IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-60059 Summary Calendar

CAROLYN G. PALMER,

Plaintiff-Appellant,

versus

ORKIN EXTERMINATING COMPANY, INC. and MINOR HARWELL,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Mississippi (4:94-CV-2) November 2, 1995

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Carolyn G. Palmer appeals from the

district court's denial of her motion for remand and from its

subsequent grant of summary judgment for Orkin Exterminating

Company, Inc. (Orkin). Adopting both the conclusions and the

reasoning of the district court, we affirm.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. I.

FACTS AND PROCEEDINGS

In April 1989, Palmer discovered termites in her Mississippi

home and approached Orkin for information on its exterminating

services. Palmer and Orkin thereafter signed a "Subterranean

Termite Agreement" (the Agreement), which provided for an initial

termiticide treatment of Palmer's home, to be followed by the

assignment of a "Limited Lifetime Retreatment Guarantee" (the

Guarantee). Orkin completed its initial treatment of Palmer's home

within the month and promptly issued her Guarantee.

Orkin was less than successful in its first attempt to solve

Palmer's infestation problems. "Swarming" termites resurfaced

periodically for a period of more than four years. Palmer

repeatedly notified Orkin of the insects' reemergence, and Orkin

technicians responded without fail to each of Palmer's calls for

retreatment. Nonetheless, their efforts continually proved

unsuccessful. Palmer ultimately contacted Mississippi State

Department of Agriculture officials, who inspected her house and

determined various deficiencies, under state regulations, in

Orkin's treatment. Orkin complied with the officials'

recommendations; and as of June 1993, the termites were completely

eradicated. Palmer alleges, however, that by then her house had

become uninhabitable.

In December 1993, Palmer filed suit against Orkin and Minor

Harwell, an Orkin employee, in a Mississippi state court. Orkin

and Harwell removed the case to a federal district court, alleging

2 that Harwell had been fraudulently joined to defeat federal

diversity jurisdiction.1 The district court denied a motion by

Palmer to remand the case to state court, dismissed Harwell from

the suit, and retained diversity jurisdiction. Several months

later, after extensive discovery had been conducted by both

parties, the district court granted Orkin's motion for summary

judgment and dismissed the case with prejudice.

Palmer timely filed a notice of appeal, expressing that she

was appealing from the district court's grant of summary judgment

for Orkin and its entry of final judgment. Even though, in her

appellate brief, Palmer also contends that the district court erred

by dismissing Harwell and refusing to remand the case, those

rulings were not mentioned in her notice of appeal.

II.

ANALYSIS

A. APPELLATE JURISDICTION

Before addressing the merits of Palmer's appeal, we must

examine a contention by Orkin that we have no appellate

jurisdiction to hear Palmer's claims concerning Harwell's dismissal

and the district court's refusal to remand. Orkin argues that, as

Palmer's notice of appeal designated only an appeal from Orkin's

motion for summary judgment and the entry of final judgment, we

cannot entertain her challenges to the court's dismissal of Harwell

and refusal to remand, being matters not identified in her notice

1 Palmer and Harwell are Mississippi state citizens; the Orkin corporation is domiciled in Georgia.

3 of appeal.

It is true that appellants who enumerate particular holdings

in notices of appeal typically cannot later raise additional

rulings for our evaluation.2 Our capacity to review the invocation

of subject matter jurisdiction over a case, however, is independent

of any action--or omission--by the parties. Even if federal

jurisdiction had never been questioned in the district court or on

appeal, we would be obliged to raise the issue sua sponte:3

"Because we may not proceed without requisite jurisdiction, it is

incumbent upon federal courts--trial and appellate--to constantly

examine the basis of jurisdiction, doing so on our own motion if

necessary."4 Thus, we have not only the authority, but also the

duty, to review the district court's assumption of diversity

jurisdiction, regardless of the contents of Palmer's notice of

appeal.

B. MERITS

Having disposed of Orkin's argument regarding the scope of

Palmer's appeal, we turn now to the merits of her challenges to the

2 See Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc.,

(5th Cir. 1994); NCNB Texas National Bank v. FDIC,

(5th Cir. 1994); Pope v. MCI Telecommunications Corporation,

(5th Cir. 1991), cert. denied,

(1992); Ingraham v. U.S.,

(5th Cir. 1987). 3 See Beers v. North American Van Lines, Inc.,

(5th Cir. 1988). 4 Save the Bay, Inc. v. United States Army,

(5th Cir. Feb. 1981)(emphasis added); see also FED. R. CIV. P. 12(h)(3); Trizec Properties, Inc. v. U.S. Mineral Products,

(5th Cir. 1992); Beers,

.

4 district court's refusal to remand the case and to its grant of

summary judgment for Orkin, reviewing each determination de novo.5

After carefully evaluating the record on appeal, the arguments of

the parties in their briefs to this court, and the applicable law,

we are convinced that district court "got it right." Accordingly,

we incorporate by reference (1) the unpublished opinion of the

district court dismissing Harwell and denying Palmer's motion to

remand, a copy of which opinion we annex hereto, and (2) the

district court's published opinion granting summary judgment for

Orkin.6 We affirm in all respects the rulings of the district

court and the reasons given by the district court for those

rulings.

AFFIRMED.

5 See NCNB,

(applying de novo review to grant of summary judgment); Carriere v. Sears, Roebuck and Co.,

(5th Cir.) (applying de novo review to district court's dismissal of nondiverse defendants and denial of plaintiff's motion to remand), cert denied,

(1990). 6 Palmer v. Orkin Exterminating Company, Inc.,

(S.D. Miss. 1994).

5