*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this opinion should not be published and is not precedent except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. 97-30820

Summary Calendar

_____________________

BARBARA KING,

Plaintiff,

versus

GERRY D. BYRNE,

Defendant - Third Party Plaintiff-Appellee,

FERMIN M. FRANCINETTI RIVAS,

Third Party Defendant-Appellant.

________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

USDC No. 95-CV-2044

_________________________________________________________________

July 27, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

After reading the briefs and reviewing the record, we have

arrived at the conclusion that the district court’s judgment should

be affirmed. There is no question that federal jurisdiction over

Byrne’s third party suit against Rivas existed initially under 28

U.S.C. § 1367, inasmuch as this actions was directly related to

King’s action against Byrne. After settling the case with King,
 

1Indeed, after a bench trial, the district court ultimately

awarded Byrne a judgment of over $52,000.

 

2Byrne argues that Rivas failed to raise the applicability of

Puerto Rican law below and, therefore, waived the issue. Because

Rivas argued in a motion for summary judgment (three days before

trial) that the laws of Puerto Rico applied, we presume he made a

sufficient showing in this regard.

2

Byrne amended his complaint against Rivas to allege jurisdiction

based on diversity of citizenship under 28 U.S.C. § 1332. Byrne

further alleged that the amount in controversy exceeded the

jurisdictional minimum of $50,000. We cannot say that Byrne’s

allegation in this respect was made in bad faith or that his claim

appeared, “to a legal certainty,” to be for less than the

jurisdictional amount. See de Aguilar v. Boeing Co., 47 F.3d 1404,

1409 (5th Cir. 1995).1

Nor can we say that the district court abused its discretion

in denying Rivas’s motion to dismiss for improper venue. Prior to

filing the motion, Rivas had filed other motions to dismiss and for

summary judgment. Because he failed to raise improper venue in

these earlier motions, he was precluded by Fed. R. Civ. P. 12(g)

from raising it in a subsequent motion. See Albany Ins. Co. v.

Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir. 1993).

Finally, the district court did not err by failing to apply

Puerto Rican law in this case.2 Rivas argues that, under Puerto

Rican law, he established an “extinctive novation” that relieved

him of all obligations to Byrne and the partnership. We disagree.
3

Assuming the laws of Puerto Rico apply, an extinctive novation

requires that the parties to the previous agreement expressly state

their intent to terminate the old agreement or that they enter into

a new agreement incompatible with the old agreement. See Nieves

Domenech v. Dymax Corp., 952 F.Supp. 57, 62 (D.P.R. 1996). “It

must be established ‘without any trace of doubt.’” Id. (citation

omitted).

Rivas’s evidence does not meet this burden. It is undisputed

that Byrne and Rivas had entered into a partnership with a third

individual, Paulick. Later, in February 1995, Rivas and Paulick

entered a separate agreement stating that Rivas had sold to Paulick

“all his rights, obligations and assets and/or the businesses

[subject to the partnership agreement].” Although Rivas argues

otherwise, this agreement does not create an extinctive novation.

Given that Rivas and Paulick were the only parties to the

agreement, we must conclude that it extinguished only Rivas’s

obligations to Paulick. Under these circumstances, even if Byrne

had notice of the agreement and acquiesced in it, we must presume

the agreement at most relieved Rivas of his future obligations

under the partnership, but certainly not his past obligations. In

short, Rivas has not produced evidence that shows Byrne’s intent

beyond doubt to extinguish Rivas’s obligations to him. Thus, even
4

if Puerto Rican law applies to this case, Rivas is not entitled to

relief.

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.