UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCES L. WAYMON FOX,

Plaintiff-Appellant,

v.

KATHY THOMASEEC, d/b/a Touch of

Grace Personal Home Care,

Owner/Director; WANDA SHEPHERD,

a/k/a Miss Smith, Kathy

Thomaseec's "SIC"; CARROL

WALTER WAYMON, Brother of

plaintiff; Uncle of Bill Waddell and

Rachell Waddell Addison; WILLIAM

No. 98-2800

ISAAC WADDELL, JR., a/k/a Bill,

Nephew of plaintiff; RACHEL ANN

WADDELL ADDISON, Niece of

plaintiff; MARGARET WADDELL, Wife

of William Waddell; LARRY NELSON,

Son of Margaret Waddell; SUSAN J.

HALL, Attorney at Law; DAVID

HALL, Husband and partner of

Attorney Susan Hall; CLINTON

WILBURN, Dr.,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Malcolm J. Howard, District Judge.

(CA-98-376-5-H)

Submitted: April 27, 1999

Decided: May 18, 1999

Before WIDENER and WILKINS, Circuit Judges, and

HALL, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

_________________________________________________________________

COUNSEL

Frances L. Waymon Fox, Appellant Pro Se. Steven Craig Lawrence,

ANDERSON, BROADFOOT, JOHNSON & PITTMAN, Fayetteville, North Carolina; Carmen J. Battle, Fayetteville, North Carolina;

Susan J. Hall, Fayetteville, North Carolina; David Hall, Fayetteville,

North Carolina; Mark E. Anderson, PATTERSON, DILTHEY,

CLAY & BRYSON, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Frances Fox appeals an order of the district court dismissing this

action for lack of subject matter jurisdiction. Fox filed her action

under 28 U.S.C.A. § 1332(a)(1) (West 1993 & Supp. 1998), asserting

diversity of citizenship. As Fox did not bear her burden of establishing complete diversity, we affirm the district court's order of dismissal. See Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 377

(1978) (statute requires complete diversity and is strictly construed).

Fox also appeals the district court's order granting defendants'

request for costs and attorney's fees under Fed. R. Civ. P. 54(d). An

award of costs to the prevailing party is appropriate under Fed. R.

Civ. P. 54(d)(1). Under Fed. R. Civ. P. 54(d)(2)(B), a party requesting

attorney's fees must specify the statute, rule, or other ground that entitles him to an award of the fees. The defendants in this case did not

so specify.

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Under the American Rule, each party bears the costs of its own

attorneys, and attorney's fees are generally not a recoverable cost of

litigation unless a statute or agreement provides otherwise. Key

Tronic Corp. v. United States, 511 U.S. 809, 814-15 (1994). In diversity cases, state law is ordinarily followed to determine whether fees

are recoverable. Culbertson v. Jno. McCall Coal Co., 495 F.2d 1403,

1405-06 (4th Cir. 1974). The general rule in North Carolina is that "a

successful litigant may not recover attorney's fees, whether as costs

or as an item of damages, unless such a recovery is expressly authorized by statute." Stillwell Enters., Inc. v. Interstate Equip. Co., 266

S.E.2d 812, 814 (N.C. 1980). As the defendants cited to no statutory

authority to support their request for attorney's fees, we hold that the

district court erred in granting the requested fees. Because the defendants' itemized costs appear to be mixed in with the fee charges, we

vacate the award and remand to the district court for further consideration of an appropriate award of costs. We deny the requests for sanctions against Fox on appeal. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED IN PART; VACATED AND REMANDED IN PART 

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