IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20728 Summary Calendar

DAVID S. SEFTON,

Plaintiff-Appellant,

versus

MATHEW KRYSTOF, Individually doing business as World Wide Financial; RICHARD KRYSTOF; JAMES MCCREARY; NANNETTE NICOLE KRYSTOF,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-2753 -------------------- January 13, 2003

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

PER CURIAM:*

Plaintiff-Appellant David Sefton appeals the dismissal of his

suit for lack of jurisdiction under FED. R. CIV. P. 12(b)(1).

Magistrate judges are empowered to dismiss complaints under that

rule, but this power is severely circumscribed “when the basis of

jurisdiction is also an element in the plaintiff’s federal cause of

action. Williamson v. Tucker,

(5th Cir. 1981)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. (quoting Bell v. Hood,

(1946)). The question

whether Sefton registered the photographs at issue prior to

initiating his suit for copyright infringement is central to both

jurisdiction and the viability of his federal copyright claim. See

Geoscan, Inc. of Tx. v. Geotrace Techs., Inc.,

(5th Cir. 2000). When that is the case, jurisdiction exists and

the challenge to jurisdiction should be treated as a direct attack

on the merits of the plaintiff’s case. Bell,

.

Sefton’s copyright claims against the defendants fall squarely

within the rule of Bell; as such, jurisdiction should have been

addressed on the merits under FED. R. CIV. P. 12(b)(6) (for failure

to state a claim) or FED. R. CIV. P. 56 (summary judgment). See

Williamson,

. The dismissal without prejudice

under FED. R. CIV. P. 12(b)(1) is vacated and the case remanded for

further consideration consistent with this analysis.

VACATED and REMANDED.