Jim L. Napper & Wife, Jo Ann Napper v. Anderson, Henley, Shields, Bradford & Pritchard, Etc., 500 F.2d 634 (5th Cir. 1974). · Go Syfert
Search
Jim L. Napper & Wife, Jo Ann Napper v. Anderson, Henley, Shields, Bradford & Pritchard, Etc., 500 F.2d 634 (5th Cir. 1974). Cases Citing This Book View Copy Cite
“the wire fraud act, 18 u.s.c. 1343 , is closely analogous to the mail fraud statute, 18 u.s.c. 1341 , and likewise evidences no intent of congress to grant additional federal question jurisdiction in civil cases.”
73 citation events (32 in the last 25 years) across 37 distinct courts.
Strongest positive: Hanson v. Jeff Schmitt Auto Group (ohsd, 2025-05-01)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 45 distinct citers.
examined Cited as authority (verbatim quote) Hanson v. Jeff Schmitt Auto Group
S.D. Ohio · 2025 · quote attribution · 1 verbatim quote · confidence high
the wire fraud act, 18 u.s.c. 1343 , is closely analogous to the mail fraud statute, 18 u.s.c. 1341 , and likewise evidences no intent of congress to grant additional federal question jurisdiction in civil cases.
cited Cited as authority (rule) Graves
S.D. Miss. · 2025 · confidence medium
Miss. 1997); see Bell v. Health-Mor, Inc., 549 F.2d 342, 344 (5th Cir. 1977); Napper v. Anderson, Henley, Shield, Bradford, and Pritchard, 500 F.2d 634, 636 (5th Cir. 1974).
discussed Cited as authority (rule) Herrmann v. Pointer
W.D. Tex. · 2025 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (neither mail fraud statute nor wire fraud act creates a right of action enforceable by private parties); Thomas v. Abebe, 833 F. App’x 551 , 555 (5th Cir. 2020) (per curiam) (district court “correctly held” that the appellant did not have a private right of action under 18 U.S.C. § 1001 ); Johnson v. Fed.
discussed Cited as authority (rule) Hermann v. Jon
W.D. Tex. · 2025 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (neither mail fraud statute nor wire fraud act creates a right of action enforceable by private parties); Thomas v. Abebe, 833 F. App’x 551 , 555 (5th Cir. 2020) (per curiam) (district court “correctly held” that the appellant did not have a private right of action under 18 U.S.C. § 1001 ); Johnson v. Fed.
discussed Cited as authority (rule) Wolfford v. Frisby
E.D. Tex. · 2025 · confidence medium
Bell v. Health-Mor, Inc., 549 F.2d 342, 246 (Sth Cir. 1977) (holding that any private right of action under 18 U.S.C. § 1341 is foreclosed); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (Sth Cir. 1974) (holding that 18 U.S.C. § 1343 does not provide a private right of action for civil litigants).
discussed Cited as authority (rule) Roberson v. Williams
W.D. La. · 2024 · confidence medium
As to 18 U.S.C. §§ 1341 and 1343 specifically, the United States Court of Appeals for the Fifth Circuit found that these statutes do not “afford[] the court federal question Jurisdiction in a civil case.” Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (Sth Cir. 1974).
discussed Cited as authority (rule) Borne v. Home Bank, N.A.
M.D. La. · 2024 · confidence medium
Tex. July 27, 2022), citing Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (holding that 18 U.S.C. § 1343 does not provide a private right of action for civil litigants); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977) (holding the same for § 1341). 27 Dillon v. Jobert, No. 23-5753, 2024 WL 810362 , at *4 (E.D.
discussed Cited as authority (rule) HORTON v. LEASINGDESK SCREENING
S.D. Ind. · 2021 · confidence medium
Monon cites Napper v. Anderson, Hensley, Shields, Bradford & Pritchard, stating: "The wire fraud act, 18 U.S.C. § 1343 , is closely analogous to the mail fraud statute . . . and likewise evidences no intent of Congress to grant additional federal question jurisdiction in civil cases." Id. (quoting 500 F.2d 634, 636 (5th Cir. 1974)).
discussed Cited as authority (rule) Burrell v. Concept Ag. LLC
N.D. Miss. · 2020 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford, and Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (holding that the mail fraud statute, like the wire fraud statute, cannot give rise to a civil action); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977) (finding no private right of action under 18 U.S.C. § 1341 ).
discussed Cited as authority (rule) Mendoza v. Amalgamated Transit Union International
D. Nev. · 2019 · confidence medium
Claim 26 is brought by all plaintiffs against defendant Home. 1 First Midwest Bank of Popular Bluff, 167 F.3d 402 , 407–08 (8th Cir. 1999) (no implied private 2 right of action under mail fraud or wire fraud statutes); Ryan v. Ohio Edison Co., 611 F.2d 1170 , 3 1178 (6th Cir. 1979) (no implied private right of action under mail fraud statute); Napper v. 4 Anderson, Henley, Shields, Bradford and Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (no 5 implied private right of action under wire fraud statute), cert. denied, 423 U.S. 837 (1975). 6 Accordingly, plaintiffs’ ninth claim is dismissed w…
discussed Cited as authority (rule) Hohu v. Hatch
N.D. Cal. · 2013 · confidence medium
See, e.g., Johnson Steel St.-Rail Co. v. William Wharton, Jr., & Co., 152 U.S. 252, 261 , 14 S.Ct. 608 , 38 L.Ed. 429 (1894) ("The existence or nonexistence of a right, in either party, to have the judgment in the prior suit re-examined, upon appeal or writ of error, cannot, in any case, control this inquiry."); 3 Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636-37 (5th Cir.1974) ("Estoppel by judgment will not permit matters actually litigated and determined between the same parties in one proceeding to be relitigated... [a]s between the two federal district courts…
discussed Cited as authority (rule) Miller v. Countrywide Home Loans (2×)
S.D. Ohio · 2010 · confidence medium
Ryan v. Ohio Edison Co., 611 F.2d 1170, 1177-79 (6th Cir.1979); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974).
discussed Cited as authority (rule) Andrews v. Modell
S.D.N.Y. · 2008 · confidence medium
See Painters Local Union No. 109 Pension Fund v. Smith Barney, Inc., 133 F.3d 590, 591 (8th Cir.1998); New Orleans Public Service, Inc. v. Majoue, 802 F.2d 166, 167-68 (5th Cir.1986); Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir.1975); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636-37 (5th Cir.1974).
discussed Cited as authority (rule) Newdow v. Bush
D.D.C. · 2005 · confidence medium
The key to the “curable defect” exception is that the jurisdictional deficiency in the original suit, here a lack of standing because the alleged injury was not sufficiently concrete and specific, must be “remedied by occurrences subsequent to the original dismissal.” Id. (emphasis in original); see also Costello v. United States, 365 U.S. 265, 284-88 , 81 S.Ct. 534 , 5 L.Ed.2d 551 (1961) (government’s filing of an affidavit of good cause in a denaturalization proceeding); Martin v. Dep’t of Mental Hygiene, 588 F.2d 371 , 373 n. 3 (2d Cir.1978) (proper service of process); Napper v…
discussed Cited as authority (rule) Robert R. Wisdom Nancy J. Wisdom v. First Midwest Bank, of Poplar Bluff Jerry F. McLane Jerry Dorton Joey McLane
1st Cir. · 1999 · confidence medium
See Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178 (6th Cir.1979) (finding the scant legislative history of the mail fraud statute to indicate an intent to punish dealers of fraudulent devices for using the United States mails but not an intent to create a private right of action); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir.1977) (finding no implied private remedy under mail fraud statute); Napper v. Anderson, Henley, Shields, Bradford and Pritchard, 500 F.2d 634, 636 (5th Cir.1974) (same under wire fraud statute), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
discussed Cited as authority (rule) Robert Wisdom v. First Midwest Bank
8th Cir. · 1999 · confidence medium
See Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178 (6th Cir. 1979) (finding the scant legislative history of the mail fraud statute to indicate an intent to punish dealers of fraudulent devices for using the United States mails but not an intent to create a private right of action); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977) (finding no implied private remedy under mail fraud statute); Napper v. Anderson, Henley, Shields, Bradford & Pritchart, 500 F.2d 634, 636 (5th Cir. 1974) (same under wire fraud statute), cert. denied, 423 U.S. 837 (1975).
discussed Cited as authority (rule) City Capital Resources, Inc. v. White
S.D.W. Va · 1998 · confidence medium
Direct estoppel is the narrower and more unusual situation “where the issue is actually litigated and determined in an action between the same parties based upon the same cause of action.” Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974) n.4, cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
cited Cited as authority (rule) Kingsley v. Ashworth
9th Cir. · 1998 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974).
cited Cited as authority (rule) Morganroth & Morganroth v. DeLorean
6th Cir. · 1997 · confidence medium
Ryan v. Ohio Edison Co., 611 F.2d 1170, 1177-79 (6th Cir.1979); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974).
discussed Cited as authority (rule) Bajorat v. Columbia-Breckenridge Development Corp.
N.D. Ill. · 1996 · confidence medium
See, e.g., Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir.1989) (involving mail and wire fraud statutes); Wilcox v. First Interstate Bank of Oregon, N.A., 815 F.2d 522 , 533 n. 1 (9th Cir.1987) (Boochever, J., dissenting) (involving mail fraud statute); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1177-79 (6th Cir.1979) (involving mail fraud statute); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir.1977) (involving mail fraud statute); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir.1974) (involving wire fraud statute); Wiggins v. Philip Morris, Inc., 853 F.Supp. 458, …
discussed Cited as authority (rule) South Boston Allied War Veterans Council v. City of Boston
D. Mass. · 1995 · confidence medium
Judgments § 27, Comment c; Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 637 (5th Cir.1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); Continental Airlines, Inc. v. American Airlines, Inc., 824 F.Supp. 689, 712 (S.D.Tex.1993).
discussed Cited as authority (rule) ca9 1994
9th Cir. · 1994 · confidence medium
Sec. 1341 means other Cort factors need not be addressed), and Bell v. Health-Mor, Inc., 549 F.2d 342, 344-45 (5th Cir.1977)); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir.1974) (like mail fraud statute, no Congressional intent to create federal cause of action for damages under 18 U.S.C.
discussed Cited as authority (rule) Wiggins v. Philip Morris, Inc.
D.D.C. · 1994 · confidence medium
See, e.g., Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir.1989) (“18 U.S.C. §§ 1341 and 1343 (1982) ... do not provide a private right of action.”); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1179 (6th Cir.1979) (Section 1341); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir.1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975) (Section 1343).
discussed Cited as authority (rule) Wiggins v. Hitchens
D.D.C. · 1994 · confidence medium
See, e.g., Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir.1989); Napper v. Anderson, 500 F.2d 634, 636 (5th Cir.1974), cert. denied 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
cited Cited as authority (rule) Strickland v. Holiday RV Superstores, Inc.
M.D. Fla. · 1993 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford and Pritchard, 500 F.2d 634, 636 (5th Cir.1974), reh’g denied, 507 F.2d 723 , cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
discussed Cited as authority (rule) Official Publications, Inc. v. Kable News Co., Inc.
S.D.N.Y. · 1988 · confidence medium
Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); Milburn v. Blackfrica Promotions, 392 F.Supp. 434, 435 (S.D.N.Y.1974).
discussed Cited as authority (rule) Sedima, S. P. R. L. v. Imrex Co. (2×)
SCOTUS · 1985 · confidence medium
See, e. g., Ryan v. Ohio Edison Co., 611 F. 2d 1170, 1178-1179 (CA6 1979) (mail fraud); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F. 2d 634, 636 (CA5 1974) (wire fraud), cert. denied, 423 U. S. 837 (1975).
examined Cited as authority (rule) James J. Dozier v. Ford Motor Company (4×) also: Cited "see, e.g."
D.C. Cir. · 1983 · confidence medium
The "curable defect" exception applies where a "precondition requisite" to the court's proceeding with the original suit was not alleged or proven, and is supplied in the second suit--for example, the Government's filing of an affidavit of good cause in a denaturalization proceeding, Costello v. United States, 365 U.S. 265, 284-88 , 81 S.Ct. 534, 544-46 , 5 L.Ed.2d 551 (1961), proper service of process, Martin v. Dep't of Mental Hygiene, 588 F.2d 371 , 373 n. 3 (2d Cir.1978), or residency adequate to invoke diversity jurisdiction, see Napper v. Anderson, 500 F.2d 634, 637 (5th Cir.1974), cert.…
discussed Cited as authority (rule) Lassiter v. District of Columbia (2×)
D.C. · 1982 · confidence medium
But see Johnson Co. v. Wharton, 152 U.S. 252, 261 , 14 S.Ct. 608 , 611, 38 L.Ed. 429 (1894); Winters v. Lavine, 574 F.2d 46, 62-63 (2d Cir. 1978); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636-37 (5th Cir. 1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); 1B J.
discussed Cited as authority (rule) Daniel Robert Ryan v. Ohio Edison Company
6th Cir. · 1979 · signal: cf. · confidence medium
Several courts have decided that no private right existed under the Mail Fraud Statute, see Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (5th Cir. 1977); Krupnick v. Union National Bank, 470 F.Supp. 1037 (W.D.Pa.1979); Milburn v. Black frica Promotions, *1179 Inc., 392 F.Supp. 434 (S.D.N.Y.1974), or that no federal question jurisdiction for a private remedy was created under section 1341, see Oppenheim v. Sterling, 368 F.2d 516, 518-19 (10th Cir. 1966), cert. denied, 386 U.S. 1011 , 87 S.Ct. 1357 , 18 L.Ed.2d 441 ; cf. Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636…
discussed Cited as authority (rule) Sciolino v. Marine Midland Bank-Western
W.D.N.Y. · 1979 · confidence medium
Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975); Nashville Milk Co. v. Carnation Company, 355 U.S. 373 , 78 S.Ct. 352 , 2 L.Ed.2d 340 reh. denied, 355 U.S. 967 , 78 S.Ct. 530 , 2 L.Ed.2d 542 (1958); Napper v. Anderson, Henley, Shields, Bradford & P., 500 F.2d 634, 636 (5th Cir. 1974), reh. denied, 507 F.2d 723 (5th Cir.), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); Fagundez v. Oakland Raiders Professional Football Club, 498 F.2d 1394 (Em.App. 1974); Chavez v. Freshpict Foods, Inc., 456 F.2d 890 , 893-94 (10th Cir.), cert. denied, 409 U.S. 1042 , 93 S.Ct. 53…
discussed Cited as authority (rule) Winters v. Lavine
2d Cir. · 1978 · confidence medium
Johnson Co. v. Wharton, 152 U.S. 252, 256-57, 260-61 , 14 S.Ct. 608 , 38 L.Ed. 429 (1894); Ex parte Pennsylvania, 109 U.S. 174, 176 , 27 L.Ed. 894 (1883); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636-37 (5th Cir. 1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); Elk Garden Co. v. T.
discussed Cited as authority (rule) Winters v. Lavine
2d Cir. · 1978 · confidence medium
Johnson Co. v. Wharton, 152 U.S. 252, 256-57, 260-61, 14 S.Ct. 608 , 38 L.Ed. 429 (1894); Ex parte Pennsylvania, 109 U.S. 174, 176 , 27 L.Ed. 894 (1883); Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636-37 (5th Cir. 1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); Elk Garden Co. v. T.
discussed Cited "see" English v. United States Of America
S.D. Tex. · 2024 · signal: see · confidence high
See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634 (Sth Cir. 1974) (holding federal wire fraud statute does not create a private cause of action); Bell v. Health-Mor, Inc., 549 F.2d 342, 346 (Sth Cir. 1977) (holding federal mail fraud statute does not create a private cause of action); De Pacheco v. Martinez, 515 F. Supp. 2d 773, 789 (S.D.
cited Cited "see" Blackshear v. South Fork CDJR
S.D. Tex. · 2022 · signal: see · confidence high
See Napper v. Anderson, Hensley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974).
discussed Cited "see" ROBINSON v. MCNEESE
M.D. Ga. · 2020 · signal: see · confidence high
See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (holding that 18 U.S.C. § 1343 (the Wire Fraud Act) does not create a federal cause of action for damages against defendants alleged to have violated its provisions)5; see also Jenkins v. McCalla Raymer, LLC, NO. 1:10-CV-03732-CAP-AJB, 2011 WL 13185750 , at *12 (N.D.
cited Cited "see" Richard B. Goodin, Sr. v. Fidelity National Title Insurance Company
11th Cir. · 2012 · signal: see · confidence high
See Napper, 500 F.2d at 637 .
discussed Cited "see" American General Life & Accident Insurance v. Ward
N.D. Ga. · 2007 · signal: see · confidence high
See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir.1974) (describing the mail and wire fraud statutes as “purely penal”) and Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999)(“Congress did not intend to create a private right of action in enacting either the mail or wire fraud statutes”).
discussed Cited "see" United Nuclear Corp. v. General Atomic Co.
N.M. · 1982 · signal: see · confidence high
See Napper v. Anderson, Henley, Shields, Bradford & P., 500 F.2d 634 (5th Cir. 1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975); see also Chandler v. O’Bryan, 445 F.2d 1045, 1057 (10th Cir. 1971), cert. denied, 405 U.S. 964 , 92 S.Ct. 1176 , 31 L.Ed.2d 241 (1972) (when district judge considered all questions raised on his hearing of removal of state libel suit and determined that case should be remanded for state court trial, that decision was res judicata on issue of forum).
cited Cited "see" Krupnick v. Union National Bank
W.D. Pa. · 1979 · signal: see · confidence high
See Napper v. Anderson, Henley, Schields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974), cert, denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975).
discussed Cited "see" Schreiber v. Blankfort
D. Conn. · 1977 · signal: see · confidence high
See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634 (5th Cir. 1974); Bell v. Health-Mor, Inc., 549 F.2d 342 (5th Cir. 1977); cf. Oppenheim v. Sterling, 368 F.2d 516, 518-19 (10th Cir. 1966) (federal statutes covering mail fraud held not bases for civil actions).
cited Cited "see" Middlebury Associates v. R. E. Bean Construction Co.
D. Vt. · 1977 · signal: see · confidence high
See Napper v. Anderson, 500 F.2d 634, 636 (5th Cir. 1974).
discussed Cited "see" Fed. Sec. L. Rep. P 96,007 Willie Bell, Jr. v. Health-Mor, Inc.
5th Cir. · 1977 · signal: see · confidence high
See Napper v. Anderson, 500 F.2d 634 (CA5, 1974), cert. denied, 423 U.S. 837 , 96 S.Ct. 65 , 46 L.Ed.2d 56 (1975) (upholding dismissal of claim of private right of action under Wire Fraud Act for lack of subject matter jurisdiction). 3 .
discussed Cited "see, e.g." Berry v. Loancity
M.D. La. · 2020 · signal: see also · confidence medium
Once again, “[p]rivate citizens do not have the right to bring a private action under a federal criminal statute” and “cannot enforce federal criminal statutes in a civil action.” Id. (citation omitted); see also Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) (holding that the Wire Fraud Act, codified in 18 U.S.C. § 1343 , is a criminal statute that does not convey a private right of action).
discussed Cited "see, e.g." Lovy v. Federal National Mortgage
D.N.H. · 2014 · signal: see, e.g. · confidence medium
See, e.g., Napper v. Anderson, Henley, Shields, Bradford and Pritchard, 500 F.2d 634, 636 (5th Cir. 1974); Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178-79 (6th Cir. 1979); Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 408 (8th Cir. 1999).
Jim L. NAPPER and Wife, Jo Ann Napper, Plaintiffs-Appellants,
v.
ANDERSON, HENLEY, SHIELDS, BRADFORD & PRITCHARD, Etc., Defendants-Appellees
73-3746.
Court of Appeals for the Fifth Circuit.
Sep 16, 1974.
500 F.2d 634
Charles Ben Howell, H. Averil Sweitzer, Dallas, Tex., for plaintiffs-appellants., D. L. Case, Jack Pew, Jr., Dallas, Tex., for defendants-appellees.
Brown, Rives, Dyer.
Cited by 58 opinions  |  Published
RIVES, Circuit Judge:

This appeal is from a judgment of the district court dismissing the case for want of jurisdiction and without prejudice. We affirm.

The complaint seeks the recovery of damages from a Dallas, Texas, law partnership and the individual partners for alleged malpractice involving the validity and effect of a conveyance of the Napper’s home in Dallas. [1] • The first action asserting this claim was filed by plaintiffs on June 9, 1971, in the Circuit Court of Pulaski County, Arkansas. The complaint alleged that the cause of action arose in Arkansas, and sought ,to have the Arkansas state court acquire “long-arm” jurisdiction over the Texas defendants (See Arkansas Statutes 27-2502).

On July 12, 1971, defendants filed a petition for removal to the Federal District Court for the Eastern District of Arkansas asserting diversity jurisdiction that the plaintiffs were citizens of Arkansas and the defendants were citizens of Texas. Defendants then filed in the federal district court to which the case had been removed a motion to quash the “long-arm” service of process.

The next month, on August 23, 1971, the plaintiffs filed in the United States District Court for the Northern District of Texas a complaint in the present case, identical, except for minor grammatical changes, to the complaint pending in the federal district court in Arkansas. This complaint stated:

“Plaintiffs are filing this suit as a precaution against having their cause dismissed after the running of the applicable limitations period. Plaintiffs requested that the Court withhold proceedings hereon pending a ruling by the federal courts of Arkansas upon the jurisdictional question.”

Plaintiffs based federal jurisdiction on diversity of citizenship, asserting that the defendants were all citizens of Texas and going into some detail as to their own citizenship:

“Notwithstanding the fact that plaintiffs, Jim L. Napper and wife, Jo Ann Napper, own homestead property in Texas, they have established sufficient residence in the State of Arkansas to entitle them to invoke the diversity jurisdiction of the United States District Court for the Northern District of Texas.”

The defendants on September 2, 1971, moved to dismiss plaintiffs’ complaint for lack of jurisdiction, alleging:

“It affirmatively appears on the face of Plaintiffs’ complaint that they are citizens and residents of Texas, as are the Defendants, so that no diversity of citizenship exists. In the alternative, if it does not affirmatively appear on the face of Plaintiffs’ complaint that they are citizens of the State of Texas, then Defendants affirmatively assert that they are citizens of such state, so that there is no diversity of citizenship, and the Court has no jurisdiction over the cause of action asserted by Plaintiffs.”

More than a year later, on November 21, 1972, the defendants filed in the federal district court in Arkansas a motion to dismiss for want of diversity jurisdiction, asserting plaintiffs to be citizens of the same state as were defendants, that is Texas. On May 9, 1973, a hearing was conducted on that motion to dis[*636] miss. The district judge found that the plaintiffs at the time of filing their complaint and since had the intention of going back to Texas. In part, the Judge said:

“The Court believes that his [Mr. Napper’s] intention when he came here was not to make Arkansas his home on an indefinite basis, that that is what is absent and, therefore, he remained domiciled in Texas and remained a Texas citizen, although residing in Arkansas.”

The case was accordingly remanded to the Circuit Court of Pulaski County, Arkansas. That state court never reached the merits, but ultimately sustained the defendants’ motion to quash the “long-arm” service of process.

On September 25, 1973, the plaintiffs filed in the present case an amended complaint reasserting the same claim based on diversity jurisdiction with the same allegations of citizenship. As an alternative claim, the plaintiffs sought to recover damages alleged to have resulted from violation by the defendants of the wire fraud act, 18 U.S.C. § 1343. [2] The plaintiffs claim that violation of that criminal statute operates to create a federal cause action for damages against the defendants, and assert jurisdiction under 28 U.S.C. § 1337. [3]

In Oppenheim v. Sterling, 1966, 368 F.2d 516, 518-519, the Tenth Circuit held that 18 U.S.C. §§ 1341, 1342, relating to mail fraud, are purely penal and rejected “the view that a violation of these penal statutes as such affords the court federal question jurisdiction in a civil case.” The wire fraud act, 18 U.S. C. § 1343, is closely analogous to the mail fraud statute, 18 U.S.C. § 1341, and likewise evidences no intent of Congress to grant additional federal question jurisdiction in civil cases. Reitmeister v. Reitmeister, 2 Cir. 1947, 162 F.2d 691, does not persuade us differently.

Estoppel by judgment precludes the plaintiffs from successfully asserting diversity jurisdiction. The distinction between res judicata and estoppel by judgment is discussed in Commissioner v. Sunnen, 1948, 333 U.S. 591, 597, 598, 68 S.Ct. 715, 92 L.Ed. 898. Estoppel by judgment will not permit matters actually litigated and determined between the same parties in one proceeding to be relitigated (333 U.S. at 598, 68 S.Ct. 715). [4] We agree with the full and amply supported discussion in IB Moore’s Federal Practice fí 0.405 [5], that

“the underlying policy of res judicata is not restricted to a valid judgment that deals solely with the merits; it extends to and includes matters in abatement, such as jurisdiction of the subject matter, federal jurisdiction, jurisdiction over the res, jurisdiction over the defendant, venue, and related matters.” (Footnotes omitted.)

As between the two federal district courts, the inability to appeal from the[*637] order of remand does not permit the issue actually litigated and determined in the federal court in Arkansas to be relitigated in the second action. Johnson Company v. Wharton, 1894, 152 U.S. 252, 14 S.Ct. 608, 38 L.Ed. 429; see also the full discussion of and possible limitations to this rule in IB Moore’s Federal Practice ¶ 0.416 [5].

The federal district court in Arkansas held that as of July 12, 1971, the date of removal, it lacked jurisdiction because plaintiffs were on that date citizens of Texas. To sustain federal jurisdiction in the Texas district court, plaintiffs had the burden of proving that they had changed their citizenship between July 12 and August 23, 1971, when their complaint in the present case was filed. Though afforded ample opportunity to do so, the plaintiffs have never pleaded or proved any change of citizenship during that crucial period. The district court properly dismissed the case for want of jurisdiction, and its judgment is

Affirmed.

1

. The conveyance is that described in Napper v. Johnson, Tex.Civ.App.1971, 464 S.W.2d 406.

2

. Ҥ 1343. Fraud by wire, radio, or television

“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”
4

. The estoppel by judgment is accurately termed “direct estoppel” where the issue is actually litigated and determined in an action between the same parties based upon the same cause of action. See A.L.I. Restatement, Judgments § 45 comment d; Estevez v. Nabers, 5 Cir. 1955, 219 F.2d 321, 324; Myers v. Ampex, Inc., 5 Cir. 1974, 498 F.2d 1092 [1974]; 46 Am.Jur.2d § 397, p. 566 n. 7. That distinction between “direct estoppel” and “collateral estoppel” helps to make clear our conclusion that neither the standards of law applied by the federal district court in Arkansas nor its findings of fact may be relitigated.