North Davis Bank v. First National Bank of Layton

• Decision Date: 27 March 1972
• Docket Number: No. 71-1199.,71-1199.
• Citation: 457 F.2d 820
• Parties: NORTH DAVIS BANK, a Corporation, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAYTON, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

457 F.2d 820 (1972)

NORTH DAVIS BANK, a Corporation, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAYTON, a corporation, Defendant-Appellee.

No. 71-1199.

United States Court of Appeals, Tenth Circuit.

March 27, 1972.

K. Roger Bean, Layton, Utah, for plaintiff-appellant.

J. Thomas Greene, Salt Lake City, Utah, for defendant-appellee.

Before LEWIS, Chief Judge, and PICKETT and DOYLE, Circuit Judges.

PICKETT, Circuit Judge.

In 1970, the First National Bank of Layton, Utah began construction of a building across the street from its principal banking house, intending to use such as a drive-in window facility for receiving deposits and cashing checks. Plaintiff North Davis Bank, a state bank, brought this action in state court seeking to enjoin the completion of the building and its use in connection with the business of the First National, contending that the facility would constitute a branch bank in violation of Utah law.¹ The defendant removed the case to federal court pursuant to 28 U.S.C. § 1441(a). The trial court denied a motion to remand, determined that the facilities in question did not constitute a "branch bank," and granted defendant's motion to dismiss. On this appeal the jurisdiction of the federal district court is questioned, as well as the summary disposition of the case on its merits.

It is first urged that the removal was not proper and that the motion to remand should have been granted. The trial court was of the view that the allegations of the complaint present a right or an immunity arising under the Constitution and laws of the United States and that the federal court had jurisdiction.

What constitutes a case arising under the Constitution or a law of the United States has often been resolved by well defined principles and this court has had occasion recently to apply these several tests in State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 691 (10th Cir. 1971), citing Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), and Chandler v. O'Bryan, 445 F.2d 1045, (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972).

The tests stated in Gully for determining when a case arises under the laws of the United States are applicable here:

"A right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff\'s cause of action. Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 29 L.Ed. 388; First National Bank v. Williams, 252 U.S. 504, 512, 40 S.Ct. 372, 374, 64 L.Ed. 690. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. Ibid; King County v. Seattle School District, 263 U.S. 361, 363, 364, 44 S.Ct. 127, 128, 68 L.Ed. 339. A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto (New Orleans v. Benjamin, 153 U.S. 411, 424, 14 S.Ct. 905, 38 L.Ed. 764; Defiance Water Co. v. Defiance, 191 U.S. 184, 191, 24 S.Ct. 63, 48 L.Ed. 140; Joy v. St. Louis, 201 U.S. 332, 26 S.Ct. 478, 50 L.Ed. 776; Denver v. New York Trust Co., 229 U.S. 123, 133, 33 S.Ct. 657, 57 L.Ed. 1101), and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal. Tennessee v. Union & Planters\' Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511; Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716; Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218. Indeed, the complaint itself will not avail as a basis of jurisdiction in so far as it goes beyond a statement of the plaintiff\'s cause of action and anticipates or replies to a probable defense. Devine v. Los Angeles, 202 U.S. 313, 334, 26 S.Ct. 652, 50 L.Ed. 1046; The Fair v. Kohler Die & Specialty Co., supra."

Appellant argues that the removal was improper in that the complaint as filed in state court neither raises nor asserts any federal right or question but that to the contrary is one based on a violation of Utah State Banking Law. Defendant, on the other hand, maintains that the action is one arising under 12 U.S.C. § 36(f) which defines a branch bank under federal law.

The conditions under which national banks may branch are embodied by the McFadden Act, 12 U.S.C. § 36. The policy established by the Act is generally referred to as one to create "competitive equality" between competing national and state banks and allows national banks to branch if, and only if, the host state permits one of its own state banks to branch.² See Walker Bank & Trust Company v. Saxon, 352 F.2d 90 (10th Cir. 1965), aff'd, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). It is well settled that the conditions under which a national bank may branch are to be determined by reference to state law and "that a `branch' may be established only when, where, and how state law would authorize a state bank to establish and operate such a branch." First National Bank in Plant City, Fla. v. Dickinson, 396 U.S. 122, 130, 90 S.Ct. 337, 341, 24 L.Ed.2d 312 (1969); First Nat. Bank of Logan, Utah v. Walker Bank, 385 U.S. 252, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966). What constitutes a branch of a national bank, however, is to be determined by application of the standards prescribed by 12 U.S.C. § 36(f).³ See Ramapo Bank v. Camp, 425 F.2d 333, 346 (3d Cir. 1970), cert. denied, 400 U.S. 828, 91 S.Ct. 57, 27 L.Ed. 2d 58 (1970), holding state law restrictions as to main office relocation are not to be read into the National Bank Act. In First National Bank in Plant City, Fla. v. Dickinson, 396 U.S. 122, 133, 90 S.Ct. 337, 343, 24 L.Ed.2d 312 (1969), the Supreme Court, in interpreting a question of what constitutes a branch of a national bank, held that this determination presented a threshold question of federal law. It stated:

"We reject the contention made by amicus curiae National Association of Supervisors of State Banks to the effect that state law definitions of what constitutes `branch banking\' must control the content of the federal definition of § 36(f). Admittedly, state law comes into play in deciding how, where, and when branch banks may be operated, Walker Bank, supra, for in § 36(c) Congress entrusted to the States the regulation of branching as Congress then conceived it. But to allow the States to define the content of the term `branch\' would make them the sole judges of their own powers. Congress did not intend such an improbable result, as appears from the inclusion in § 36 of a general definition of `branch.\'"

Not every question of federal law arising in an action establishes that a federal law is the basis of the suit. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Anderson v. Bingham & G. Ry. Co., 169 F.2d 328 (10th Cir. 1948). "The case must be directly concerned with the construction of federal law and a determination of rights thereunder." State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687, 691 (10th Cir. 1971). In the present case it is clearly the gravamen of plaintiff's suit that the construction of the drive-in window facility constitutes a branch. What constitutes a branch of a national bank is to be determined by the definition in § 36(f), not local law. First National Bank v. Dickinson, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969). This is the essential element of the plaintiff's claim. This is not a case in which a federal statute is indirectly or collaterally involved but it is one having its source in and arising under 12 U.S.C. § 36(f). International Ass'n of Machinists v. Central Airlines, 372 U.S. 682, 695, 83 S.Ct. 956, 10 L.Ed.2d 67 (1962.)

A state court case is removable only when it is disclosed on the face of the complaint, unaided by answer or by petition for removal, that it is one arising under the Constitution or laws of the United States. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Gully v. First Nat. Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); State of Oklahoma ex rel. Wilson v. Blankenship, 447 F.2d 687 (10th Cir. 1971); Chandler v. O'Bryan, 445 F.2d 1045 (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972); Crow v. Wyoming Timber Products Co., 424 F.2d 93 (10th Cir. 1970); Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748 (1st Cir. 1971). The complaint alleges that the First National Bank of Layton has or is about to illegally establish a branch, which action it seeks to enjoin. The allegations present rights and immunities arising from federal statutes and the case was properly removed.

The remaining question is whether the trial court erred in concluding summarily on a motion to dismiss that the proposed "drive-in" facilities did not constitute a "branch bank."

The provisions of Rule 12(b), Federal Rules of Civil Procedure, provide that a trial court may, in its consideration of a motion to dismiss, treat it as a motion for summary judgment if matters outside the complaint are to be considered. Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir. 1965); Arrington v. City of Fairfield, Alabama, 414 F.2d 687, 692 (5th Cir. 1969); Soley v. Star & Herald Co., 390 F.2d 364, 366 (5th Cir. 1968); Bradford v. School District No. 20,...