October 22, 1993
Before the Court is defendants' Motion to Dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. For the following reasons, defendants' Motion to Dismiss is granted.
Plaintiffs Howard W. Harrison ("Harrison"), a citizen of New York, and James D. Robbins ("Robbins"), a citizen of Connecticut, bring this suit against CoreStates Bank, N.A. ("CoreStates") in a consolidated complaint on their own behalf and on behalf of a class. Harrison and Robbins are beneficiaries of irrevocable trusts administered by CoreStates. CoreStates is a national bank with offices in Philadelphia, Pennsylvania. The class has not been certified and this motion will be decided on the two plaintiffs' consolidated complaint.
The complaint arises from CoreStates' actions as trustee of the two plaintiffs' irrevocable trust accounts. Through a computer program, CoreStates regularly sweeps fiduciary accounts to temporarily invest principal and income cash in collective investment funds. The plaintiffs allege that CoreStates charges the irrevocable trusts a fee for this service that is not charged to similarly situated commercial accounts. Plaintiffs also complain of an additional fee charged irrevocable trusts, "Regulatory Compliance Compensation", ranging from $ 300-$ 600. The plaintiffs charge that CoreStates imposed the fee without notice and that the fee amounts to double dipping because the cost of complying with recent regulations should come out of CoreStates's general overhead and not be charged to individual trust accounts.
Plaintiffs state that CoreStates' breach of fiduciary duty violates 12 U.S.C. § 92a, that the sweep fees violate 12 C.F.R. § 9.18(b)(12), and that the "Regulatory Compliance Compensation" violates 12 C.F.R. § 9.15. Plaintiffs seek a refund of the $ 300-$ 600 "Regulatory Compliance Compensation" and a refund of all sweep fees assessed against their trust accounts. Plaintiffs ask this Court to remove CoreStates from the position of corporate fiduciary of their trusts accounts and to enjoin CoreStates's practice of assessing "Regulatory Compliance Compensation" and "sweep fees". Finally, plaintiffs want a refund of all the sweep fees and "Regulatory Compliance Compensation" paid from their trust accounts to date.
CoreStates moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6): lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. When a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot.
Plaintiffs claim federal jurisdiction over their complaint under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1332 (diversity). Because § 1331 provides "the district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States", the plaintiff seeking jurisdiction under § 1331 should allege, as part of his well-pleaded complaint, that a federal right or immunity is an essential element of his cause of action. United Jersey Banks v. Parell, 783 F.2d 360, 365 (3d Cir. 1986) (citations omitted), cert. denied First Fidelity Bancorporation v. Parell, 476 U.S. 1170, 106 S. Ct. 2892, 90 L. Ed. 2d 979 (1986). Further, the plaintiff bears the burden of persuasion to show that his claim is not wholly insubstantial when subject matter is challenged. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), cert. denied, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991).
In the present case, the plaintiffs have alleged violations of 12 U.S.C. § 92a and two regulations interpreting it, 12 C.F.R. §§ 9.15 and 9.18(b)(12). The history of litigation in this matter involving sweep fees, defendant argues, supports a conclusion that the claim in this case is immaterial and made solely for the purpose of obtaining jurisdiction. I find, however, that the alleged violations of 12 U.S.C. § 92a and two regulations interpreting it are essential elements of plaintiff's cause of action and not wholly insubstantial.
Under a motion to dismiss Pursuant to 12(b)(6), the defendant carries the burden of establishing that no claim has been presented. Id. The standard of review under 12(b)(6) "requires the court to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Under a 12(b)(6) motion, the court need not determine whether the plaintiff will ultimately prevail, rather, whether the plaintiff can prove any sets of facts to support his claim that would entitle him to prevail. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984).
The plaintiff brings his claim under 12 U.S.C. § 92a, entitled "Trust Powers", and 12 C.F.R. §§ 9.15, 9.18(b)(12). Upon examination of the language § 92a and the regulations, no explicit private right of action exists. The Third Circuit has not addressed the issue of whether a implied private right of action exists for a violation of § 92a. However, the only court to expressly address whether a private right of action exists under § 92a did not find one. Blaney v. Florida Nat. Bank, 357 F.2d 27 (5th Cir. 1966). The Fifth Circuit reasoned that Congress enacted § 92a to place national banks on a competitive basis with state banks and it was not meant to be "broad, remedial, social legislation." Id. at 30. The court concluded Congress intended the Comptroller to exclusively enforce § 92a "without room or need for supplemental enforcement." Id.
Other courts have addressed the issue of whether private rights of action exist for chapter 2, of Title 12, (which contains § 92a) through § 93.
One of the first cases to recognize a private cause of action under this section was Chesbrough v. Woodworth, 244 U.S. 72, 37 S. Ct. 579, 61 L. Ed. 1000 (1917). In Chesbrough, the Supreme Court recognized a private cause of action for shareholders against a bank's directors under what is now 12 U.S.C. § 161.
The scope of these private causes of action through § 93 under chapter 2 of title 12 has been narrowly construed. The Fifth Circuit "read Section 93 to be limited to violations by 'directors of any national banking association' of only those sections which appear within Chapter 2 of Title 12, Banks and Banking, of the United States Code." Harmsen v. Smith, 542 F.2d 496, 501 (9th Cir 1976). Other courts have limited private causes of action under § 93 to breaches of specific duties enumerated in the National Bank Act, chapter 2 of Title 12. Golar v. Daniels & Bell, Inc., 533 F. Supp. 1021, 1027 (S.D.N.Y. 1982); Thompson v. Kerr, 555 F. Supp 1090, 1097 (S.D. Ohio 1982).
Courts have recognized private causes of action for violations of § 161(a) (requiring banks to file truthful report with the Comptroller) and § 92a(a) (imposing permit requirement). . . .no private cause of action lies for violations of § 84 (prohibiting loans to a single customer in excess of bank's total assets), § 73 (requiring directors to take oaths), § 71a (limiting the numbers serving on the bank's board of directors)' and § 92 (permitting banks in small cities to act as insurance agents or real estate brokers).
Brown Leasing, Inc. v. FDIC, No. 91 C 3729, 1993 U.S. Dist. LEXIS 3962, at *6 (N.D. Ill. March 24, 1993).
Only one case discussed whether 12 U.S.C. § 92a, in particular, gave rise to a private cause of action under § 93. B.C. Recreational Industries v. First Nat. Bank, 639 F.2d 828 (1st Cir. 1981). The court discussed in a footnote that Chesbrough and Harmsen could be a basis for a private right of action under § 92a. However, in B.C., the plaintiff alleged the bank violated § 92a(a) by acting in fiduciary capacity without a permit, not a breach of fiduciary duty. Id. at 833. More on point, one court declined to find a private cause of action under the National Bank Act for a breach of fiduciary duty. Golar, 533 F. Supp. at 1027 (S.D.N.Y. 1982).
Applying what can be gleaned from the foregoing review of cases, I note, first of all, that plaintiffs have not pled that CoreStates violated any specific duty enumerated in § 92a. The plaintiffs allege that CoreStates violated the regulations promulgated by the Comptroller to enforce § 92a, 12 C.F.R. §§ 9.15, 9.18(b)(12). Implied private causes of action have arisen only for specific violations of the National Bank Act, not regulations interpreting it. Secondly, while the plaintiffs do allege that CoreStates violated § 92a, they have only offered a breach of fiduciary duty as the violation of § 92a. While banks receive their authority to act as a fiduciary under § 92a, a breach of fiduciary duty does not violate any of the express powers conferred by this section. Finally, § 92a(k) provides:
(1) In the addition to the authority conferred by other law, if, in the opinion of the Comptroller of the Currency, a national banking association is unlawfully or unsoundly exercising, or has unlawfully or unsoundly exercised, or has failed for a period of five consecutive years to exercise, the powers granted by this section or otherwise fails or has failed to comply with the requirements of this section, the Comptroller may issue and serve upon the association a notice of intent to revoke the authority of the association to exercise the powers granted by this section. . . . (emphasis added).