IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10730 Summary Calendar

FRANK J. STANGEL; FRANK J. STANGEL & ASSOCIATES; FRANK’S CLUB STORES; GAIL A. CORRENTI,

Plaintiffs-Appellants,

versus

A-1 FREEMAN NORTH AMERICAN INC., an Oklahoma Corporation - Agent for North American Van Lines; BRUCE ROBERT NEIDENFEUHR; JOHN A. WENINGER; AGENT FOR NORTH AMERICAN VAN LINES,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas (3:01-CV-2198-M) -------------------- March 12, 2003

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

PER CURIAM:*

Plaintiffs-Appellants Frank J. Stangel, individually and on

behalf of his business enterprises,1 and Gail A. Correnti

(collectively “Plaintiffs”) appeal from the dismissal of their

complaint against A-1 Freeman North American Inc. (“Freeman”),

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 For purposes of this appeal, we assume, without deciding, that Frank J. Stangel & Associates and Frank’s Club Stores are properly before the court. Bruce Robert Neidenfeuhr, and John A. Weninger (collectively

“Defendants”). In their complaint, Plaintiffs alleged that

diversity jurisdiction existed, that Defendants had perpetrated

various state-law violations, and that Defendants had violated the

Racketeer Influenced and Corrupt Organizations Act (“RICO”). The

district court dismissed the complaint on grounds that (1) no

diversity jurisdiction existed; (2) Plaintiffs had failed to allege

a RICO claim on which relief may be granted; and (3) federal

jurisdiction did not exist to consider the remaining state-law

claims.

Defendants contend that, because Plaintiffs’ notice of appeal

was timely only as to the denial of their postjudgment motion, the

instant appeal should be dismissed on the ground that, on appeal,

Plaintiffs challenge only the dismissal of their complaint and thus

have abandoned their challenge to the denial of their postjudgment

motion. But, as the district court did not issue a final judgment

of dismissal in a separate document, as required by FED. R. CIV. P.

58, Plaintiffs’ right to appeal is not prejudiced by their failure

to file a timely notice of appeal. See Baker v. Mercedes Benz of

North America,

(5th Cir. 1997). Accordingly, we

shall consider Plaintiffs’ challenge to the dismissal of their

complaint.

In addition, Plaintiffs have filed a motion to strike the

Defendants’ appellate brief and appendix, to stay the proceedings,

and to extend the time for Plaintiffs to file a reply brief in

2 light of the order to strike. Plaintiffs’ motion is frivolous and

is therefore denied.

Plaintiffs argue that the district court erred when it held

that diversity jurisdiction did not exist in this case. We review

dismissals for lack of subject-matter jurisdiction de novo. See

Whatley v. Resolution Trust Corp.,

(5th Cir.

1994). Diversity jurisdiction exists only when complete diversity

of citizenship exists and the amount in controversy exceeds

$75,000. See

(a). Plaintiffs’ assertions that

complete diversity of citizenship exists are contradicted by the

allegations in their own complaint. Accordingly, the district

court properly held that diversity jurisdiction is not present in

this case.

Plaintiffs assert that the district court erred by dismissing

their RICO claim under FED. R. CIV. P. 12(b)(6). We also review de

novo a dismissal under FED. R. CIV. P. 12(b)(6). See Oliver v.

Scott,

(5th Cir. 2002). Our plenary examination

of Plaintiffs’ allegations indicate that they did indeed fail to

allege a RICO claim on which relief could be granted. See

Calcasieu Marine Nat’l Bank v. Grant,

(5th Cir.

1991). It follows that, because the Plaintiffs’ RICO claim was

properly dismissed and the district court did not have diversity

jurisdiction to hear this case, the remaining state-law claims were

properly dismissed. See Parker & Parsley Petroleum Co. v. Dresser

3 Indus.,

(5th Cir. 1992). For the foregoing

reasons, the district court’s dismissal of Plaintiffs’ complaint is

AFFIRMED, and Plaintiffs’ motion to strike, to stay proceedings, and to extend time to file reply brief is DENIED.

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