Raymond Wahrman v. John A. Wahrman

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No. 96-1220 ___________

Raymond Wahrman, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska John A. Wahrman; Terry Ellinger; * Mary Ellinger, * [UNPUBLISHED] * Appellees. *

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Submitted: August 7, 1996

Filed: August 22, 1996 ___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

Raymond Wahrman filed a complaint in the district court against John Wahrman and Terry and Mary Ellinger. He alleged that, through a partition action in Nebraska state court, the Ellingers had fraudulently obtained title to land in which he had an interest, and he sought recovery of the fair value of the property. The district court dismissed the complaint as barred by res judicata. Wahrman appeals.

We must consider the issue of the district court's subject matter jurisdiction if the record suggests it is lacking. Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990). We observe that the complaint did not allege facts showing diversity jurisdiction, or identify a statutory or constitutional basis for federal question jurisdiction. See 28 U.S.C. §§ 1331-1332; Fed. R. Civ. P. 8(a)(1) (pleading which sets forth claim for relief shall contain short

plain statement of grounds for court's jurisdiction); Luecke v. Schnucks Markets, Inc., 85 F.3d 356, 358 (8th Cir. 1996) (federal question generally must appear on face of complaint); Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (pleadings must state citizenship of parties to establish diversity).

Accordingly, we vacate the district court's judgment and remand with directions to dismiss the complaint, without prejudice, for lack of subject matter jurisdiction.

A true copy.

Attest:

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

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