117 F3d 1427 Wma Associates Inc v. Wilcox

117 F.3d 1427

WMA ASSOCIATES, INC., Plaintiff-Appellant,
Mark T. FLANAGAN, Plaintiff,
Larry WILCOX; Team Elite Travel, Inc.; World Television
Networking, Inc., Defendants-Appellees.

No. 95-56775.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 5, 1997.
July 8, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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Appeal from the United States District Court for the Central District of California Linda H. McLaughlin, District Judge, Presiding




Before: THOMPSON and T.G. NELSON, Circuit Judges, and FITZGERALD,** District Judge.


The jurisdictional predicate to a claim under Section 10(b) of the Securities and Exchange Act of 1934 is that the alleged fraudulent activity must be done "by use of any means or instrumentality of interstate commerce or of the mails...." This jurisdictional requirement is not met where use of a means or instrumentality of interstate commerce "is not connected to the transaction in question." Spilker v. Shayne Lab., Inc., 520 F.2d 523, 525 (9th Cir.1975).


Here the use of the mails was by WMA and came after the deal was signed. Whether correspondence by the victim of the alleged fraud can support jurisdiction is questionable in itself, but certainly not when the use of the mails came after the conduct claimed to have been fraudulent. The district court was therefore correct in concluding that the jurisdictional basis of the case was lacking.


WMA also argues that intrastate telephone calls support jurisdiction here. However, this argument was not made to the district court, and we decline to address it when raised for the first time on appeal. Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir.1985).



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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation