___________

No. 96-2383

___________

Jimmy Lee Walker, III, by his *

legal guardian Cynthia M. *

Walker; *

*

Plaintiff - Appellant, *

*

Cynthia M. Walker; James *

Harrison Massey, *

*

Appellants, *

*

v. *

*

Norwest Corporation, a *

Minnesota Corporation and *

Fiduciary of Jimmy Lee Walker, *

III; Norwest Bank, South *

Dakota; Norwest Investment * Appeal from the United States

Management & Trust, a Sioux * District Court for the 

Falls, South Dakota, based * District of South Dakota.

subsidiary of Norwest *

Corporation and as Fiduciary *

of Jimmy Lee Walker, III; *

Richard Kovacevich, *

individually and as Chief *

Executive Officer of Norwest *

Corporation, and Fiduciary of *

Jimmy Lee Walker, III; Gary *

Olson, individually, and as *

President, Chairman, and Chief *

Executive Officers of Norwest *

Bank South Dakota, N.A., *

Regional Office, and as *

Fiduciary of Jimmy Lee Walker, *

III; Kirk Dean, individually, *

and as President of Norwest *

Bank South Dakota, N.A., Rapid *

City location and as Fiduciary *

of Jimmy Lee Walker, III; *

Dennis Hoffman, individually *

and as President of Norwest *

Investment Management & Trust, *

and Fiduciary of Jimmy Lee *

Walker, III; Tom Naasz, *

individually, and as Vice *

President of Norwest Investment *
 The Honorable Richard H. Battey, Chief Judge, United States

District Court for the District of South Dakota.

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Management & Trust; and as *

Fiduciary of Jimmy Lee Walker, *

III; and as Co-Trustee and *

Fiduciary of Jimmy Lee Walker, *

III; Beal Law Offices, as a law *

firm, partnership, corporation, *

or other public or private *

entity, and Fiduciary of Jimmy *

Lee Walker, III; George Beal, *

individually, and as partner, *

owner, employee, agent, *

authorized representative, or *

other of Beal Law Offices; as *

officer, attorney, agent, *

employee, authorized *

representative or other of *

Norwest Bank South Dakota N.A.; *

Norwest Investment Management & *

Trust; and Norwest Corporation; *

and as attorney, agent *

Fiduciary of Jimmy Lee Walker, *

III, *

*

Defendants - Appellees. *

___________

 Submitted: December 9, 1996

 Filed: February 28, 1997

___________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Jimmy Lee Walker, III, his guardian, Cynthia Walker, and their

attorney, James Harrison Massey, appeal from the district court's award

1

of sanctions against Massey for filing a diversity case in which he failed

to plead complete diversity of citizenship, and indeed, pleaded facts which

tended to show there was not complete
 The defendants are: Norwest Corporation, Richard Kovacevich,

Norwest Bank South Dakota, N.A., Gary Olson, Kirk Dean, Norwest

Investment Management & Trust, Dennis Hoffman, Tom Naasz, Beal Law

Offices, and George Beal. The individual defendants were sued

individually and as trustees or corporate agents. 

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diversity. The Walkers and Massey contend that the district court erred

in awarding sanctions at all, in determining the amount of sanctions, and

in not allowing the Walkers to amend their complaint. We affirm.

 Massey filed a complaint in the district court for the District of

South Dakota on behalf of the Walkers, alleging breach of fiduciary duty

and other state law causes of action in connection with the administration

of a trust fund held for Jimmy Lee Walker at Norwest Bank South Dakota,

N.A. The complaint stated that jurisdiction was based on diversity, since

"the Plaintiff and some of the Defendants are citizens of different

states." (Emphasis added). The Walkers are both South Dakotans. The

complaint averred that one of the defendants, Norwest Corporation, was a

Minnesota corporation. The complaint did not allege the other defendants'2

citizenship precisely, but stated that many of them were South Dakota

"residents." The individual defendants included employees of Norwest or

its subsidiary corporations and a South Dakota lawyer who represented

Norwest. The corporate defendants were Norwest subsidiaries. The Walkers

also joined a South Dakota law firm that represented Norwest. All the

individuals were named in their individual, as well as official,

capacities. 

Upon receiving the complaint, the attorney for Norwest Corporation

and its subsidiaries and officers wrote Mr. Massey informing him that his

complaint showed on its face that there was no diversity jurisdiction. The

letter asked Massey to dismiss the complaint, and warned that if he did

not, Norwest would seek sanctions, including attorneys' fees. Massey's

only answer was a
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letter that acknowledged Norwest's correspondence, but made no substantive

response to the deficiency counsel had pointed out. 

After Massey failed to offer any explanation for his defective

complaint or to move to amend or dismiss it, Norwest moved to dismiss and

for an award of sanctions, as it had promised to do. Massey filed a

response contending that the complaint was adequate as filed. In the

alternative, the response stated that if the complaint was not adequate,

plaintiffs would amend it; however, the plaintiffs did not specify how they

proposed to amend the complaint. Under Local Rule 15.1 of the District of

South Dakota, a party moving to amend his pleadings must file a copy of the

proposed amended pleading with his motion. Massey filed no proposed

amended pleading.

With his response to the motion to dismiss, Massey filed a brief

presenting a theory that the citizenship of Norwest Corporation determined

the citizenship of all the other defendants, notwithstanding that all the

individual defendants were named in their individual capacities. The brief

contended that the complaint therefore successfully alleged diversity

jurisdiction: "This life-sustaining arterial linkage between these said

Defendants and Norwest Corporation in essence and in reality creates an

indistinguishable and inseparable unity of existence and identity." 

The district court granted the Fed. R. Civ. P. 12(b)(1) motion to

dismiss for lack of jurisdiction and sanctioned attorney Massey under Fed.

R. Civ. P. 11. Order of January 9, 1996. The court held that there was

no diversity jurisdiction because there was not complete diversity among

plaintiffs and defendants, since plaintiffs were South Dakotans and

numerous defendants were alleged to be South Dakota "residents." The court

ordered the defendants to file an accounting of their fees and expenses

incurred in defending against the suit.
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The Walkers then filed a motion for reconsideration which stated:

Other Defendants [in addition to Norwest Corporation, its

subsidiaries, and Kovacevich] named to Plaintiff's Complaint,

may or may not be citizens of the State of South Dakota. It is

Plaintiff's position that with regard to the issue of federal

jurisdiction, this fact alone should not be determinative in

this case. 

(Emphasis added). The court denied the motion for reconsideration. Order

of January 22, 1996.

As the district court had ordered, the defendants filed statements

of their fees and expenses, in the form of affidavits with attached

itemizations of work performed and costs incurred. One law firm represented

Norwest Corporation, its subsidiaries, and the individuals who worked for

Norwest and its subsidiaries. That firm had $2,794.52 in fees and

expenses. Another firm represented the lawyer, George Beal, and his law

firm. That firm had $2,050.75 in fees and expenses. 

Massey responded to the affidavits in a filing characterizing the

defendants' statements of expenses as "so shamefully over-exaggerated and

over-inflated so as to shock the conscience of ethical minded legal

practitioners." 

The court held a hearing on the fees issue, and Massey declined to

cross-examine the attorneys or to put on any evidence. The court ordered

Massey to pay the two sets of defendants the full amount each had

requested, $2,794.52 and $2,050.75, respectively. Order of May 6, 1996.

The Walkers and Massey appeal.
 "For purposes of diversity jurisdiction, the terms 'domicile' 3

and 'citizenship' are synonymous." Sheehan v. Gustafson, 967 F.2d

1214, 1215 (8th Cir. 1992) (quoting Yeldell v. Tutt, 913 F.2d 533,

537 (8th Cir. 1990)).

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I.

They first argue that the district court abused its discretion in

determining that Massey had filed a complaint that was not warranted by

existing law or a nonfrivolous argument for the extension, modification,

or reversal of existing law or the establishment of new law. They contend

that their allegations that the defendants were South Dakota residents were

not determinative of the defendants' citizenship, since they could be

living in South Dakota without intent to stay there. See Sheehan v.

Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992). They contend that Rule 11

does not require the kind of "complicated, in-depth, and possibly

impossible inquiry" that would have been necessary to determine the

defendants' citizenship before filing a complaint based on diversity of

citizenship.

We review the district court's decision in a Rule 11 proceeding for

abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-

405 (1990). A district court necessarily abuses its discretion if it bases

its ruling on an erroneous view of the law. Id. at 405.

 It was the Walkers' burden to plead the citizenship of the parties

in attempting to invoke diversity jurisdiction. See Sanders v. Clemco

Indus., 823 F.2d 214, 216 (8th Cir. 1987). They failed to carry that

burden, since they did not allege the domicile of the individual

3

defendants or the place of incorporation and principal place of business

of all the corporate defendants. See id.
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However, the district court construed the allegation that the

individuals were South Dakota residents as an admission that they were

domiciled in South Dakota. The Walkers and Massey did not complain of this

inference or argue in the district court that the defendants alleged to

reside in South Dakota did not intend to remain there indefinitely.

Instead, they responded to the motion to dismiss with an unelaborated

statement that their complaint "as filed, does state appropriate grounds

for federal jurisdiction." In their motion for reconsideration of the

court's order, they stated that it was immaterial whether some of the

defendants were South Dakota citizens, as long as some defendants were

citizens of another state. It is, to say the least, well settled that

federal diversity jurisdiction requires complete diversity, so that no

defendant is a citizen of the same state as any plaintiff. See Strawbridge

v. Curtiss, 7 U.S. 267 (1806); Owen Equip. & Erection Co. v. Kroger, 437

U.S. 365, 373-74 (1978). Having pursued this untenable theory before the

district court, the Walkers and Massey cannot change their theory on appeal

and fault the district court for deciding the case on the theory they

presented to it. 

Furthermore, even though it is the Walkers' burden to plead, and if

necessary, prove diversity, Sheehan, 967 F.2d at 1215, they did not allege

that all of the defendants are domiciled in a state other than South

Dakota. Instead, they argue that finding out the defendants' citizenship

would be more trouble than they should be expected to take. This is a

burden that plaintiffs desiring to invoke diversity jurisdiction have

assumed since the days of Chief Justice Marshall. See Strawbridge v.

Curtiss, 7 U.S. at 267. The fact that the Walkers did not allege the

citizenship of the defendants convinces us that the district court did not

abuse its discretion in determining that Rule 11 sanctions were

appropriate. 

II.

The Walkers and Massey next contend that the district court
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abused its discretion in awarding monetary sanctions, since dismissal of

the complaint would have been adequate. They argue that the award of

monetary sanctions in this case would discourage "novel legal arguments."

Their legal argument in the district court was contrary to the established

statutory requirements for diversity. See 28 U.S.C. § 1332(a)(1) (1994).

They also argue that the district court should have inquired into Massey's

financial circumstances, and that if it had done so, it would have found

that he "is presently experiencing financial hardships and is unable to pay

this sanction." Not only did Massey fail to argue this point to the

district court, but there is no record evidence to support the argument

before this court. Finally, they argue that the defendants have no need

for compensation for their fees and expenses, since they are "multibillion/million dollar defendants." There is no record evidence of the

defendants' financial condition, but there is evidence that they incurred

fees and expenses because of the Walkers' lawsuit. We see no abuse of

discretion in awarding monetary sanctions.

III.

The Walkers and Massey contend that the district court abused its

discretion in denying their request to amend their complaint. Although the

Walkers did ask for leave to amend their complaint in their response to the

motion to dismiss, they did not comply with the local rule requiring them

to file a copy of the proposed pleading. Nor did they give any hint of how

they wished to change their complaint. They did not indicate a desire to

dismiss any of the defendants before the district court dismissed their

complaint. The district court has no obligation to dismiss non-diverse

defendants sua sponte. See Vild v. Visconsi, 956 F.2d 560, 570 (6th Cir.),

cert. denied, 506 U. S. 832 (1992). After the dismissal and denial of the

motion to reconsider, the district court held a hearing on the amount of

attorneys' fees to be awarded. At that hearing, Massey began to reargue

the merits of
 Although it is possible for this court to dismiss nondiverse

parties on appeal, see Newman-Green, Inc. v. Alfonzo-Larrain, 490

U.S. 826, 836-37 (1989), the Walkers have not asked us to do so and

therefore the issue has not been briefed.

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the dismissal. The court stated that some of the individual defendants

were South Dakota residents. Mr. Massey replied: "I think an appropriate

step for the Court to have taken would have been to dismiss those

individuals that the Court considered that it could not bring into the

diversity statute through pendent jurisdiction which is within the

discretion of the Court." Massey still had not alleged a citizenship for

many of the defendants and did not identify which defendants should be

dismissed to create diversity jurisdiction. The district court is not

obliged to do Massey's research for him, especially at such a late date.4

There was no abuse of discretion.

IV.

The Walkers and Massey argue that the district court erred in not

requiring defendants' counsel to put on further evidence in support of

their accountings after Massey objected to them. The accountings were

fully supported by evidence in the form of affidavits and itemized

statements. The district court held a hearing on the fees issue, and

Massey elected not to cross-examine defendants' counsel. The district

court's order was supported by adequate evidence. 

V.

The Walkers and Massey argue that the district court erred in

awarding the full amount of fees and expenses defendants requested, since

the defendants' counsel did more work than was justified. Massey was

persistent in filing baseless and uninformed pleadings, motion papers, and

briefs, which drove up the defendants' fees. The district court did not

abuse its discretion in entering
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sanctions for the full amount of expenses and fees claimed.

VI.

Finally, we must rule on the appellees' motions to strike portions

of Massey's and the Walkers' brief. The brief does contain extended

narrative pertaining to matters outside the record and irrelevant to any

issues on appeal before this court. We therefore grant the appellees'

motion to strike from the appellants' brief factual assertions not

accompanied by citations to the record, including the entirety of the

sections titled "Relevant History of James Harrison Massey" and "History

of the Case Before the District Court."

We affirm the district court's entry of Rule 11 sanctions in the

amounts provided.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.