* 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that this opinion should not be published and is not precedent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.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-50324

(Summary Calendar)

_________________

GEOFFREY E ROHDE,

Plaintiff-Appellant,

versus

RIPPY SURVEYING COMPANY; C P RIPPY, President;

CLINTON LAMONT RIPPY; VERNON HILTON KIRBY,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas

(A-97-CV-14)

November 19, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The plaintiff, Geoffrey Rohde, appeals the district court’s

dismissal of his employment discrimination claim brought under

Title VII of the 1964 Civil Rights Act. 42 U.S.C. §§ 2000e to

2000e-17. Rohde appeals only that portion of the district court’s

judgment dismissing his claim against Rippy Surveying Company, the
 

1 Instead, the referenced exhibits were attached to a

complaint in an earlier proceeding that had been dismissed for

failure to exhaust administrative remedies and that was before a

-2-

corporate defendant; he does not appeal the district court’s

dismissal against the individual defendants.

The district court dismissed Rohde’s claim against Rippy

Surveying Company under FED. R. CIV. P. 12(b)(1) because Rohde

failed to produce competent evidence that Rippy Surveying Company

had at least 15 employees))a necessary requirement for subject

matter jurisdiction in a Title VII claim. The only evidence before

the district court relating to its subject matter jurisdiction

consisted of affidavits submitted by the defendants with their

motion to dismiss, attesting to the fact that Rippy Surveying

Company employed fewer than 15 employees.

In Rohde’s response to the defendants’ motion to dismiss, he

did not dispute that Rippy Surveying Company had less than 15

employees; he claimed instead that Rippy Surveying Company and

several other companies should be considered a “single entity” for

Title VII purposes. See Trevino v. Celanese Corp., 701 F.2d 397,

403-04 (5th Cir. 1983) (setting forth a four-part test for deciding

when different companies should be considered a “single integrated

enterprise” under Title VII). In his motion, Rohde discussed and

made reference to several exhibits and affidavits that allegedly

supported his “single entity” theory. He incorrectly assumed that

those exhibits were in the record, and he did not attach them to

his motion or in any way put them before the district court in this

action.1 Consequently, on the evidence before it, the district
different judge. The district court correctly concluded that the

exhibits were not in the record and not properly before the court.

FED. R. CIV. P. 8, 10. Moreover, although Rohde reattached his

original exhibits to his brief on appeal, they are not part of the

record on appeal and we cannot consider them. See FED. R. APP. P.

10(a); Topalian v. Ehrman, 954 F.2d 1125, 1132 & n.10 (5th Cir.

1992); Munoz v. International Alliance of Theatrical Stage

Employees and Moving Picture Mach. Operators, 563 F.2d 205, 209

(5th Cir. 1977).

 

2 While the district court did not explicitly state that

the dismissal was without prejudice, a dismissal under FED. R. CIV.

P. 12(b)(1) is not a decision on the merits, and in this case,

permits the plaintiff to pursue his claim in the same or another

forum if he can establish the facts that give the court subject

matter jurisdiction. See Hitt v. City of Pasadena, 561 F.2d 606,

608 (5th Cir. 1977); 5A CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1350 at 225 (2d ed. 1990); see also Williamson

v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981) (“Insofar as the

defendant’s motion to dismiss raises factual issues, the plaintiff

should have an opportunity to develop and argue the facts in a

manner that is adequate in the context of the disputed issues and

evidence.”).

-3-

court correctly dismissed this action for lack of subject matter

jurisdiction under FED. R. CIV. P. 12(b)(1).2

We AFFIRM.