The opinion of the court was delivered by: MCLAUGHLIN
This action is brought by Alpha Hermetic, Inc. ("Alpha Hermetic"), a New Jersey corporation currently operating out of offices in North Bayshore, New York. Joining as co-plaintiffs are three individual and one corporate guarantor of certain Alpha Hermetic obligations. Although the individual plaintiffs now reside within this district, and the corporate guarantor does business here, when the cause of action accrued, Alpha Hermetic was operating out of offices in New Jersey and the events giving rise to this action also occurred in New Jersey.
Plaintiffs allege that the defendants, acting through the First National State Bank of New Jersey (the "Bank"), charged an excessive rate of interest on a loan. Then, when Alpha Hermetic defaulted, the Bank commenced four separate actions (one in New Jersey and three in New York) in an attempt to liquidate collateral pledged by Alpha Hermetic and the other plaintiffs.
Plaintiffs now sue for legal and equitable relief on the theory that the defendants induced them into a credit relationship under a Small Business Administration ("SBA") loan program and then, in violation of plaintiffs' civil rights, failed to administer the loan in accordance with federal law. 42 U.S.C. § 1983. The Bank, the named individual defendants, and the regional office of the SBA, are all located or reside in New Jersey. The Bank now moves to dismiss, or in the alternative for a change of venue, pursuant to Section 94 of the National Bank Act.
Section 94 of the National Bank Act provides:
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.
12 U.S.C. § 94 (emphasis added).
It is axiomatic that this provision is mandatory and that a national bank must be sued in the district in which it is established.
See e.g., Citizens & Southern Nat'l Bank v. Bougas, 434 U.S. 35, 38, 98 S. Ct. 88, 90, 54 L. Ed. 2d 218 (1977); National Bank of North America v. Associates of Obstetrics and Female Surgery, 425 U.S. 460, 461-62, 96 S. Ct. 1632, 1633, 48 L. Ed. 2d 92 (1976); Mercantile Nat'l Bank v. Langdeau, 371 U.S. 555, 561, 83 S. Ct. 520, 523, 9 L. Ed. 2d 523 (1963). While the venue provision may be waived (Id. at 561 & n.12, 83 S. Ct. at 523 n.12; Charlotte Nat'l Bank v. Morgan, 132 U.S. 141, 145, 10 S. Ct. 37, 38, 33 L. Ed. 282 (1889)), the vast majority of federal and state courts, including the Second Circuit, have interpreted waiver narrowly. See, e.g., Klein v. Bower, 421 F.2d 338, 342 (2d Cir. 1970). See generally Steinberg, Waiver of Venue Under the National Bank Act: Preferential Treatment for National Banks, 62 Iowa L.Rev. 129, 130-31 (1976). The standard that determines whether the defendant has waived its privilege is set forth in Buffum v. Chase Nat'l Bank of New York, 192 F.2d 58, 60-61 (7th Cir. 1951), cert. denied, 342 U.S. 944, 72 S. Ct. 558, 96 L. Ed. 702 (1952):
Waiver is a voluntary and intentional relinquishment or abandonment of a known existing right or privilege, which, except for such waiver, would have been enjoyed.... It may be expressed formally or it may be implied as a necessary consequence of the waiver's conduct inconsistent with an assertion of retention of the right. It must be proved by the party relying upon it. And if the only proof of intention to waive rests on what a party does or forbears to do, his act or omissions to act should be so manifestly consistent with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of his conduct is possible.
that the Bank has waived its section 94 privilege to be sued only in New Jersey (1) by doing business in the State of New York; (2) by appointing an agent for service of process in New York; (3) by commencing lawsuits in the State of New York.
1. Doing Business in New York
The Bank maintains an office at 2 World Trade Tower in Manhattan for the limited purposes of transmitting shipping documents, and export-import documents, of providing a location for a meeting place for New York customers, and a messenger service between New York and New Jersey (see Affidavit of Edward C. Cerny, III, P 5, dated December 4, 1981). Assuming, without deciding, that this constitutes doing business, nevertheless "merely doing business in a foreign district ... does not constitute a waiver of the privilege." Northside Iron & Metal Co. v. Dobson & Johnson Inc., 480 F.2d 798, 800 (5th Cir. 1973); Klein v. Bower, 421 F.2d at 342; Buffum v. Chase Nat'l Bank of City of New York, 192 F.2d at 61; Sulil Realty Corp. v. Rye Motors, Inc., 45 Misc.2d 458, 257 N.Y.S.2d 111 (Westchester Co. Ct.), aff'd, 47 Misc.2d 715, 262 N.Y.S.2d 989 (App. Term 1965).
Even if the Bank had established a fully-operating branch at its location in 2 World Trade Tower, venue would not be proper in this district. Leonardi v. Chase Nat'l Bank of the City of New York, 81 F.2d 19, 21-22 (2d Cir. 1936). See Citizens & Southern Nat'l Bank v. Bougas, 434 U.S. at 43-45, 98 S. Ct. at 93-94. In Citizens & Southern, the Supreme Court held that, for venue purposes in a state action, a bank is "located" in a county where it has a branch office. Its decision, however, was based on the distinction between the words "established" (used for the purpose of federal venue) and "located" (used for state venue) in section 94.