*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this opinion should not be published and is not precedent except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. 99-31409

Summary Calendar

_____________________

DITMAR HOSPITAL,

Plaintiff-Appellant,

versus

HARTFORD INSURANCE COMPANY OF

THE MIDWEST; ET AL.,

Defendants,

SEARS ROEBUCK & COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana, New Orleans

USDC No. 98-CV-3215-B

_________________________________________________________________

November 9, 2000

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

The case is an appeal of the district court’s grant of summary

judgment for Sears Roebuck and Company in a products liability

suit. The district court found that Ditmar Hospital did not

produce sufficient evidence of liability, and therefore dismissed
2

the case against Sears. At the time the suit was filed in federal

court, however, complete diversity did not exist between the

parties. Thus, Hospital appeals the merits of the dismissal of

summary judgment, and contends that the federal courts do not have

jurisdiction over this suit. Because we find that the

jurisdictional defect was cured, and the district court properly

granted summary judgment, we affirm.

I

On May 10, 1998, Ditmar Hospital fell off a stepladder while

performing work for his employer, Cox Communications New Orleans,

Inc., in the house of Andrew A. Landry. Hospital used Landry’s

aluminum stepladder, purchased from Sears five or six years

earlier, to reach a connection in the attic. At the time, one of

the ladder’s rubber footings was missing. After climbing and

descending the ladder several times, Hospital fell from the third

rung and was injured.

On November 2, 1998, Hospital, a resident alien residing in

Louisiana, brought this products liability suit in federal district

court against Sears, a non-Louisiana resident, under the Louisiana

Products Liability Act, La. Rev. Stat. Ann. § 9:2800. The suit

also included claims against Landry and Landry’s insurance company,

both Louisiana residents. Hospital premised federal jurisdiction

on 28 U.S.C. § 1332, claiming diversity as a citizen of Uzbekistan.
3

On July 19, 1999, Sears moved for summary judgment, arguing

that the ladder was not unreasonably dangerous by way of

construction, composition or design, had no inadequate warnings and

no express warranty that had been breached. The district court

granted summary judgment for Sears on each of the products

liability claims on August 19, 1999. 

After the grant of summary judgment to Sears, the case

proceeded against the remaining plaintiffs. On September 22, 1999,

Hospital settled his claims against both Landry and Landry’s

insurance company, Hartford Insurance Company of the Midwest. On

the same day, the district court rendered a Rule 54(b) motion in

favor of Sears, dismissing, with prejudice, all of Hospital’s

claims against Sears. 

On October 6, 1999, Hospital moved for a new trial, which the

court interpreted as a motion to reconsider summary judgment and

denied on November 12, 1999. On November 8, 1999, Hospital filed

a motion to dismiss based on a lack of subject matter jurisdiction.

The court entered a final judgment on November 16, 1999. The court

denied the motion to dismiss as moot on December 8, 1999, because

no further claims remained for dismissal. Hospital appeals from

the final judgment entered on November 16, 1999, and from the order

denying the motion to dismiss as moot.
4

 Following these proceedings, on January 28, 2000, the plaintiff

refiled his suit against Sears in Louisiana state court. Sears

removed the suit to the district court based on diversity

jurisdiction. Thus, the determination in this case may effectively

resolve the second, identical case.

II

Diversity jurisdiction under 28 U.S.C. § 1332(a) “applies only

to cases in which the citizenship of each plaintiff is different

than the citizenship of each defendant.” Caterpillar v. Lewis, 519

U.S. 61, 68, 117 S.Ct. 467, 472 (1996). As a resident alien,

Hospital should have been considered a resident of Louisiana for

the purposes of § 1332 diversity jurisdiction. 28 U.S.C. § 1332(a)

(“For the purposes of this section . . . an alien admitted to the

United States for permanent residence shall be deemed a citizen of

the State in which such alien is domiciled.”). Because both Landry

and Hartford Insurance, who settled with Hospital on September 22,

1999, were also Louisiana residents, the case as filed contained a

jurisdictional defect. 

Federal jurisdiction generally depends on the facts that exist

when the case is filed. See Newman-Green, Inc. v. Alfonzo-Larrain,

490 U.S. 826, 830, 109 S.Ct. 2218, 2222 (1989). It is well

settled, however, that jurisdictional defects can be cured.

Federal Rule of Civil Procedure 21, for instance, allows district
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courts to dismiss dispensable nondiverse parties to perfect

jurisdiction. Newman-Green, 490 U.S. at 832. The Supreme Court

has recognized that parties “should not be compelled to jump

through these judicial hoops merely for the sake of hypertechnical

jurisdictional purity.” Id. at 837. Similarly, the Supreme

Court has found that the absence of complete diversity at the time

of removal is not fatal to federal court adjudication, as long as

federal jurisdiction requirements are met at the time the judgment

is entered. Caterpillar, 519 U.S. at 64. Thus, as long as the

jurisdictional defect is cured by the time of judgment, the

district court’s judgment is valid.

Here, although there was a lack of complete diversity when the

case was filed, and therefore no jurisdiction, the settlement of

the nondiverse parties cured the jurisdictional defect before the

final judgment was entered. Hospital settled with Landry and

Hartford on September 22, 1999. Hospital filed his motion to

reconsider entry of summary judgment on October 6, 1999, and filed

his motion to dismiss for lack of subject matter jurisdiction on

November 8, 1999. The court issued its final judgment on

November 16, 1999. Thus, because the jurisdictional defect was

cured before the court’s final judgment, the district court had

jurisdiction to deny the motion for a new trial and issue a final

judgment. After the final judgment was entered, the court
6

correctly determined that the motion to dismiss for lack of subject

matter jurisdiction was moot. 

III

Hospital sought damages from Sears on all four theories of

products liability under the Louisiana Products Liability Act

(“LPLA”): defective construction or manufacturing, defective

design, failure to warn and breach of express warranty. See La.

Rev. Stat. Ann. § 9:2800.55-2800.58; Pickett v. RTS Helicopter, 128

F.3d 925, 928 (5th Cir. 1997). In granting summary judgment, the

district court determined that Hospital had failed to produce

sufficient evidence for any of the products liability claims.

We review the district court’s grant of summary judgment de

novo. Transitional Learning Community at Galveston, Inc. v. United

States Office of Personnel Management, 220 F.3d 427, 429 (5th Cir.

2000). "Summary judgment is appropriate when the evidence, viewed

in the light most favorable to the nonmoving party, presents no

genuine issue of material fact and shows that the moving party is

entitled to judgment as a matter of law." Kapche v. City of San

Antonio, 176 F.3d 840, 842 (5th Cir. 1999)(citing River Prod. Co.,

Inc. v. Baker Hughes Prod. Tools, Inc., 98 F.3d 857, 859 (5th Cir.

1996)(in turn citing Fed.R.Civ.P. 56(c))).

First, for a claim of defective manufacturing or construction,

Hospital must prove that the product “deviated in a material way
7

from the manufacturer’s specifications or performance standards for

the product or from otherwise identical products manufactured by

the same manufacturer” at the “time the product left its

manufacturer’s control.” La. Rev. Stat. § 9:2800.55. Hospital

failed to produce any evidence showing that the ladder failed to

meet the manufacturer’s specifications at the time it left the

manufacturer’s control. In fact, Landry’s testimony indicates

that, at the time of purchase, the ladder had all its rubber

footings. Because Hospital had the burden of proving that the

specifications were not met, we agree with the district court’s

determination that Sears was entitled to summary judgment on the

defective composition or construction claim. 

Second, Hospital’s defective design claim requires him to

prove that “(1) [t]here existed an alternative design for the

product that was capable of preventing the claimant’s damages”; and

“(2) [t]he likelihood that the product’s design would cause the

claimant’s damage and the gravity of that damage outweighed the

burden on the manufacturer of adopting such alternative design.”

La. Rev. Stat. Ann. § 9:2800.56. Hospital did not retain an expert

or present technical evidence of an alternative design for the

stepladder that would have prevented his injuries. Showing that

injury resulted from a product is not sufficient to avoid summary

judgment under the LPLA. Theriot v. Danek Medical, Inc., 168 F.3d
8

253, 256 (5th Cir. 1999). Thus, we find that the district court

properly found that Hospital failed to introduce evidence

supporting the existence of a design defect. 

Third, Hospital claims that the stepladder was unreasonably

dangerous because it contained an inadequate warning. La. Rev.

Stat. Ann. § 9:2800.57. A warning is not required, however, if

“[t]he product is not dangerous to an extent beyond that which

would be contemplated by the ordinary user or handler of the

product.” Id. The ladder was labeled with setup, climbing and use

instructions. Hospital failed to identify what warning should have

been made, and how the product was dangerous to an extent beyond

that contemplated by an ordinary user. Thus, the district court

properly granted summary judgment on Hospital’s failure to warn

claims. 

Fourth, a finding that a product is unreasonably dangerous

because of a noncomformity with an express warranty requires an

express warranty by the manufacturer that induced the claimant to

use the product. La. Rev. Stat. § 9:2800.58. Hospital failed to

identify any express warranty breached by Sears. The district

court therefore correctly granted summary judgment on the breach of

express warranty claim.
9

IV

Because we find that the district court had jurisdiction to

enter its final judgment and that it correctly granted summary

judgment for Sears, the district court’s judgment is 

A F F I R M E D.