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May 1, 1973

Joseph Weiner, Individually and On Behalf of All Members of a Class of Borrowers Similarly Situated
Bank of King of Prussia, Bank & Trust Co. of Old York Road, The Bryn Mawr Trust Co., Bucks County Bank & Trust Co., Central Penn National Bank, Cheltenham National Bank, The Citizens Bank, Continental Bank, Downingtown National Bank, Fidelity Bank, First Pennsylvania Bank, Frankford Trust Co., Girard Bank, Industrial Valley Bank & Trust Co., Lincoln Bank, Marian Bank, Philadelphia National Bank, Provident National Bank, Southeast National Bank of Penna., and Union National Bank & Trust Co.

Newcomer, District Judge

The opinion of the court was delivered by: NEWCOMER

Opinion and Order


 Presently before the Court is a Motion to Dismiss the Amended Complaint in the above captioned action under Federal Rule of Civil Procedure 12(b) on the ground that the plaintiff lacks standing to maintain his action. The Motion has been submitted by all defendants except Central Penn National Bank.

 The plaintiff has brought this action against twenty (20) named banks, including seven (7) national banks and thirteen (13) state banks, and against a class of defendants said to consist of all other national banks within the Court's jurisdiction. The plaintiff alleges that he is a customer and borrower of only one (1) bank, i.e. Central Penn National Bank. However, he claims to sue on behalf of a class of "customers and/or borrowers of national banks in this District."

 Nowhere in his Amended Complaint (hereinafter referred to as "Complaint"), does the plaintiff allege how he borrowed from the defendant, Central Penn National Bank; nor does he allege at what rate of interest he borrowed these funds; nor does he allege that his loans come within those statutory categories for which interest rates are fixed by law. All that the plaintiff asserts is that at some point in time he borrowed some money from a Philadelphia bank. Furthermore, the plaintiff has erroneously assumed that two of the statutes upon which he relies, the National Bank Act, 12 U.S.C. § 85 (Count I) and the state laws regulating interest (Count II), are uniformly applicable to all twenty defendant banks. The averments in Counts I and II are wrong on their face since thirteen of the named defendants are state chartered banks, not subject in any way to the duties imposed by the National Bank Act. The National Bank Act, 12 U.S.C. § 21 et seq., regulates national banks and only national banks, which can be identified by the word "national" in their name. 12 U.S.C. § 22. Furthermore, seven of the banks are national banks not subject to state laws regulating interest. Farmers' and Mechanics' National Bank v. Dearing, 91 U.S. 29, 23 L. Ed. 196 (1875); Schuyler National Bank v. Gadsden, 191 U.S. 451, 48 L. Ed. 258, 24 S. Ct. 129 (1903); Haseltine v. Central National Bank of Springfield, 183 U.S. 132, 46 L. Ed. 118, 22 S. Ct. 50 (1901).

 Nonetheless, the plaintiff alleges that all the defendants have violated the following federal and state laws regulating the calculation and disclosure of interest rates on loans to individuals:

 (a) The National Bank Act, 12 U.S.C. § 21 et seq., which defines the maximum interest rate that can be charged on loans by National banks (Count I);

 (b) The laws of the Commonwealth of Pennsylvania which regulate the interest rates that can be charged by state banks (Count II);

 (c) Unspecified "common law" (Count III); and

 (d) The Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., which requires creditors to disclose information concerning finance charges in consumer credit transactions (Count IV). The plaintiff seeks fines and penalties imposed for violations of these statutes, together with injunctive relief against continuing violations.

 * * *

 Plaintiff's References to Conspiracy and 28 U.S.C. Section 1337 Do Not Establish Standing to Sue

 There is no allegation in plaintiff's Amended Complaint of any violation of the antitrust laws. In footnote No. 6 of his brief, the plaintiff makes the unprecedented assertion that reference to 28 U.S.C. § 1337 together with the non-specific allegation of conspiracy constitutes a sufficient pleading of antitrust violations. This argument is totally without merit.

 The plaintiff makes but a fleeting and conclusory allusion to "conspiracy" in a section of his Amended Complaint entitled Class Action Allegations (Amended Complaint, para. 11) wherein he asserts:


Defendants, in their combination and conspiracy and concert of action, as more fully set forth herein, have acted and refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

 The "combination and conspiracy and concert of action" is not, in fact, "more fully set forth herein." The Court is familiar with this type of pleading, and on more than one occasion we have spent a considerable amount of time going back and forth through a pleading in order to find where something is "more fully set forth herein" to no avail. The above cited quotation is the first, last, and only fleeting reference to the purported "conspiracy." Yet the plaintiff attempts to pass off this single conclusory remark as support for his contentions that he has pleaded not only "conspiracy" but a violation of the federal antitrust laws.

 Such a contention is unsupportable for two reasons. First, it has long been the rule in the Third Circuit that general conspiracy assertions, without supporting allegations of fact, are insufficient as a matter of law. In Black and Yates v. Mahogany Association, 129 F.2d 227, 231-232 (3rd Cir. 1941) cert. denied, 317 U.S. 672, 63 S. Ct. 76, 87 L. Ed. 539 (1942), the Circuit Court held in connection with allegations of conspiracy under the antitrust laws:


The views just expressed make it unnecessary for us to elaborate upon plaintiffs' failure to state a cause of action under the Sherman or Clayton Acts. . . . The vital allegations in such an action are similar to those in any civil conspiracy case. A general allegation of conspiracy without a statement of the facts is an allegation of a legal conclusion and insufficient of itself to constitute a cause of action. Although detail is unnecessary, the plaintiffs must plead the facts constituting the conspiracy, its object and accomplishment. The plaintiffs have pleaded none of these facts. Neither the date of the alleged conspiracy nor its attendant circumstances are set forth. Nor is it averred who made the statements, where, when or to whom.

 This principle was recently reiterated by the Second Circuit in Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972), in which the court dismissed plaintiff's complaint without leave to amend.


Although the Federal Rules permit statement of ultimate facts, a bare bones statement of conspiracy or of injury under the antitrust laws without any supporting facts permits dismissal. See generally, 2A Moore, Federal Practice para. 12.08 (2d ed. 1968). This is particularly true, when, as here, the original plaintiff has already amended his complaint once with the approval of the court.

 See also Jacobs v. Tenney, 316 F. Supp. 151, 163-165 (D. Del. 1970) (conspiracy to violate the securities laws); Eisman v. Pan American World Airlines, 336 F. Supp. 543, 553 (E.D. Pa. 1971) (conspiracy to violate civil rights under 42 U.S.C. Section 1985); and Drusky v. Judges of the Supreme Court, 324 F. Supp. 332 (W.D. Pa. 1971) (conspiracy to violate civil rights under 42 U.S.C. Section 1985).

 The plaintiff's amended complaint herein simply contains a general allegation of conspiracy without any statement of facts to support this legal conclusion. This is a fatal defect which requires dismissal of the conspiracy allegation and which underscores the invalidity and specious nature of plaintiff's argument that the amended complaint adequately alleges a violation of the antitrust laws. Furthermore, the statutes allegedly violated by the defendants do not provide a cause of action for conspiracy. Therefore, even if conspiracy was properly pleaded, such an averment would not alter the plaintiff's lack of standing to sue.

 Secondly, the plaintiff's contention that his reference to 28 U.S.C.A. Section 1337, "under principles of notice pleading," when taken together with his sweeping allegation of conspiracy, also fails to constitute a sufficient pleading of any antitrust violations. The plaintiff invokes this Court's jurisdiction by virtue of 28 U.S.C.A. 1331 and 1337 (Amended complaint, para. 2). *fn1" The plaintiff concludes, that since Section 1337 is the appropriate jurisdictional provision for an action pleading a violation of Federal Antitrust laws, he has properly pled a conspiracy in violation of the antitrust laws simply by asserting jurisdiction under Section 1337. From this he further concludes that he has standing to sue all the nineteen moving defendants with whom he has not had a borrowing transaction. This argument is circular and fallacious.

 Section 1331 of Title 28 requires an amount in controversy in excess of $10,000. The plaintiff did not plead this amount in either his complaint or amended complaint. The plaintiff cannot hope to aggregate the claims of all the members of the purported class to meet this jurisdictional amount. Snyder v. Harris, 394 U.S. 332, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969). Hence, he needed a jurisdictional provision which does not require an amount in controversy. Accordingly, he pled jurisdiction under Section 1337.

 The plaintiff argues that he has cited a section of Title 28 which he feels appropriately governs jurisdiction for alleged violations of the National Bank Act and, further, that said section of Title 28 is also appropriate for actions alleging federal antitrust violations. Therefore, he concludes, he has pled a "conspiracy in restraint of trade" and he further concludes that he has standing to sue all of the defendants. We do not agree with the plaintiff's conclusions.

 Federal Rule of Civil Procedure 8(a) provides in pertinent part:


(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the ground upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief. . . .

 The purpose of this Rule is to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Under no construction of the concept of fair notice can the plaintiff maintain that he has adequately advised the defendants of an antitrust claim by pleading jurisdiction under 28 U.S.C. Section 1337. First, Rule 8 indicates that the pleading of jurisdiction is distinct from the pleading of claims for relief. See Federal Rule of Civil Procedure 8(a) (1). Secondly, in addition to the antitrust laws, Section 1337 has been held to grant jurisdiction to the district courts over suits involving numerous other federal laws. Among the actions over which the district court has been held to have original jurisdiction by virtue of Section 1337 are actions arising under: the Civil Aeronautics Act, 49 U.S.C. § 401 et seq. ( Lichten v. Eastern Air Lines, 87 F. Supp. 691 (S.D.N.Y. 1949), aff'd, 189 F.2d 939 (2d Cir. 1951)); the Federal Communications Act, 47 U.S.C. § 151 et seq. ( Weiss v. Los Angeles Broadcasting Co., 163 F.2d 313 (9th Cir. 1947), cert. denied, 333 U.S. 876, 92 L. Ed. 1152, 68 S. Ct. 895 (1948)); the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ( Imm v. Union R. Co., 289 F.2d 858 (3rd Cir. 1961)); The Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ( Manosky v. Bethlehem Hingham Shipyard, 177 F.2d 529 (1st Cir. 1949)); The Interstate Commerce Act, 49 U.S.C. § 1 et seq. ( Turner, Dennis & Lowry Lumber Co. v. M. & St. P. Ry. Co., 271 U.S. 259, 70 L. Ed. 934, 46 S. Ct. 530 (1962)); The Jones Act, 46 U.S.C. § 688 ( Ballard v. Moore-McCormack Lines, Inc., 285 F. Supp. 290 (S.D.N.Y. 1968)); The Labor Relations Act, 29 U.S.C. § 151 et seq. ( Templeton v. Dixie Color Printing Co., 444 F.2d 1064 (5th Cir. 1971)); The Railway Labor Act, 45 U.S.C. § 151 et seq. ( International Assn. of Machinists v. Central Airlines, Inc., 372 U.S. 682, 10 L. Ed. 2d 67, 83 S. Ct. 956 (1963)); and The Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 401 et seq. ( Serio v. Liss, 300 F.2d 386 (3rd Cir. 1961)). It is obvious that under the plaintiff's concept of notice pleading, a defendant could never be apprised of the particular act within Section 1337's ambit on which the plaintiff is basing his action. Even under the liberal pleading requirements of Federal Rule of Civil Procedure 8, the plaintiff has not given the defendants "fair notice" of his claim merely by pleading jurisdiction under 28 U.S.C. § 1337.

 The plaintiff has not pleaded a conspiracy within the long-established standards of this Circuit. Nor has he even remotely pled a violation of the antitrust laws. Therefore, the plaintiff's references to conspiracy and to 28 U.S.C. § 1337 do not establish his standing to sue the nineteen moving defendants.


 The sole issue presently before this Court is whether a plaintiff who alleges a credit transaction with one bank has standing to sue nineteen other banks with which he never dealt. Much of the plaintiff's argument addresses itself to matters which are not relevant to the issue at hand. Rather than confront the issue of standing, the plaintiff has attempted to divert the argument to questions of class actions under Rule 23. However, standing and the specific requirements of Rule 23 are separate and distinct issues, and a plaintiff may not use the procedural device of a class action to bootstrap himself into standing he lacks under the express terms of the substantive law. Furthermore, this Court has specifically reserved consideration of class action determination for another time if such a determination is found to be necessary.

 The plaintiff's claim is quite simple. The plaintiff alleges that he borrowed money from a bank and that his loan comes within one of the limited categories for which interest rates have a statutory limit. If the plaintiff has been wronged in his dealings with his bank, he may seek appropriate statutory relief. However, the statutes do not give him the right to expand a potential dispute between himself and his bank into a massive, complex, time consuming, expensive lawsuit.

 For the reasons discussed above, the plaintiff has no standing to sue the nineteen moving defendants, and these defendants will be dismissed from this action.

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