State of N. D. v. Merchants Nat. Bank & Trust Co., Fargo, N. D., No. 77-1902

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore GIBSON, Chief Judge, HENLEY, Circuit Judge and SCHATZ; GIBSON; In Standard Oil
Citation579 F.2d 1112
PartiesThe STATE OF NORTH DAKOTA, doing business as the Bank of North Dakota, Appellant, v. MERCHANTS NATIONAL BANK AND TRUST COMPANY, FARGO, NORTH DAKOTA, Red River National Bank and Trust Company, Grand Forks, North Dakota, Jamestown National Bank, Jamestown, North Dakota, Union National Bank, Minot, North Dakota, Wahpeton National Bank, Wahpeton, North Dakota and John Heimann, Comptroller of the Currency, Appellees.
Decision Date07 July 1978
Docket NumberNo. 77-1902

Page 1112

579 F.2d 1112
The STATE OF NORTH DAKOTA, doing business as the Bank of
North Dakota, Appellant,
v.
MERCHANTS NATIONAL BANK AND TRUST COMPANY, FARGO, NORTH
DAKOTA, Red River National Bank and Trust Company, Grand
Forks, North Dakota, Jamestown National Bank, Jamestown,
North Dakota, Union National Bank, Minot, North Dakota,
Wahpeton National Bank, Wahpeton, North Dakota and John
Heimann, Comptroller of the Currency, Appellees.
No. 77-1902.
United States Court of Appeals,
Eighth Circuit.
Submitted May 18, 1978.
Decided July 7, 1978.

Peter B. Work, Jones, Day, Reavis & Pogue, Washington, D. C., argued, for appellant; James F. Bell and Michael J. Petrina, Jr., Washington, D. C., and Maurice E. Cook, Sp. Asst. Atty. Gen., Bismarck, N. D., on brief.

David Ranheim, Minneapolis, Minn., argued, for appellee, banks; Paul J. Scheerer of Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., Frank J. Magill, Fargo, N. D., on brief.

Linda Jan S. Pack, Atty., App. Sec., Civ. Div., Dept. of Justice, Washington, D. C., argued, for appellee, Comptroller; Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., James R. Britton, U.S.Atty., Fargo, N. D., and Ronald R. Glancz, Atty., Washington, D. C., on brief.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge and SCHATZ, District Judge. *

GIBSON, Chief Judge.

This case involves a challenge to the actions of the appellee national banks in changing their names and the actions of the Comptroller of the Currency (Comptroller) in approving the new names. The State of North Dakota, doing business as the Bank of North Dakota (State Bank), brought this action in the District Court for review of the Comptroller's administrative action approving the name change. The State Bank also contends that it challenged the name changes under the common law of unfair

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competition. Because of the unusual posture of the case we affirm the District Court's 1 order upholding the Comptroller's decision but remand for further proceedings the claim based on North Dakota common law.

On September 7, 1976, the appellee banks applied to the Comptroller for approval of their name changes under § 30 of the National Bank Act (12 U.S.C. § 30). 2 The five banks are affiliated with First Bank System, Inc., a registered bank holding company headquartered in Minneapolis, Minnesota. The banks and the proposed name changes were as follows:

(a) Merchants National Bank and Trust Company of Fargo: requested name change First Bank of North Dakota (N.A.) Fargo;

(b) Red River National Bank and Trust Company of Grand Forks: requested name change First Bank of North Dakota (N.A.) Grand Forks;

(c) Jamestown National Bank: requested name change First Bank of North Dakota (N.A.) Jamestown;

(d) Union National Bank in Minot: requested name change First Bank of North Dakota (N.A.) Minot;

(e) Wahpeton National Bank: requested name change First Bank of North Dakota (N.A.) Wahpeton.

The State Bank opposed the applications because of the similarity between its name, "Bank of North Dakota," and the dominant part of each of the proposed names, "First Bank of North Dakota." Other parties also opposed the name changes before the Comptroller.

The Comptroller finally approved the name changes on February 11, 1977. The present case was then filed. A preliminary injunction was denied on May 4, 1977, and the changes became effective on May 5, 1977. Cross motions for summary judgment were filed and on September 30, 1977, the District Court granted the appellee banks' and Comptroller's motions for summary judgment and dismissed the State Bank's claim.

In this appeal the State Bank does not challenge the Comptroller's approval of the new names or the District Court's order upholding the Comptroller. Before this court, the counsel for the State Bank began his argument by stating: "I wish to emphasize that in this appeal we are not challenging the Comptroller's administrative approval of that name under the National Bank Act. Furthermore, we are not challenging the District Court's affirmation of that approval." The State Bank is seeking review of the denial of injunctive relief against the appellee banks on the basis that relief should have been granted under state law principles of unfair competition. On this issue the positions taken by the parties have resulted in resolution of the case being elusive.

The State Bank contends that a pendent claim under state law was stated in its complaint. It also argues that this unfair competition claim was not decided by the Comptroller because he lacked jurisdiction over it, and was not considered by the District Court in affirming the Comptroller's approval. The State Bank asks us to decide the merits of the issue on the basis of the similarity between the names, or remand

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the case for further proceedings in the District Court.

The Comptroller's approval is no longer challenged and no relief is now sought against him; thus he appears to have no continuing...

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6 practice notes
  • State of N. D. v. Merchants Nat. Bank and Trust Co., Fargo, N. D., No. 79-1342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 6 Agosto 1980
    ...the district court's dismissal of all claims against the Comptroller. State of North Dakota v. Merchants National Bank & Trust Co., 579 F.2d 1112, 1113, 1115 (8th Cir. 1978). The State maintained, however, that the district court had ignored its pendent claim against the banks for viola......
  • State of ND v. MERCHANTS NAT. BANK & TRUST, Civ. No. A77-3017.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 21 Marzo 1979
    ...court granted defendants' motion for summary judgment and dismissed plaintiff's claim.1 Plaintiff appealed from the ruling of this court. 579 F.2d 1112 (8th Cir. 1978). On appeal, plaintiff did not challenge the Comptroller's approval of the name change or this court's order upholding the C......
  • Telcom v. American Sharecom, Inc., PLAINTIFFS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 19 Noviembre 1999
    ...we do not decide issues that the district court did not adjudicate."); North Dakota v. Merchants Nat'l Bank and Trust Co., 579 F.2d 1112, 1115 (8th Cir. 1978) ("Generally we do not decide issues that were not passed upon by the trial court."). The application of the PSLRA rem......
  • FIRST NAT. BANK, ETC. v. Aberdeen Nat. Bank, CIV 79-1013.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 15 Junio 1979
    ...of Marquette is distinguishable. The plaintiff also contends that State of North Dakota v. Merchants National Bank & Trust Co., 579 F.2d 1112 (8th Cir. 1978), supports its position. However, it overlooks key parts of that opinion which indicate that the Eighth Circuit Court did not spec......
  • Request a trial to view additional results
6 cases
  • State of N. D. v. Merchants Nat. Bank and Trust Co., Fargo, N. D., No. 79-1342
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 6 Agosto 1980
    ...the district court's dismissal of all claims against the Comptroller. State of North Dakota v. Merchants National Bank & Trust Co., 579 F.2d 1112, 1113, 1115 (8th Cir. 1978). The State maintained, however, that the district court had ignored its pendent claim against the banks for viola......
  • State of ND v. MERCHANTS NAT. BANK & TRUST, Civ. No. A77-3017.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 21 Marzo 1979
    ...court granted defendants' motion for summary judgment and dismissed plaintiff's claim.1 Plaintiff appealed from the ruling of this court. 579 F.2d 1112 (8th Cir. 1978). On appeal, plaintiff did not challenge the Comptroller's approval of the name change or this court's order upholding the C......
  • Telcom v. American Sharecom, Inc., PLAINTIFFS-APPELLANTS
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 19 Noviembre 1999
    ...we do not decide issues that the district court did not adjudicate."); North Dakota v. Merchants Nat'l Bank and Trust Co., 579 F.2d 1112, 1115 (8th Cir. 1978) ("Generally we do not decide issues that were not passed upon by the trial court."). The application of the PSLRA rem......
  • FIRST NAT. BANK, ETC. v. Aberdeen Nat. Bank, CIV 79-1013.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 15 Junio 1979
    ...of Marquette is distinguishable. The plaintiff also contends that State of North Dakota v. Merchants National Bank & Trust Co., 579 F.2d 1112 (8th Cir. 1978), supports its position. However, it overlooks key parts of that opinion which indicate that the Eighth Circuit Court did not spec......
  • Request a trial to view additional results

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