sua sponte.”). 

The district court exercised jurisdiction over the plaintiffs-appellants’

claims against Jefferson Parish on the basis of supplemental jurisdiction.

Specifically, the district court held that it had original jurisdiction over the

plaintiffs-appellants’ federal tort claims act claims against the United States

that were added in the second amended complaint, and thatthose claims and the

claims against Jefferson Parish arose out of a common nucleus of operative fact,

thus warranting the exercise of supplemental jurisdiction over the claims

against the Parish. However, the new claims against the United States added

in the second amended complaint cannot be relied upon to establish subject

matter jurisdiction because while a plaintiff may amend a complaint to cure

inadequate jurisdictional allegations, amendment may not create subject matter

jurisdiction when none exists. See 3 James Wm. Moore et al., Moore’s Federal

Practice § 15.14[3], at 15–34 (3d ed. 1999) (“Essentially, a plaintiff may correct

the complaint to show that jurisdiction does in fact exist; however, if there is no

federal jurisdiction, it may not be created by amendment.”). That is, an

amendment may remedy jurisdictional problems of the “technical” or “formal”

variety,2 but it may not “create an entirely new jurisdictional basis to provide
No. 08-30492

§ 15.14[3], at 15–36 (3d ed. 1999) (“A plaintiff may not amend the complaint to substitute a

new plaintiff in order to cure a lack of jurisdiction, because a plaintiff may not create

jurisdictionwhennone exists. A plaintiff may, however, drop dispensable parties, those parties

not needed to establish subject matter jurisdiction, in order to perfect diversity jurisdiction.”

(footnotes omitted)).

5

competence in a court which lacked authority over the case ab initio.” Falise v.

Am. Tobacco Co., 241 B.R. 63, 67 (E.D.N.Y. 1999) (Weinstein, J.). This court has

specifically held that an amendment may not remedy a jurisdictional defect by

asserting a cause of action to serve as a statutory basis for federal question

jurisdiction. See Whitmire v. Victus Ltd., 212 F.3d 885, 888 (5th Cir. 2000)

(citing Boelens v. Redman Homes, Inc., 759 F.2d 504, 512 (5th Cir. 1985) (holding

that because “the plaintiffs’ motion to amend seeks not to remedy technically

inadequate jurisdictional allegations, but rather to substitute new causes of

action over which there would be jurisdiction,” the motion must be denied

“[b]ecause § 1653 is limited to curing technical defects only”)); see also United

States v. U.S. Fid. & Guar. Co., 959 F. Supp. 345, 347 (E.D. La. 1996) (“[W]hen

a federal court lacks jurisdiction over the original complaint, as is the instant

situation, the Federal Rules of Procedure do not allow the addition of a new

party to create jurisdiction.”). Thus, supplemental jurisdiction based on the

plaintiffs-appellants’ federal tort claims act claims against the United States

does not provide a valid basis for subject matter jurisdiction over the plaintiffsappellants’ claims against the Parish. Although Jefferson Parish did not object

to the plaintiffs-appellants amending the complaint to add the federal tort

claims act claims, “[s]ubject matter jurisdiction can neither be conferred nor

destroyed by the parties’ agreement or waiver.” Buchner v. FDIC, 981 F.2d 816,

821 (5th Cir. 1993).

The plaintiffs-appellants asserted another basis for supplemental

jurisdiction over their claims against the Parish in the district court: a common

nucleus of operative fact with third-party beneficiary claims in the original
No. 08-30492

3

It appears that the district court has since dismissed those claims.

6

complaint based on Acts of Assurance that several defendants signed in favor of

the United States.3 Those third-party beneficiary claims as pleaded arise under

Louisiana state law, but the plaintiffs-appellants argued that they trigger

original subject matter jurisdiction because federal law controls the

interpretation ofthe underlying Acts of Assurance, specifically the hold harmless

provisions contained therein that were executed for the benefit of the United

States and which the plaintiffs-appellants argued should be interpreted to create

a duty to third parties. Federal law arguably does control the interpretation of

the Acts of Assurance because the federal government entered into them

pursuant to authority conferred by federal statute. See United States v.

Seckinger, 397 U.S. 203, 210 (1970) (“[F]ederal law controls the interpretation

of the contract. This conclusion results from the fact that the contract was

entered into pursuant to authority conferred by federal statute and, ultimately,

by the Constitution.” (citations omitted)). However, the mere presence of a

federal issue in a state cause of action is not sufficient to permit federal

jurisdiction; this court has held that the presence of such a federal issue is

sufficientto create federal jurisdiction only where: (1) resolving the federal issue

is necessary to resolution of the state-law claim; (2) the federal issue is actually

disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not

disturb the balance of federal and state judicial responsibilities. See Singh v.

Duane Morris LLP, 538 F.3d 334, 337–38 (5th Cir. 2008). Although the parties

did not raise the issue of whether the third-party beneficiary claims give rise to

federal jurisdiction on appeal, it was briefed in the district court, and we fail to

see any substantial federal question implicated in the third-party beneficiary

claims based on the hold harmless provisions in the Acts of Assurance. Further,

the plaintiffs-appellants failed to meettheir burden of demonstrating a common
No. 08-30492

4 The plaintiffs-appellants’ motion to supplement the record is denied as moot.

7

nucleus of operative fact between the third-party beneficiary claims and the

claims against Jefferson Parish, making only conclusory and unsupported

assertions to that effect. See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533

F.3d 321, 327 (5th Cir. 2008) (“The party seeking to assert federal jurisdiction

. . . has the burden of proving by a preponderance of the evidence that subject

matter jurisdiction exists.”). 

Accordingly, we VACATE the judgment ofthe district court and DISMISS

this suit for lack of jurisdiction.4