Napper v. Anderson, Henley, Shields, Bradford and Pritchard

• Decision Date: 16 September 1974
• Docket Number: No. 73-3746,73-3746
• Citation: 500 F.2d 634
• Parties: Jim L. NAPPER and wife, Jo Ann Napper, Plaintiffs-Appellants, v. ANDERSON, HENLEY, SHIELDS, BRADFORD & PRITCHARD, etc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 634

500 F.2d 634

Jim L. NAPPER and wife, Jo Ann Napper, Plaintiffs-Appellants, v. ANDERSON, HENLEY, SHIELDS, BRADFORD & PRITCHARD, etc Defendants-Appellees.

No. 73-3746.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 1974.

Charles Ben Howell, H. Averil Sweitzer, Dallas, tex., for plaintiffs-appellants.

D. L. Case, Jack Pew, Jr., Dallas, Tex., for defendants-appellees.

Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.

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 petitioner 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 fact 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 dismiss. 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 citizan, 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 'longarm' 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 under28 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...