MICHAEL J. HORAN, Individually and on Behalf of All Others Similarly Situated v. Wilcox & Fetzer Ltd, a Delaware Limited Partnership On Appeal from the United States…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4644
MICHAEL J. HORAN, Individually and on
Behalf of All Others Similarly Situated,
Appellant
v.
WILCOX & FETZER LTD,
a Delaware Limited Partnership
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 03-cv-00979)
District Judge: Hon. Gregory M. Sleet
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 18, 2005
BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and COWEN, Circuit Judges
(Filed October 28, 2005)
OPINION
COWEN, Circuit Judge.

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Michael Horan appeals the District Court’s order dismissing the complaint against
Wilcox & Fetzer, Ltd., on the basis that it lacked subject matter jurisdiction. Horan
contends that the District Court had subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331 because 28 U.S.C. § 753, which regulates court reporters, confers a private right
of action. We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C.
§ 1291 and will affirm.
Wilcox and Fetzer had an exclusive contract with the United States Bankruptcy
Court for the United States District Court of Delaware to provide court reporting services
and transcripts. Horan, who had initiated proceedings in the bankruptcy court, had to rely
upon Wilcox and Fetzer for the procurement of transcripts of his hearings. Horan alleges
that he was required to pay rates that exceeded those provided in Section 753 and the
Judicial Conference Guidelines.
Horan, individually and on behalf of all others similarly situated, filed a complaint
in the United States District Court for the District of Delaware, to recover for the
overcharging of fees for transcripts. The District Court granted Wilcox and Fetzer’s
motion to dismiss the complaint for lack of subject matter jurisdiction, concluding that
Section 753 did not create a cause of action for individuals, and this appeal ensued.
We review de novo a district court’s order granting a defendant’s motion to
dismiss. See Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). We
accept as true all well pleaded factual allegations and draw all reasonable inferences in

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favor of the plaintiff. See id. Dismissal is only appropriate if it “‘appears beyond doubt
that plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.’” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The Court Reporter’s Act provides in pertinent part: “Each reporter may charge
and collect fees for transcripts requested by the parties, including the United States, at
rates prescribed by the court subject to the approval of the judicial conference.” 28
U.S.C. § 753(f). While Horan concedes that no federal court has ever held that Section
753 creates a private cause of action, he argues that the requirements of Section 753 are
mandatory, and a cause of action is available under the statute for its enforcement and for
monetary relief. We disagree.
An alleged violation of a federal statute does not automatically establish a federal
question. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804 (1986) (holding that
a federal act must create or imply a private right of action for individuals in order to have
a federal question to support jurisdiction under Section 1331). Whether a “statute creates
a cause of action, either expressly or by implication, is basically a matter of statutory
construction . . . [such that] what must ultimately be determined is whether Congress
intended to create the private remedy asserted.” Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S. 11, 15-16 (1979). Even assuming Horan was harmed by a Section 753
violation, such a violation does not automatically give rise to a private cause of action in
his favor.

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Section 753 does not create or imply a right of action for individuals to support a
federal question cause of action under Section 1331. There is no language in the statute
indicating that Congress intended to create or alter any civil liabilities for a violation of
Section 753. Further, Congress expressly provided judicial means for enforcing
compliance with the Act. See 28 U.S.C. § 753(c) (“The reporters shall be subject to the
supervision of the appointing court and the Judicial Conference in the performance of
their duties, including dealings with parties requesting transcripts.”)
Accordingly, the District Court correctly concluded that it lacked subject matter
jurisdiction over the complaint.
For the foregoing reasons, the judgment of the District Court entered on November
10, 2004, will be affirmed.

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