Old Nat. Bank of Washington v. Rainier Bancorporation

• Court: Washington Court of Appeals
• Writing for the Court: MUNSON
• Citation: Old Nat. Bank of Washington v. Rainier Bancorporation, 567 P.2d 695, 18 Wn.App. 353 (Wash. App. 1977)
• Decision Date: 09 August 1977
• Docket Number: No. 2267-III
• Parties: OLD NATIONAL BANK OF WASHINGTON, a National Banking Association, Petitioner, v. RAINIER BANCORPORATION, a Washington Corporation, Respondent.

Page 353

18 Wn.App. 353

567 P.2d 695

OLD NATIONAL BANK OF WASHINGTON, a National Banking Association, Petitioner, v. RAINIER BANCORPORATION, a Washington Corporation, Respondent.

No. 2267-III.

Court of Appeals of Washington, Division 3.

Aug. 9, 1977.

Witherspoon, Kelley, Davenport & Toole, William D. Symmes, Thomas D. Cochran, Spokane, for appellant.

Stephen Crary and Robert A. Medved, Graham, McCord, Dunn, Moen, Johnston & Rosenquist, Seattle, Robert McNichols, Winston, Cashatt, Repsold, McNichols, Connelly & Driscoll, Spokane, for respondent.

MUNSON, Chief Judge.

The plaintiff, Old National Bank of Washington (ONB), sought discretionary review from an order granting a change of venue from Spokane to King County. Review was granted; we reverse.

ONB instituted this action against Rainier Bancorporation and Rainier National Bank by filing and serving the complaint September 1, 1976, but voluntarily dismissed Rainier National Bank on the same day. The complaint alleges, among other things, the defendant's infringement of the plaintiff's service mark "MoneyMax" by utilizing its service mark "Blue Max," and seeks damages for that infringement. In addition, Old National Bank seeks a permanent injunction enjoining Rainier National Bank from using the words "Blue Max" and "Max," and further requiring destruction of "all advertising material, letterheads, stationery, signs, and other printed material of any nature whatsoever" utilizing those words or groups of words which simulate plaintiff's service mark.

Rainier Bancorporation, a holding company, owns 100 percent of the shares of Rainier National Bank and maintains its home office in King County.

One day after this action was filed and served, Rainier Bancorporation transferred the service mark "Blue Max" to the Rainier National Bank.

Rainier Bancorporation moved to strike ONB's application for a preliminary injunction and either for a dismissal of this action or for a change of venue to King County. The court decided only the motion for change of venue, reserving the other motions to be ruled upon by the King County Superior Court. Discretionary review was granted Old National Bank by our Commissioner on the basis that the superior court appeared to have committed probable error. RAP 2.3(b)(2).

In granting the change of venue, the trial court found that Rainier National Bank was a necessary party and should be joined in the interests of justice and judicial economy, primarily because Rainier National Bank was the party who had invested substantial sums in the preparation and distribution of the advertising material utilizing "Blue Max" and, at the time the motion was argued, was the assignee of the trademark. Although ONB peripherally attacks that finding, we find the challenge is not well taken; the trial court correctly found Rainier National Bank to be a necessary party.

CR 19 provides:

(a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, . . . If he has not been so joined, the court shall order that he be made a party. . . . If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

Rainier National Bank is a national banking association. Those associations have been accorded the option of being sued only in the district in which their home office is located. 12 U.S.C. § 94 (1945):

Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.

(Italics ours.) Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); Super Value Stores, Inc. v. Western Film Service Corp., 416 F.Supp. 662 (D.Minn.1976). See also, Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); National Bank of North America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976). However, that option may be either waived or lost, depending upon the acts of the national banking association. Central Bank, National Ass'n v. Superior Court for the County of Sacramento, 30 Cal.App.3d 962, 106 Cal.Rptr. 912 (1973); e. g., First National Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889); Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963).

Apparently the trial court's order was premised on the belief that Rainier National Bank, being a necessary party, could only be joined in the county of its main office, i. e., King County. We disagree. The bank can be joined in Spokane County, but has a right to challenge the venue and have it transferred to King County.

We recognize that CR 19(a) denotes that if the joined party objects to venue and his joinder "would render the venue of the action improper, he shall be dismissed," but that portion of the rule is not applicable here. RCW 4.12.027 ¹ and RCW 4.12.030 ² provide for a change of venue in such an instance.

ONB argues that it will resist any change in venue on the basis that Rainier National Bank has waived the provisions of 12 U.S.C. § 94 (1945). He is entitled to make that argument but Rainier National Bank is entitled to be heard as well. Although we perceive that the court may have been a prophet in entering the change of venue order, we find that it is premature. While the provisions of CR 19, as they have been interpreted under Fed.R.Civ.P. 19, do encourage a practical approach to these procedural issues, ³ the plaintiff has a right to choose its forum, subject to the...