The opinion of the court was delivered by: LEIBELL
The defendant, appearing specially for the purposes of this motion, has moved-
'for an order vacating and setting aside the purported service of the summons herein on Bank of America National Trust and Savings Association, and dismissing the complaint on the ground that said defendant is a National Banking and Association, organized and existing under and by virtue of the National Banking Laws of the United States, and has its principal office and place of business in the City of San Francisco, California, and, pursuant to law, cannot be sued in any court not embracing within its territorial jurisdiction the City of San Francisco, California.
'Please take further notice that on the summons and complaint herein we shall move at the same time and place for an order vacating and setting aside the purported service of the summons herein, and dismissing the complaint on the ground that the United States District Court for the Southern District of New York has no jurisdiction of the plaintiff herein and has no 'jurisdiction of the cause of action herein.'
Annexed to the notice of motion are photostats of two certificates by the United States Comptroller of Currency: (1) a certificate dated March 1, 1927, that 'Bank of Italy National Trust and Savings Association in The City of San Francisco in the County of San Francisco and State of California is authorized to commence the business of Banking as provided in section 5169 of the Revised Statutes of the United States'
; and (2) a certificate dated November 1, 1930 that 'Bank of Italy National Trust and Savings Association, located in the City of San Francisco, in the County of San Francisco and State of California' and 'Bank of America of California, located in the City of San Francisco, in the County of San Francisco and, State of California' having complied with the statute, 40 Sat. 1043, entitled 'An Act To provide for the consolidation of national banking associations * * * '
'have been consolidated under the charter of Bank of Italy National Trust and Savings Association and under the corporate title of 'Bank of America National Trust and Savings Association'.' This certificate of November 1, 1940 recites the fact that 'on the date of consolidation the consolidated bank has 353 branches, all located in the State of California.'
Title 12 U.S.C.A. § 81 provides that:-
'The general business of each national banking association shall be transacted in the place specified in its organization certificate and in the branch or branches, if any, established or maintained by it in accordance with the provisions of section 36 of this title.'
The Marshal's return in the case at bar states that he served the summons on the defendant at 44 Wall Street, New York, N.Y., by 'delivering to and leaving a copy thereof, together with a copy of the complaint with Francis X. Scufaro, Asst. Vice Pres.'
In its answering brief the defendant states:-
'The defendant is not doing business in the State of New York and has no office in that State of the transaction of business. As the Court will well appreciate, it is absolutely illegal and ultra vires for a national banking association to have any branch offices (except foreign branches) in any State of the Union other than that in which it is incorporated. 12 U.S.C.A. §§ 81 and 36.)
The defendant has a New York representative and this New York representative maintains an office at 44 Wall Street, New York City. No banking business of any kind whatever is done at such office. No deposits are received, no checks are cashed, no loans are made, and no letters of credit are issued. The office is merely for the convenience of the stockholders and customers of the bank and for giving incidental aid to it in the transaction of its business in California. Therefore, even if Sec. 1391 of the new Judicial Code (28 U.S.C.A.) were applicable, which it is not, the plaintiff's premise that the defendant is either licensed to do business or is doing business in the Southern District of New York is entirely erroneous.'
Jurisdiction and venue, in relation to suits by or against national banks, were succinctly explained by Mr. Justice Black in Cope v. Anderson, 331 U.S. 461, at page 468, 67 S. Ct. 1340, 91 L. Ed. 1602, as follows:-
'For jurisdictional purposes, a national bank is a 'citizen' of the state in which it is established or located, 28 U.S.C.A. § 41(16), 28 U.S.C.A. § 41(16), and in that district alone can it be sued. 12 U.S.C.A. § 94, 12 U.S.C.A. § 94.' See also Leonardi v. Chase National Bank, 2 Cir., 81 F.2d 19, certiorari denied 298 U.S. 677, 56 S. Ct. 941, 80 L. Ed. 1398.
Title 28 U.S.C.A. § 41(16) was repealed in June 1948 when Title 28 was revised (effective September 1, 1948) and the provisions of old Sec. 41(16) are not found ...