must also allege the violation of a specific substantive provision of the Act.").
Finally, noting that the court in B.C. Recreational Indus. v. First Nat'l Bank, 639 F.2d 828 (1st Cir. 1981) found a private right of action under section 92a on the basis of Harmsen and Chesbrough v. Woodworth, 244 U.S. 72, 37 S. Ct. 579, 61 L. Ed. 1000 (1917) (finding a private cause of action for shareholders against a bank's directors under what is now 12 U.S.C. § 161), Judge Buckwalter distinguished the case on the basis that plaintiff alleged a violation of section 92a(a) by the bank for acting in a fiduciary capacity without a permit, and not a breach of fiduciary duty. In Re Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 6-7. See also Golar v. Daniels & Bell, Inc., 533 F. Supp. 1021, 1026-27 (S.D.N.Y. 1982) ("I do not believe that any of these cases dictate the absolute availability of a private remedy for any violation of a Chapter 2 section of the National Bank Act. This is especially true in the instant case which essentially involves a breach of fiduciary duty by directors, an area traditionally regulated by state law.").
Judge Buckwalter then based his decision to dismiss the complaint on three factors. First, plaintiffs did not allege defendant violated any specific duty enumerated in section 92a, rather, they alleged violations of the regulations promulgated by the Comptroller. In Re Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 7. Second, while plaintiffs did allege a breach of fiduciary duty under section 92a, a breach of fiduciary duty did not violate any of the express powers conferred by that section. Id. Finally, section 92a(k) already provided a remedy in the event of any violation of this section, namely, revocation of the powers granted to the bank by the Comptroller. Id. at 7-8.
We find Judge Buckwalter's detailed decision to be applicable to the present case. In their complaint, plaintiffs state that defendant "is unlawfully exercising the fiduciary powers granted to it by the Comptroller of the Currency pursuant to 12 U.S.C. § 92a, and has breached its fiduciary duties and contractual duties to plaintiffs and members of the Class." Consolidated complaint, para. 33. Plaintiffs further claim that defendant's "imposition of sweep fees unrelated to its cost of providing the 'sweep' service and in excess of what would have been charged [to their] fiduciary accounts had their funds not been swept, is unlawful and in direct violation of 12 C.F.R. § 9.18(b)(12) and § 9.15." Id. at para. 25. Finally, plaintiffs allege that defendant's "imposition of an unreasonable sweep fee is in direct violation of 12 C.F.R. § 9.15 which requires that a national bank acting in a fiduciary capacity may only charge or deduct a reasonable compensation for its services." Id. at para. 27.
Plaintiffs have made the same allegations with respect to the breach of fiduciary duty in violation of section 92a and the exact same regulations at issue in Corestates. It is clear from a thorough reading of section 92a and the regulations, however, that a breach of fiduciary duty does not violate section 92a because, although banks get their authority to act as a fiduciary under section 92a, it is not a specific duty enumerated in the statute. Moreover, a careful reading of the complaint shows that plaintiffs have not alleged defendant violated any specific duty enumerated in section 92a, rather, they have simply alleged specific violations by defendant of the regulations. Thus, since there can be no violation of section 92a by a breach of fiduciary duty, there can be "no implied private right of action . . . from the regulations alone. Rather, the statute must be examined to determine if an implied private right of action can be found from the statute." Smith v. Dearborn Financial Serv., Inc., 982 F.2d 976, 979 (6th Cir. 1993); In Re Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 7.
Nor can a private right of action be implied under the test enumerated in Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975).
See Thompson v. Kerr, 555 F. Supp. 1090. 1098 (S.D. Ohio 1982) ("it is very doubtful that any private right of action could be implied under the Act, if the leading case of Cort (citations omitted) and its progeny were applied."). Under Cort, courts look to the following factors to determine if a private right of action can be implied from a statute not expressly conferring one. First, the plaintiff must be one of the class for whose especial benefit the statute was enacted. Second, there must be an indication of legislative intent to create a private right of action. Third, a private right of action must be consistent with the legislative scheme. Fourth, if the cause of action was one that was traditionally relegated to state law, then it would be inappropriate to infer a cause of action based solely on federal law. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975).
In the case at bar, there is no evidence that plaintiffs are of the class for whose especial benefit the Act was enacted. Rather, as previously stated, the purpose of the Act was to put national banks on equal footing with state banks. See Blaney v. Florida Nat'l Bank, 357 F.2d 27, 30 (5th Cir. 1964). There is no indication from the language of the NBA that it was created in order to further the special interests of trust beneficiaries. Second, the legislative history is devoid of any intent to create or to deny a private right of action. "In fact, no court ever recognized a private right of action under the predecessor statutes to § 92a." In Re Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 8-9 (citing Blaney v. Florida Nat'l Bank, 357 F.2d 27 (5th Cir. 1966)). "To imply 'a private right of action on the basis of congressional silence is a hazardous enterprise, at best.'" Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 9 (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S. Ct. 2479, 2486, 61 L. Ed. 2d 82 (1979)). Third, given that the statute's underlying purpose is to place national banks on equal footing with state banks, and that the Comptroller has authority to supervise and regulate national banks under this statute, it is inconsistent with the legislative scheme to imply a private right of action under the statute. See Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 9. Finally, the law of trusts is primarily an area which has been left to state law. See Blaney, 357 F.2d 27, 30 (5th Cir. 1966) (stating the law of trusts is primarily a matter of state concern); Corestates, 837 F. Supp. 104, 1993 U.S. Dist. LEXIS 15415, 1993 WL 459968, at 9. Thus, based on all four factors, we conclude there is no private right of action which can be implied under section 92a. As such, this Court lacks jurisdiction under 28 U.S.C. § 1331.
III. Leave to amend
Plaintiffs have attached an amended consolidated complaint to their response to the motion to dismiss which purports to clarify plaintiffs' jurisdictional allegations pursuant to 28 U.S.C. § 1337, among other things. However, after careful review of the amended consolidated complaint, we decline to give plaintiffs leave to file it. Plaintiffs' new jurisdictional allegation simply states the NBA is an act regulating commerce under 28 U.S.C. § 1337. However, because plaintiffs allege the same violations of section 92a and the regulations, without any allegation of a violation of a specific duty enumerated under the NBA, plaintiffs fail to state a claim for which relief can be granted. As such, granting leave to file the amended consolidated complaint would be futile. See Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886 (3rd Cir. 1992) (district court may refuse to grant leave where complaint fails to cure the jurisdictional defect); Unger v. National Residents Matching Program, 928 F.2d 1392, 1401 (3rd Cir. 1991) (no error where district court declined to give leave to file amended complaint where it failed to state a cognizable claim).
Given that we have determined there is no diversity jurisdiction because plaintiffs have not satisfied the amount in controversy, and that there is no federal jurisdiction because there is no private right of action under section 92a of the NBA, we need not consider defendant's remaining arguments: that dismissal is warranted for failure to join an indispensable party, that the probate exception deprives this Court of jurisdiction or that this Court should abstain from hearing this case because of the special expertise of the Pennsylvania Orphan's Court.
Moreover, in light of our decision, we decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3). An appropriate order follows.
AND NOW, this 19th day of November, 1993, upon consideration of the motion of defendant First Fidelity Bank, N.A. Pennsylvania, to dismiss the consolidated complaint, and all responses thereto, it is hereby ORDERED that:
1) defendant's motion is GRANTED and plaintiffs' consolidated complaint is DISMISSED;
2) leave to file plaintiffs' amended consolidated complaint is DENIED;
3) plaintiffs' motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure is DENIED as MOOT.
BY THE COURT:
J. Curtis Joyner, J.