Wells Fargo Bank, N.A. v. WMR e-PIN, LLC
653 F.3d 702
September 02, 2011
National bank was a citizen for diversity jurisdiction purposes only of the state in which its main office was located, not of the state where it had its principal place of business. 28 U.S.C.A. §§ 1332(c)(1), 1348.
Appellant Synoran is a citizen of several states, including California. Appellants maintain that Wells Fargo is a citizen of California, its principal place of business, and of South Dakota, where its main office is located. They argue that the district court erred in holding that Wells Fargo, as a national bank, is deemed a citizen only of the state in which its main office is located.FN4
FN4. Appellants claim that Wells Fargo is estopped from denying that it is a citizen of California because the district court in Mount v. Wells Fargo Bank, N.A., No. CV 08–6298, 2008 WL 5046286 (C.D.Cal.2008) found that it was and therefore remanded the case to state court after Wells Fargo had removed it. In such a circumstance, 28 U.S.C. 1447(d) bars appellate review of any order remanding a case to the state court from which it was removed. See Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127–28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). According to case law from other circuits, a non-appealable remand order lacks preclusive effect and is to be adjudged on its own merits. See, e.g., Health Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703, 708 (7th Cir.1999); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 395 (5th Cir.1998); Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir.1987). Therefore, we find appellants' collateral estoppel argument unpersuasive and decline to give preclusive effect to the findings of the district court from California in an unrelated matter.
*706  Headnote Citing References National banks are “corporate entities chartered not by any State, but by the Comptroller of the Currency of the U.S. Treasury.” Wachovia Bank v. Schmidt, 546 U.S. 303, 306, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). The relevant statutory language defining the citizenship of national banks for diversity purposes appears in the second paragraph of 18 U.S.C. § 1348: “All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.” At issue is whether a national bank is “located” in the state of its principal place of business, if its main office is in a different state.
We begin by noting that every court to consider the meaning of § 1348 for purposes of jurisdiction has recognized that the term “located” is ambiguous. See Wachovia Bank, 546 U.S. at 318, 126 S.Ct. 941 (“To summarize, ‘located,’ as its appearances in the banking laws reveal ... is a chameleon word; its meaning depends on the context in and purpose for which it is used.”). Consequently, we examine the statutory history and case law in order to construe the meaning of the term “located” in § 1348.
Congress first authorized national banks in 1863, at which time they could “sue and be sued in the federal district and circuit courts solely because they were national banks, without regard to diversity, amount in controversy or the existence of a federal question in the usual sense.” Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555, 565–66, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963). In 1882, Congress eliminated “federal question” jurisdiction for any lawsuit involving a national bank and created diversity jurisdiction under the same rubric as that governing state banks. See Excelsior Funds, Inc. v. JP Morgan Chase, N.A., 470 F.Supp.2d. 312, 318 n. 8 (S.D.N.Y.2006). A subsequent amendment in 1887 provided that national banks shall “be deemed citizens of the States in which they are respectively located,” id. (quoting Act of March 3, 1887, § 4, 24 Stat. 552, 554–55). Congress retained that phrasing without alteration in the Judicial Code of 1911, which “combined two formerly discrete provisions on proceedings involving national banks,” Wachovia, 546 U.S. at 311, 126 S.Ct. 941, and retained the same phrasing once more when it amended § 1348 in 1948.
These predecessors of § 1348 demonstrated Congress's intent “to put national banks on the same footing as the banks of the state where they were located for all the purposes of the jurisdiction of the courts of the United States,” Leather Manufacturers' Nat'l Bank v. Cooper, 120 U.S. 778, 780, 7 S.Ct. 777, 30 L.Ed. 816 (1887), and to “limit the access of national banks to, and their suability in, the federal courts to the same extent to which non-national banks were so limited.” Wachovia, 546 U.S. at 311, 126 S.Ct. 941 (alterations omitted) (quoting Mercantile Nat. Bank at Dallas, 371 U.S. at 565–66, 83 S.Ct. 520).
*707 Thus, the principle of jurisdictional parity emerged from the evolving statutory framework governing national banks. The more vexing question is whether that principle remained intact after Congress adopted § 1332(c)(1) in 1958, which altered the jurisdiction of state banks and corporations, such that a corporation was “a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” (emphasis added).
Appellants, in making their case that Wells Fargo is a citizen of both South Dakota and California, rely on Firstar Bank, N.A. v. Faul, 253 F.3d 982 (7th Cir.2001) and Horton v. Bank One, N.A., 387 F.3d 426 (5th Cir.2004). Firstar Bank and Horton concluded that § 1348 must be interpreted in light of § 1332 in order to honor the principle of jurisdictional parity. See Firstar Bank, 253 F.3d at 988 (“Congress passed 28 U.S.C. 1348 against an interpretive background which assumed that national banks were to have the same access to the federal courts as state banks and corporations.”); Horton, 387 F.3d at 435 (“We construe section 1348 in light of Congress's intent to maintain jurisdictional parity between national banks on the one hand and state banks and corporations on the other.”) Yet neither statute refers to the other or to jurisdictional parity, and neither contains language giving effect to the concept.
That this approach entailed some interpretive strain was not lost on the Seventh Circuit in deciding Firstar Bank: “Interpreting 28 U.S.C. § 1348, the current version of which was promulgated in 1948, by referencing 28 U.S.C. § 1332(c)(1), enacted ten years later in 1958, might strike some as incongruous.” 253 F.3d at 993 n. 5. Nonetheless, it reasoned that “the classic judicial task of reconciling many laws enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute.” Id. (quotation omitted). Horton likewise endorsed the proposition that the traditional concept of jurisdictional parity should continue to animate our understanding of § 1348: “Because section 1348 does not have any language modifying or rejecting the interpretive understanding that came with its predecessors, this court should presume to retain and incorporate the existing interpretive backdrop [of jurisdictional parity].” 387 F.3d at 431.
Wells Fargo rejoins that Firstar Bank and Horton overreached in concluding that a policy preference for jurisdictional parity survived in the absence of clear statutory language embodying that preference. It also contends that these cases were implicitly called into question by the Supreme Court's decision in Wachovia Bank, which held that a national bank is not a citizen of every state in which it has a branch office, but is “a citizen of the State in which its main office, as set forth in its articles of association, is located.” 546 U.S. at 306, 126 S.Ct. 941. Although the Supreme Court did not consider whether a national bank is also a citizen of the state of its principal place of business, it did observe:
To achieve complete parity with state banks and other state-incorporated entities, a national banking association would have to be deemed a citizen of both the State of its main office and the State of its principal place of business. See Horton, 387 F.3d at 431, and n. 26; Firstar Bank, N. A., 253 F.3d at 993–994. Congress has prescribed that a corporation “shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). The counterpart provision for national banking associations, § 1348, however, does not refer to “principal place of business”;*708 it simply deems such associations “citizens of the States in which they are respectively located.” The absence of a “principal place of business” reference in § 1348 may be of scant practical significance for, in almost every case, as in this one, the location of a national bank's main office and of its principal place of business coincide.
Wachovia Bank, 546 U.S. at 317 n. 9, 126 S.Ct. 941.
Because Wells Fargo's main office is in a state other than that of its principal place of business, we must consider the outlier scenario identified in footnote nine of Wachovia Bank. In Excelsior Funds, Inc. v. JP Morgan Chase, N.A., the district court asserted that “the fairest reading of footnote nine is that the Supreme Court expressed skepticism over whether the term ‘located’ in § 1348 included a national bank's ‘principal place of business,’ in view of the absence of such term in the statute.” Id. at 317. The Seventh Circuit has gone further, reading Wachovia Bank to reject the proposition embraced in its Firstar Bank decision that a national bank's principal place of business is an independent basis for citizenship. In Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346 (7th Cir.2006), it concluded that “ Wachovia Bank held that national banks are citizens only of the states in which their main offices are located[.]” Id. at 348.
 Headnote Citing References Firstar Bank and Horton modeled the citizenship of national banks after that of corporations on the strength of an assumption that Congress intended to change the meaning of the former statute when it enacted the latter in order to perpetuate jurisdictional parity. We find little support for that assumption. We are of the view that “[t]he most relevant time period for determining a statutory term's meaning is the time when the statute was enacted.” Excelsior Funds, Inc., 470 F.Supp.2d at 319 (citing MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 228, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994); Perrin v. United States, 444 U.S. 37, 42–45, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)).
In 1948, when Congress last amended § 1348, it had not yet created principal-place-of-business citizenship. At that time the term “located” referred to the state in which the national bank had its main office, as designated by its articles of association. Moreover, when Congress introduced principal-place-of-business citizenship for state banks and corporations in § 1332(c)(1), it made no reference to jurisdictional parity, nor to national banks or § 1348. And nothing in § 1348 indicates that it would incorporate by reference any subsequent change in the statutes governing jurisdiction over state banks and corporations. These circumstances strongly suggest that, with the passage of § 1332(c)(1), Congress reconfigured the jurisdictional landscape of state banks and state corporations, but left that of national banks undisturbed.
 Headnote Citing References The alternative proposition—that Congress intended to alter the meaning of § 1348 retroactively when it passed § 1332(c)(1) so as to retain jurisdictional parity—is not derived from the statutory text or canons of statutory interpretation, but assumes that jurisdictional parity is an immutable principle that endures long after the statutes from which it arose have been amended and all references to it have been excised. But the statutory history suggests the opposite, as the district court's observations in Excelsior Funds, Inc. make clear:
If Congress intended to achieve jurisdictional parity between national and state banks for all times in § 1348, and thus to include principal place of business as a location for a national bank when it became a basis for citizenship *709 for a state bank, Congress could have provided for that in the statutory language. Indeed, several of § 1348's statutory predecessors contained express language that would have supported an argument for incorporating by reference subsequent changes to the citizenship of state banks or individual citizens. See, e.g., Act of July 12, 1882 (providing that the jurisdiction for suits involving national banking associations “shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States....”); Act of March 3, 1887 (“the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State”); Act of August 13, 1888 (same). However, all such language that expressly invoked the concept of parity was removed in 1911, well before the current version of the statute was enacted. See Act of March 3, 1911.
In fact, the language that expressly established parity between national banks and state banks was removed in 1887, when the language was changed to create jurisdictional parity between national banks and “individual citizens.” See Act of March 3, 1887. This change undermines the argument that the concept of jurisdictional parity underlying § 1348 is a broad concept designed to trace statutory changes to the citizenship of state banks through the term “located.” Rather, it suggests that the concept of jurisdictional parity underlying the statute is more limited, based on the then-existing understanding of citizenship, which would have been a single state for either state banks or individual citizens.
Excelsior Funds, Inc., 470 F.Supp.2d. at 319–20 (statutory citations omitted). Had Congress wished to retain jurisdictional parity in 1958, it could have unequivocally done so. It did not, and consequently the concept no longer applies. Whether it ought to be revived is a policy question for Congress, not the federal courts. We will not import a jurisdictional concept into § 1348 that was unknown at the time of its adoption. Accordingly, we hold that, pursuant to § 1348, a national bank is a citizen only of the state in which its main office is located.
This interpretation accords with the position taken by the Office of the Comptroller of the Currency during oral argument in Wachovia Bank.FN5 During an exchange between the OCC and Justice Ginsburg at the outset of the government's argument, the OCC expressly disavowed that a national bank's principle place of business provided an independent basis for citizenship:
FN5. e-Pin notes that the OCC had previously asserted that a national bank, like a corporation, is susceptible to citizenship in two states based on where its main office and principal of business are located in an interpretation letter from 2002. See Office of the Comptroller of the Currency, Interp. Ltr. No. 952, at 6 (Oct. 23, 2002). Whatever occasioned the change of heart at the OCC, we credit its statement at oral argument, quoted herein, finding it both more recent and more defensible in light of the statutory history and text of § 1348.
MR. SRINIVASAN: Thank you, Mr. Chief Justice, and may it please the Court:
For purposes of determining its State citizenship under 28 U.S.C. 1348, a national banking association is located in the State in which its main office is found, not every State in which it may maintain a branch office or other form of physical presence.
JUSTICE GINSBURG: What about its principal place of business if it's different from its main office?
*710 MR. SRINIVASAN: The—
JUSTICE GINSBURG: Principal place of business.
MR. SRINIVASAN: We—we don't think that a national banking association is a citizen of a State in which its principal place of business is found, insofar as that might be different from the State in which its main office is located.
JUSTICE GINSBURG: So the main office is it, like 1332 before the ′58 amendment.
MR. SRINIVASAN: That's right, Justice Ginsburg, and in part, that's because of the historical chronology. The word located was first used in 1887 and the current version of section 1348 was enacted in 1948, which was 10 years before the concept of principal place of business had any jurisdictional salience. That was the first time that Congress—this was in 1958—that Congress enacted a specific provision dealing with corporate citizenship, and that's the first time that we see the concept of principal place of business having relevance in the jurisdictional context.
Oral Arg. at 18:22, Wachovia Bank, 546 U.S. 303, 126 S.Ct. 941.FN6 The OCC's counsel conceded that it is not “an open and shut case” and that “one could reach the conclusion that 1332's reference to principal place of business should also apply to national banks.” Id. at 29:06. Yet, for the reasons set forth above, we conclude that the basis for doing so is attenuated, at best. Accordingly, we reject appellants' claim that Wells Fargo is a citizen of both South Dakota and California and conclude that the district court did not err in determining that it had subject-matter jurisdiction over this action.
FN6. Both the transcript and the audio recording are available at: http:// www. oyez. org/ cases/ 2000- 2009/ 2005/ 2005_ 04_ 1186/ argument.
Appellants contend that the district court erred in denying their motion to vacate or modify the arbitration award; that the panel lacked authority to grant injunctive relief and to determine inventorship of technology subject to pending patent applications; and that the district court erred in affirming the award of attorneys' fees against appellant e-Pin, LLC.
On appeal from a district court's order confirming, modifying, or vacating an arbitration award, we review findings of fact for clear error and questions of law de novo. Crawford Group, Inc. v. Holekamp, 543 F.3d 971, 976 (8th Cir.2008). “The district court affords the arbitrator's decisions an extraordinary level of deference and confirms so long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” Id. (internal quotation marks omitted). An arbitral award may be vacated only on grounds enumerated in the Federal Arbitration Act (FAA). Id. (citing Hall Street Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 583, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008)).
A. Challenge to the Grant of Injunctive Relief
 Headnote Citing References In paragraph 7(b) of the Award, the Panel ordered that appellants be “permanently restrained and enjoined from ... asserting any ownership interest in ... or using in any way the DIXE Trade Secrets.” Appellants claim that the Panel exceeded its authority in doing so and refer us to the express prohibition outlined in the dispute resolution procedures that were to govern the arbitration: “Any award in arbitration under this Section shall be limited to monetary damages and *711 shall include no injunction or direction to any party other than the direction to pay a monetary amount.” J.A. Ex. 000029 ¶ 9. Appellants contend that the Panel ignored the contract's express prohibition of injunctive relief.
The district court concluded that, because appellants had argued that an injunction should be issued against Wells Fargo during the course of the arbitration, they waived the right to challenge the grant of injunctive relief contained in the Award. It relied on the precept that “[i]f a party willingly and without reservation allows an issue to be submitted to arbitration, he cannot await the outcome and then later argue that the arbitrator lacked authority to decide the matter.” Minneapolis–St. Paul Mailers Union v. Nw. Publ'ns, Inc., 379 F.3d 502, 509 (8th Cir.2004) (quoting Slaney v. Int'l Amateur Athletic Fed'n, 244 F.3d 580, 591 (7th Cir.2001)).
Appellants deny that their references to injunctive relief constitute a concession that it was an available remedy and contend that even if it they did affirmatively request injunctive relief, the Panel lacked the authority to grant it under the governing Commercial Rules of the American Arbitration Association (AAA Rules).
Our review of the record confirms that the appellants were on notice that Wells Fargo was seeking injunctive relief and that they sought it as well. In the pre-hearing brief Wells Fargo submitted in April 2008, it asked the Panel to enjoin the appellants from continuing the alleged misappropriation of DIXE software trade secrets. Appellants did not object or challenge the Panel's authority at this time. This alone may not have been enough to abrogate the prohibition on injunctive relief in the parties' agreement, but appellants affirmatively requested injunctive relief on two separate instances later in the proceedings. First, in a section of their final briefing to the panel entitled “Appropriate Remedies,” they asked the Panel to “[d]eclare that Wells had misappropriated ... confidential trade secrets and enjoin Wells from using such confidential information and trade secrets[.]” J.A. Ex. 000384. And second, during closing argument, counsel for one of the appellants stated: “we think the evidence is clear that we've proven that [Wells Fargo] took this based on the litany that I just gave you, and that would be our preference that you find that they did and you enjoin them from using the software as it's defined in our proposed order.” J.A. 000425. Having requested that the Panel enter injunctive relief on their behalf, appellants cannot complain when the Panel decides instead to enter injunctive relief against them.
 Headnote Citing References Appellants contend that even if they did affirmatively request injunctive relief, the Panel nonetheless was precluded from granting it under Rule 43(a) of the AAA Rules. Rule 43(a) provides that “[t]he arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties....” Appellants contend that this rule bars the Panel from awarding relief prohibited by the agreement, even if such relief is requested by the parties. But their position ignores the lesson of Minneapolis–St. Paul Mailers Union, 379 F.3d at 509, which teaches that the arbitrator may expand the scope of its review based on the issues the parties submit or the arguments they advance in the proceedings. We find unpersuasive appellants' argument that Minneapolis–St. Paul Mailers Union and like cases are inapposite because they did not involve a form of relief that the parties specifically prohibited in their agreement.
We conclude that the appellants have waived their right to enforce the contractual proscription on injunctive relief by *712 failing to challenge Wells Fargo's request for such relief and by requesting it themselves. Accordingly, the district court did not err in determining that appellants had waived their right to challenge the Panel's award of injunctive relief.
A National Bank has a statute concerning suits by the gov against them but contains language re citizenship in "all other actions by or against them...":
28 U.S.C.A. § 1348
§1348. Banking association as party
The district courts shall have original jurisdiction of any civil action commenced by the United States, or by direction of any officer thereof, against any national banking association, any civil action to wind up the affairs of any such association, and any action by a banking association established in the district for which the court is held, under chapter 2 of Title 12, to enjoin the Comptroller of the Currency, or any receiver acting under his direction, as provided by such chapter.
All national banking associations shall, for the purposes of all other actions by or against them, be deemed citizens of the States in which they are respectively located.
Pursuant to 28 U.S.C. § 1348, all national banking associations are “deemed citizens of the States in which they are respectively located.” Unlike 28 U.S.C. § 1332, § 1348 does not state that a national banking association “shall be deemed to be a citizen of any State ... where it has its principal place of business....” 28 U.S.C. § 1332(c)(1). The Supreme Court has interpreted this provision to mean that a national banking association is a citizen of the state where its articles of association designate its “main office,” as opposed to being a citizen of every state in which it has a branch office. See Wachovia Bank, N.A. v. Schmidt, 546 U.S. 303, 313–314 (2006). The Supreme Court observed:
To achieve complete parity with state banks and other state-incorporated entities, a national banking association would have to be deemed a citizen of both the State of its main office and the State of its principal place of business. See Horton v. Bank One, N.A., 287 F.3d 426, 431, and n. 26 (5th Cir.2004); Firstar Bank, N.A. v. Faul, 253 F.3d 982, 993–994 (7th Cir.2001). Congress has prescribed that a corporation “shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” 28 U.S.C. § 1332(c)(1) (emphasis added). The counterpart provision for national banking associations, 1348, however, does not refer to “principal place of business”; it simply deems such associations “citizens of the States in which they are respectively located.” The absence of a “principal place of business” reference in § 1348 may be of scant practical significance for, in almost every case, as in this one, the location of a national bank's main office and of its principal place of business coincide.
*3 Schmidt, 546 U.S. at n. 9. Accordingly, the Supreme Court did not decide whether a national bank is also a citizen of the state where its principal place of business is located. The Ninth Circuit has not addressed the issue since Schmidt. The circuits which have are split. See e.g., Wells Fargo Bank N.A. v. WMR e–PIN LLC, 653 F.3d 702, 710 (8th Cir.2011) (holding that a national banking association's citizenship is solely the place where its “main office” is designated, and not its principal place of business); Horton v. Bank One, 387 F.3d 426, 436 (5th Cir.2004) (holding that the “definition of ‘located’ is limited to the national bank's principal place of business and the state listed in its organization certificate and its articles of incorporation.”); Firstar Bank v. Faul, 253 F.3d 982, 994 (7th Cir.2001) (“Therefore, we hold that for purposes of 28 U.S.C. § 1348 a national bank is ‘located’ in, and thus a citizen of, the state of its principal place of business and the state listed in its organization certificate.”).
Prior to Schmidt, however, the Ninth Circuit had held in American Surety Co. v. Bank of California, 133 F.2d 160, 162 (9th Cir.1943) that for purposes of § 1348, “the ‘States in which they (national banking associations) are respectively located’ are those states in which their principal places of business are maintained,” as opposed to every state in which the bank maintained a branch office. Thus, the American Surety court concluded that “[t]he trial court was right in holding that defendant is a citizen only of the state in which its principal place of business is located.”
A number of district courts in this district, including this Court, have previously found that for purposes of diversity jurisdiction, a national bank is a citizen of the state in which its main office is located, not where it has its principal place of business. See, e.g., Tse v. Wells Fargo Bank N.A., 2011 U.S. Dist. LEXIS 6796, *5–6 (N.D.Cal. Jan. 19, 2011) (“Footnote 9 seems to accept that in a small number of cases, the fact that corporations and national banks live by different citizenship rules will have some practical significance, however, scant.... Accordingly, the test for a national bank's citizenship under section 1348 is determined solely by the location of its main office designated in its articles of association.”); DeLeon v. Wells Fargo Bank N.A., 729 F.Supp.2d 1119, 1123–24 (N.D.Cal.2010) (“Moreover, in footnote 9, the Court recognized the imperfect parity between corporations and national banks.”); Ngoc Nguyen v. Wells Fargo Bank, N.A., 749 F.Supp.2d 1022, 1028 (N.D.Cal.2010) (holding that Wells Fargo's citizenship was in the state where its main office was, as opposed to where its principal place of business was located). These cases concluded that Wells Fargo is a citizen solely of South Dakota, not of California. These cases rest on the conclusion that American Surety cannot be reconciled with Schmidt, and that therefore, Schmidt is controlling. See, e.g., Kim v. Wells Fargo Bank, 2012 WL 3155577, at *3 (N.D.Cal. Aug. 2, 2012) (denying motion to remand: “Because American Surety left no room for another basis of citizenship, including that promulgated by the Supreme Court, American Surety conflicts with Schmidt in such a way that harmonization of the two is impossible.... Schmidt, not American Surety, is controlling here.”). Recently, however, some courts have concluded that Schmidt and American Surety can be reconciled by holding that a national bank is a citizen of both the state of its main office and the state of its principal place of business, even where they differ, based on a detailed examination of the relevant cases and legislative history. In Martinez v. Wells Fargo Bank, ––– F.Supp.2d ––––, 2013 WL 2237879 (N.D.Cal. May 21, 2013), the court undertook a thoughtful analysis of the issue of the citizenship of a national bank, including consideration of Schmidt as well as circuit authority and the legislative history of § 1348. The Martinez court concluded that Wells Fargo was a citizen of both its state of association (South Dakota) and its principal place of business (California). The Martinez court reasoned that:
*4 (3) Schmidt left open the possibility that a national bank could be deemed a citizen of the state of its principal place of business, a result consistent with American Surety. American Surety likewise did not rule out the possibility that citizenship could be located in the state of the national bank's main office as Schmidt held—that question was not presented in American Surety.
Id. at ¶ 6. The Martinez court joined and extended the analysis of the court in Taheny v. Wells Fargo Bank, 878 F.Supp.2d 1093, 1100 (E.D.Cal.2012), which held that: “ Schmidt and American Surety each identify a different possibility for citizenship—main office or principal place of business—without excluding the other possibility.” Taheny, 878 F.Supp.2d at 1100; see also Ramos v. Wells Fargo Bank, 2013 WL 2303243, at *1–2 (E.D.Cal. May 24, 2013); Ortiz v. Wells Fargo Bank, 2013 WL 1702790, at *3–4 (S.D.Cal. Apr. 19, 2013); Grace v. Wells Fargo Bank, ––– F.Supp.2d ––––, 2013 WL 663169, at *3–4 (S.D.Cal. Feb. 21, 2013).
The question of a national bank's citizenship is a difficult one in light of Schmidt and the split among the circuits on the issue. However, the weight of authority in this district is that Wells Fargo is a citizen of South Dakota only, and this Court has previously so held. Absent further direction from the Ninth Circuit or the United States Supreme Court, the Court declines to reconsider its holdings in previous cases that Wells Fargo is a citizen of South Dakota only. Accordingly, Plaintiff's Motion to Remand is denied.
Marshall v. Wells Fargo Bank
Not Reported in F.Supp.2d, 2013 WL 3287687
June 27, 2013
Our jurisdiction is based on diversity of the parties. U.S. Bank, N.A., is solely a citizen of Minnesota under the citizenship rule for “national banking associations.” 28 U.S.C. § 1348; see Wachovia Bank v. Schmidt, 546 U.S. 303, 318, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006). Carol Copeland is a citizen of Texas and the amount in controversy exceeds $75,000 due to the value of the subject property. See 28 U.S.C. § 1332.
These are the undisputed facts. On July 14, 2006, Copeland purchased a homestead in Williamson County, Texas financed with a note payable to Wells Fargo Bank, N.A. That same day she executed a deed of trust in favor of Wells Fargo, which secured her obligation to pay under the note. Copeland fell behind on her mortgage payments. In April 2010, Wells Fargo mailed Copeland a notice of default. After Copeland failed to cure the deficiency, Wells Fargo mailed her on November 11 a notice of substitute trustee sale. That document advised that the mortgage was being accelerated and that her property was to be sold at the Williamson County courthouse on December 7, 2010.
According to U.S. Bank, effective December 1, 2008, Wells Fargo assigned Copeland's note and deed of trust to U.S. Bank as trustee for Asset–Backed Pass–Through Certificates, Series 2006–WFHE3.FN1 Wells Fargo continued on as *10 the mortgage servicer, maintaining sole contact with Copeland.
FN1. This is a form of investment instrument that pools mortgages.
Copeland v. U.S. Bank Nat. Ass'n
485 Fed.Appx. 8
July 27, 2012
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association
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- Back End Duties of the CRAs: 1681i[a]:
- Credit Bureau's Duty to Provide Consumer Documentation to Furnisher: 1681i[a][B]
- Duty to Add a Consumer's Dispute Statement in Association with a Specific Account and In Connection with the Credit File/Report: 15 U.S.C. 1681i[c]
- Furnisher FCRA Liability: 15 U.S.C. 1681s-2
- Failing to Mark Contested Accounts As Disputed: 15 U.S.C. 1681s-2[a]
- Obsolescence: When Must the Credit Reportings Come Off of the Credit Report: 15 U.S.C. 1681c
- Duty to Notate Disputed Accounts As Such: 15 U.S.C. 1681c[f]
- Adverse Action Notice Rules: 15 U.S.C. 1681m and ECOA
- Credit Solicitations Are Required to be Clear and Conspicuous: 1681m[d]
- Potential Exposure For Sanctions Due to Filing Bad Faith FCRA Cases: 15 U.S.C. 1681n[c], 28 U.S.C. 1927, and Fed.R.Civ.Proc. 11
- Credit Repair Organizations Act [CROA]
- 1681g: Credit Bureaus' Duties to Provide Reports/Disclosures and to Add 100 Word Statements of the Consumer
- Affiliate Sharing Problems and Violations, 15 U.S.C. 1681s-3
- Common Credit Report Errors and Agency Misconduct
- Credit Errors
- Theft of Identity
- Mixed File Cases
- Re-Aging: Debt Collector's Efforts to Revive Obsolete Reportings
- Reinsertion of Previously Deleted Data: How and When Can It Happen?
- VIP Databases and Offline Status
- Deceased Reporting Cases
- Causation: The Crucial Link Between Breach of a Duty and Damages
- Causation to Damage [Proving Your Damages Are Related to and Caused by the Defendants
- Types of Damages, Remedies, and Awards Under the FCRA and Related State Law Claims
- Damages Under FCRA
- Punitive Damages: 15 U.S.C. 1681n
- Injunctive Relief: FCRA and State Law
- Attorneys' Fees, Litigation Expenses and Costs:
- Declaratory Relief Under the FCRA
- What is Your Potential Case Worth? Other Case Verdicts, etc.
- FCRA Jury and Bench Trial Verdicts
- Other Federal Laws Related to Credit Reporting, Data Privacy, Billing Errors and ID Theft
- FDCPA Statute And Amendments: 15 U.S.C. 1692, et. seq.
- Fair Credit Billing Act, 15 U.S.C. 1666, et. seq.
- Identity Theft and Assumption Deterrence Act of 1998, 18 U.S.C. §1028
- Home Affordable Modification Program (“HAMP”) and Home Affordable Foreclosure Alternatives Program (“HAFA”)
- State Law Claims Related to Credit Reporting, Billing Errors, Privacy Breaches and ID Theft
- Invasion of Privacy: State Law
- Defamation: State Law
- Interference With Prospective Credit: State Law
- Interference With Marital/Family Relations: State Law
- Infliction of Emotional Distress/Mental Anguish: State Law
- Data Breach Claims and Issues
- Unfair and Deceptive Trade Practices Claims: State Law
- Jurisdiction, Venue, Removal to Federal Court, Remand to State Court, and Other Pre-Trial Jurisdicti
- Removal of FCRA Cases From State Court To Federal Court
- Personal Jurisdiction and Venue in Credit Reporting Cases
- FCRA Litigation Strategies and Procedural Issues and Law
- Settlements, Releases, Prevailing Party Status, and Other Things You Need to Know If You Resolve Your Case Before Judgment
- Offers of Judgment In FCRA Litigation
- Secret Documents, Product Information and Testimony
- Choicepoint Secret Documents:
- Equifax/CSC and Affiliates Secret Documents:
- Experian Secret Documents
- Innovis Secret Documents:
- Trans Union Secret Documents
- Furnisher and Public Records Suppliers Secret Documents
- Respondeat Superior, Vicarious Liability, and Whether Others Are Liable
- Liability For Employee's FCRA Violations? Liability For FCRA Violations by Third Parties?
- FCRA Preemption, Immunity, and Qualified Immunity
- FCRA Preemption: 15 U.S.C. 1681t[b][F] and Related Discussions
- FCRA Qualified Immunity: 15 U.S.C. 1681h[e] and Related Discussions
- States/Govermental Immunity From FCRA Claims?
- Jury Voir Dire, Instructions, Verdict Forms, etc.
- Jury Instructions and Jury Verdict Forms
- Jury Questionnaires, Voir Dire, Jury Selection and Jury Bias
- Credit Card Issues
- Credit Card Liabilities
- Do You Have a Right to Bring Claims and How Long Do You Have?
- Statute Of Limitation: 15 U.S.C. 1681p
- Standing to Sue
- Credit Scores, Adverse Action Codes, and Other Report Codes
- Credit Scores, Adverse Action Codes, Risk Factors, Denial Codes and Other Scores and Codes Supplied by the Credit Reporting Agencies
- The Mechanics of Credit Reporting
- Public Records Reportings [Non-Bankruptcy]
- Bankruptcy Reporting
- Student Loan Credit Reporting
- Metro Tape [I and II]: Standardized Credit Reporting Formats Used by the Credit Industry
- Defenses Asserted by Credit Reporting Defendants
- What Law Applies? Problems Barring Use of the Court and Law
- Arbitration, Forum Selection, Choice of Law, Choice of Venue and Other Adhesionary Clauses
- Conflicts of Laws Issues in FCRA and Related State Law Issues
- Standing and Statutes of Limitations
- Statute Of Limitation: 15 U.S.C. 1681p
- FCRA Legal Forms [Suits, Discovery, etc.]
- Discovery: Interrogatories, Requests For Production of Documents, Requests to Inspect, Requests For Admissions, Deposition Notices, Subpoenas, Deposit
- FCRA Sample Pleadings: Complaints, Motions, Oppositions and Other Standard Lawsuit Filings
- Defenses Frequently Asserted by Defendants to Consumer's Actions
- FCRA Class Actions and Class Issues
- FCRA Class Actions
- Special Evidentiary Issues: What is Evidence?
- Evidentiary Issues in FCRA Cases
- Expert Witnesses, Special Issues and Daubert and Related Challenges
- Appellate Issues, Rules, Law, Etc.
- Defenses Asserted by Industry and Abuse Stories
- Defense Counsel Abuses and War Stories
- Law Outlines: Various Topics
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