The opinion of the court was delivered by: SAND
This is an action characterized by the plaintiff as a suit to recover on a guarantee. Plaintiff alleges that defendant National Westminster Bank, Ltd. agreed to guarantee payment of a commission due plaintiff from London and Lancashire Property Co., Ltd. Defendant vigorously contests plaintiff's characterization of the nature of the transaction in question, and indeed, the facts as to the underlying transaction are quite obscure.
The matter before us at this stage of the proceedings is defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, failure to join an indispensable party, and failure to state a claim upon which relief can be granted, pursuant to F.R.Civ.P. 12(b)(1), (6), and (7). Because we find a lack of subject matter jurisdiction, we do not reach the other contentions raised in defendant's motion.
Plaintiff did not specifically allege diversity jurisdiction in its complaint. It did, however, allege facts presumably in support of such jurisdiction. There being no other apparent basis of jurisdiction, if this Court has subject matter jurisdiction at all, it would be based on diversity of citizenship.
The requisites of diversity jurisdiction are set out in 28 U.S.C. § 1332; in pertinent part, it provides as follows:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 10,000 . . . and is between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties;
(c) For the purposes of this section . . . a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business . . .
Plaintiff alleges that it is a corporation organized under the laws of St. Vincent, the West Indies, with its principal place of business at Kingstown, St. Vincent. Complaint P 1. Plaintiff is thus a citizen of a foreign state for purposes of the subject matter jurisdiction of this Court, and jurisdiction must therefore be found under subsection (2) of Section 1332(a). Under that section, the other party to a litigation involving a foreign litigant must be a citizen of a state of the United States. Not only is this apparent from the face of the statute, it is also a settled matter of case law. See 1 Moore's Federal Practice P 0.75(1.-2).
Plaintiff alleges that National Westminster Bank, Ltd. ("NatWest") is a corporation organized under the laws of the United Kingdom, "having offices at 100 Wall Street, New York, New York; and that it did obtain a permanent license in the State of New York to operate a foreign branch at 100 Wall Street, New York City." Complaint PP 2, 3. The complaint makes no further allegations respecting defendant's citizenship.
We assume for purposes of this decision that § 1332(c) applies to alien corporations, I. e., that an alien corporation is deemed a citizen of both the country in which it is incorporated and the place foreign country or state of the United States in which it has its principal place of business.
The allegations of the complaint are insufficient to establish defendant's principal place of business. Defendant has expressly stated (by affidavit of the Assistant Manager of the New York branch office) that its principal place of business is in London. Affid. of D. J. Simmonds, P 3. On the present record before us, we would conclude that defendant's principal place of business is in London.
Plaintiff contends, however, that defendant's New York office is its principal place of business within the United States, and construes § 1332(c) to provide that, in light of that fact, defendant is a citizen of New York for purposes of federal diversity jurisdiction. Def.Br. in Opp. at 4. Defendant does not concede that its New York office is its principal place of business within the United States, but we find the question to be immaterial.
It is true that where an alien corporation's principal place of business world-wide is in one of the states of the United States, the trend of recent decisions, and the opinion of commentators, is to deem the corporation to be a citizen of that state. See, e. g., Bergen Shipping Co., Ltd. v. Japan Marine Services, Ltd., 386 F. Supp. 430 (S.D.N.Y.1974); Southeast Guaranty Trust Co. ...