457 F.2d 820 (10th Cir. 1972), 71-1199, North Davis Bank v. First Nat. Bank of Layton

Docket Nº:71-1199.
Citation:457 F.2d 820
Party Name:NORTH DAVIS BANK, a corporation, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF LAYTON, a corporation, Defendant-Appellee.
Case Date:March 27, 1972
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 820

457 F.2d 820 (10th Cir. 1972)

NORTH DAVIS BANK, a corporation, Plaintiff-Appellant,


FIRST NATIONAL BANK OF LAYTON, a corporation, Defendant-Appellee.

No. 71-1199.

United States Court of Appeals, Tenth Circuit.

March 27, 1972

Page 821

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 fro 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

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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...

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