United States Court of Appeals

for the Fifth Circuit ____________ 

No. 24-20135

____________ 

Daniel Montes, Jr., 

Plaintiff—Appellant, 

versus

Bertha A. Tibbs, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:23-CV-1352

______________________________ 

Before Willett, Duncan, and Ramirez, Circuit Judges.

Per Curiam:*

In this breach-of-contract dispute, the appellant appeals the dismissal 

of his complaint for lack of subject-matter jurisdiction and his designation as 

a vexatious litigant. We AFFIRM the judgment as MODIFIED. 

I 

Daniel Montes, Jr., a citizen of Mexico, seeks damages for an alleged 

breach of an oral contract between his mother and several other family 

_____________________ 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED 

August 16, 2024

Lyle W. Cayce

Clerk

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2

members, all of whom are citizens of Texas, to share the costs of support for 

Montes’s grandmother. Montes alleges that the other family members 

stopped contributing to his grandmother’s support, which allegedly required 

Montes’s mother to pay the costs herself. This in turn reduced the money he 

stood to inherit. Montes asked his mother to assign the interest in her claim 

for breach of the agreement to him, and he filed this pro se lawsuit against his 

aunt, Bertha Tibbs, on April 7, 2023.

On June 2, 2023, Tibbs moved to dismiss the complaint for lack of 

subject-matter jurisdiction and designate Montes as a vexatious litigant. The 

district court found that although the parties appeared diverse on the face of 

the complaint under 28 U.S.C. § 1332(a), Montes’s citizenship was procured 

improperly under 28 U.S.C. § 1359, so diversity jurisdiction was absent. It 

also found that Montes was a vexatious litigant and barred him “from filing 

further pleadings or actions in the Southern District of Texas without the 

prior written permission of the Chief Judge of the United States District 

Court for the Southern District of Texas or his or her designee.”1 The district 

court entered final judgment on March 14, 2024, dismissing Montes’s claims 

with prejudice. Montes timely appealed. 

II

A

Although the district court found diversity jurisdiction lacking, we 

have jurisdiction to evaluate the district court’s determination, see Williams 

v. Homeland Ins. Co. of N.Y., 18 F.4th 806, 811 (5th Cir. 2021), which we 

review de novo, IFG Port Holdings, L.L.C. v. Lake Charles Harbor & Terminal 

_____________________

1 The district court noted that Montes had previously been labeled as a “vexatious 

litigant” in prior litigation with many of the same family members who were parties to the 

agreement to provide support for his grandmother.

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Dist., 82 F.4th 402, 408 (5th Cir. 2023). “The party seeking the federal 

forum, here [Montes], has the burden of establishing diversity jurisdiction.” 

SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n, 881 F.3d 933, 939 (5th Cir. 

2018). We conduct this analysis bearing in mind that “document[s] filed pro 

se[are] ‘to be liberally construed.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

B

The complaint asserts that Montes and Tibbs are citizens of Mexico 

and Texas, respectively. “Under 28 U.S.C. § 1332(a), diversity jurisdiction 

exists when there is complete diversity of citizenship among the parties and 

the amount in controversy exceeds $75,000.”2 Bynane v. Bank of N.Y. Mellon 

for CWMBS, Inc. Asset-Backed Certificates Series 2006-24, 866 F.3d 351, 355 

(5th Cir. 2017). Diversity of the parties exists where “the matter in 

controversy” is between “citizens of a State and citizens or subjects of a 

foreign state.” 28 U.S.C. § 1332(a)(2). Here, however, the district court 

determined that Montes improperly procured his citizenship to invoke 

diversity jurisdiction via the assignment of his mother’s claim. See id. § 1359.

Under § 1359, district courts have no jurisdiction over “civil action[s] 

in which any party, by assignment or otherwise, has been improperly or 

collusively made or joined to invoke” jurisdiction. “Section 1359 is designed 

to prevent the litigation of claims in federal court by suitors who by sham, 

pretense, or other fiction acquire a spurious status that would allow them to 

invoke the limited jurisdiction of the federal courts.” Nolan v. Boeing Co., 919 

F.2d 1058, 1067 (5th Cir. 1990); see id.(describing the statute’s purpose as 

“prevent[ing] the manipulation of jurisdictional facts where none existed 

before”). “In effect, Section 1359 closes the federal courthouse doors to 

_____________________

2 The parties do not contest that the amount-in-controversy requirement is met.

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controversies that properly should be litigated in state tribunals.” 13F 

Charles Alan Wright et al., Federal Practice and 

Practice § 3637 (3d ed.).

As the party invoking jurisdiction, Montes must demonstrate that he 

did not act improperly to procure diversity jurisdiction. In making its

determination, the district court considered six factors:

(1) whether there was nominal or no consideration involved in 

the assignment; (2) whether the assignee had any previous 

connection to the assigned claim; (3) whether there was a 

legitimate business reason for the assignment; (4) whether the 

timing of the assignment suggests it was merely an effort to 

secure federal diversity jurisdiction; (5) whether the assignor 

exercises any control over the conduct of the litigation; and (6) 

whether the assignor retains any interest in the action such as 

receiving a portion of the assignee’s recovery.

Hytken Fam. Ltd. v. Schaefer, 431 F. Supp. 2d 696, 699–700 (S.D. Tex. 

2006).3

Montes first contends that consideration was paid for the assignment. 

But the evidence he points to is the assignment itself, which only states that 

“other good and valuable consideration” was exchanged. This evidence does 

not permit an evaluation of whether the consideration was paid and, if so, 

whether it was nominal. Montes contends that the consideration was a 

_____________________

3 Montes contends that these factors constitute an incorrect legal standard. Other 

circuits consider additional (albeit functionally identical) factors. See, e.g., Branson Label, 

Inc. v. City of Branson, 793 F.3d 910, 916–17 (8th Cir. 2015) (eight factors); Nat’l Fitness 

Holdings, Inc. v. Grand View Corp. Ctr., LLC, 749 F.3d 1202, 1205–06 (10th Cir. 2014) 

(seven factors). Nevertheless, these factors are only a “helpful guide” in the § 1359 

analysis—they are a non-exhaustive list of considerations for answering the ultimate 

question of “whether an assignment of a legal claim functioned as part of a scheme to 

manufacture diversity jurisdiction.” See Branson Label, 793 F.3d at 916. We therefore need 

not determine at this time the “precise list of circumstances” to be considered. See id.

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$5,000 lump sum, but statements in a brief are not evidence. See D.A. ex rel. 

Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 457 (5th Cir. 2010) 

(“[A]rguments by counsel are not evidence.”). This factor weighs against 

jurisdiction.

Montes states that he was previously connected to the claim because 

(i) the agreement provided financial support for Montes’s grandmother; (ii) 

Montes’s “aunts and uncle” allegedly breached the agreement; and (iii) 

Montes’s inheritance was reduced due to the alleged breach. This contention 

hinges on Montes’s ability to recover for loss of inheritance, which Texas law 

does not recognize outside of wrongful-death actions. See Yowell v. Piper 

Aircraft Corp., 703 S.W.2d 630, 633 (Tex. 1986). Furthermore, Montes

alleges nothing in the complaint nor offers any evidence to show that he was 

an intended third-party beneficiary under the agreement. Because the record 

does not demonstrate a previous connection between Montes and the 

assigned claim, this factor weighs against jurisdiction.

Montes claims that his “purchase[]” of the assignment—“in hopes 

of a return on an investment”—is a legitimate business reason. That reason 

may be legitimate in other contexts, but it does not demonstrate why this 

factor should favor him. Montes explains only that he seeks to recover money 

he believes he is due, but he actually brings his mother’s claim via assignment. 

Hoping to recover money in a lawsuit is not a legitimate business reason 

justifying the assignment of a claim for § 1359 purposes. This factor weighs 

against jurisdiction.

Montes argues that the timing of the assignment is not cause for 

concern because he moved to Mexico three years before the assignment was 

executed, and he filed the action in district court within four months of the 

execution. The timing of Montes’s move to Mexico is not relevant, as this 

factor concerns the timing of the assignment in relation to when the case was 

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filed. The record demonstrates that when Montes learned that the 

inheritance he expected had been depleted, he “immediately asked” his 

mother “to assign him the entire debt owed her [sic], and he then 

immediately filed this federal civil action.” As Montes’s sworn words 

demonstrate, the assignment was executed so he could bring this lawsuit. 

This factor therefore weighs against jurisdiction.

According to Montes, his mother “has no control nor influence over 

the conduct of” the litigation and “is only a material eyewitness to the facts 

regarding the terms of the Assignment.” At best, this factor is neutral given 

the absence of evidence supporting his contention.

Montes contends that his mother “has no interest nor shall receive 

any recovery if [he] happens to prevail and recover any damages.” As with 

the previous factor, this contention makes this factor neutral at best 

considering the absence of supporting evidence.

* * *

Four factors ultimately weigh against jurisdiction, and two factors—

viewed in the light most favorable to Montes—are neutral. Considering them 

together, Montes has not met his burden to show that the assignment was not 

executed to create diversity jurisdiction. Accordingly, the district court

correctly determined diversity jurisdiction is lacking, and the action must be 

dismissed. But because the district court’s dismissal order was based on a 

lack of subject-matter jurisdiction, we modify the judgment to dismiss without

prejudice. See Abdullah v. Paxton, 65 F.4th 204, 208 n.3 (5th Cir. 2023) (per 

curiam) (“[D]ismissals based on jurisdictional issues must, by their very 

nature, be without prejudice.”).

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III

A

The district court’s order preventing Montes from filing further 

pleadings or actions is an injunction. See Baum v. Blue Moon Ventures, LLC, 

513 F.3d 181, 187 (5th Cir. 2008). We review the grant of an injunction for 

“abuse of discretion, and underlying questions of law de novo.” Newby v. 

Enron Corp., 302 F.3d 295, 301 (5th Cir. 2002).4

B

District courts have jurisdiction to issue “pre-filing injunction[s] to 

deter vexatious, abusive, and harassing litigation.” Baum, 513 F.3d at 187; see

Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980) (per curiam) (“A 

litigious plaintiff pressing a frivolous claim, though rarely succeeding on the 

merits, can be extremely costly to the defendant and can waste an inordinate 

amount of court time.”). “Such injunctions must be tailored to protect the 

courts and innocent parties while also protecting the right of the enjoined 

party to file non-frivolous lawsuits.” Nix v. Major League Baseball, 62 F.4th 

920, 937 (5th Cir. 2023). “When considering whether to enjoin future filings, 

the court must consider the circumstances of the case,” which involves four 

factors: (1) the party’s history of litigation; (2) the party’s basis for filing the 

lawsuit in question; (3) the burden on the courts and others involved resulting 

_____________________

4 Although the district court determined it did not have subject-matter jurisdiction 

over this action before designating Montes as a vexatious litigant, it was jurisdictionally 

proper for the district court to consider the issues in this sequence. See Qureshi v. United 

States, 600 F.3d 523, 525 (5th Cir. 2010) (“That the court loses jurisdiction over the 

litigation does not, however, deprive the district court of its inherent supervisory powers. 

After the termination of an action, a court may nevertheless ‘consider collateral issues.’”

(quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990))).

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from the party’s filings; and (4) the adequacy of alternative sanctions. Carroll 

v. Abide (In re Carroll), 850 F.3d 811, 815 (5th Cir. 2017) (per curiam).

Montes discusses these factors in his briefing, but he does not support 

his arguments with citations to legal authority or the record on appeal. 

“Although we liberally construe pro se briefs, such litigants must still brief the 

issues and reasonably comply with the standards of Rule 28 in order to 

preserve them.” Clark v. Waters, 407 F. App’x 794, 796 (5th Cir. 2011) (per 

curiam); see Arredondo v. Univ. of Tex. Med. Branch at Galveston, 950 F.3d 

294, 298 (5th Cir. 2020) (“[P]arties filing appeals in this court, including 

those filing pro se, must adhere to the requirements of the Federal Rules of 

Appellate Procedure.”). In his brief, Montes needed to support his 

“contentions and the reasons for them” with “citations to the authorities 

and parts of the record,” Fed. R. App. P. 28(a)(8)(A), but he did not. 

Failure to do so constitutes forfeiture, and we do not address the issue. See

Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 751 (5th Cir. 2023).

IV

For these reasons, we MODIFY the judgment so the dismissal for 

lack of subject-matter jurisdiction is without prejudice and AFFIRM the 

judgment as modified.

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