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PAPADOPOULOS v. CHASE MANHATTAN BANK

United States District Court, Southern District of New York


July 12, 1990

PHILIP PAPADOPOULOS AND UNITED GENERAL TOURIST S.A., PLAINTIFFS,
v.
CHASE MANHATTAN BANK, N.A., BANKERS TRUST COMPANY, GENOZENTRALBANK STUTTGART - GENOSSENSCHAFTLICHE ZENTRALBANK AG, VOLKSBANK ZUFFENHAUSEN EG, AND NATIONAL WESTMINSTER BANK, PLC, DEFENDANTS.

The opinion of the court was delivered by: Whitman Knapp, District Judge.

MEMORANDUM & ORDER

This action arises out of the dishonor of a draft made payable to plaintiff Philip Papadopoulos. Defendant National Westminster Bank, PLC ("NatWest") moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) for want of subject matter jurisdiction. Defendant Chase Manhattan Bank, N.A. ("Chase") moves for summary judgment on plaintiff's claims against it. For reasons which follow, we grant the motions and dismiss the action.

BACKGROUND

The pertinent facts are not in dispute. In December of 1987, the National Bank of Greece agreed to sell to plaintiff*fn1 a cruise ship, the M/V Castallea, for $7.5 million, but required that plaintiff provide by January 15, 1988 a bank guarantee in the amount of $750,000. At the time, plaintiff had approximately $600,000 available in his account at NatWest's Athens branch. To obtain the balance necessary for the guarantee, plaintiff instructed Seeadler Seetpirostol GmbH ("Seeadler"), a travel company with which plaintiff had an ongoing business relationship, and its subsidiary, Weaver Maritime Inc. ("Weaver"), to forward $150,000 owed to him personally. A representative of Seeadler and Weaver remitted the sum to Volksbank Zuffenhausen EG ("Volksbank"), a bank located in Stuttgart, Germany, and instructed Volksbank to issue a draft payable to plaintiff. In compliance with this instruction, Volksbank, with appropriate authorization, issued a draft drawn on the New York account at Chase of Genozentralbank Stuttgart-Genossenschafliche Zentralbank AG ("GZB"), another Stuttgart-based bank. The draft was personally delivered to plaintiff, who, on December 21, 1987, deposited the draft in his account at NatWest's Athens branch.

NatWest then sent the draft to Bankers Trust Company ("Bankers Trust"), which on December 23 presented it to Chase for payment. On the following day, Chase — pursuant to an agreement with its customer, GZB — dishonored the draft and promptly returned it to Bankers Trust. The agreement, which had been entered into in 1985 to protect against payment of fraudulent drafts, required that Chase dishonor and return upon presentment any draft in excess of $25,000 for which it had not first received a telex from GZB authorizing it to make that specific payment. Chase had received no such pre-presentment authorization, and, on December 28, sent to GZB a telex explaining why the draft had been returned unpaid.

Thereafter, several telexes were sent among the defendant banks. On December 29, Bankers Trust sent a telex to NatWest erroneously stating that the draft had been returned unpaid for insufficient funds. On January 4, NatWest sent "top urgent" telexes to Bankers Trust and Chase asking that the two banks investigate. On the same day, GZB authorized Chase to pay the draft, which, of course, Chase no longer had.

On January 15, the date by which plaintiff was required to provide the guarantee, NatWest-Athens mailed the draft back to plaintiff. The draft never was represented to Chase for payment and plaintiff lost his option to purchase the ship.

In 1989, plaintiff commenced this action against Volksbank, GZB, NatWest, Bankers Trust*fn2 and Chase, seeking to recover $6 million for economic injury allegedly suffered as a result of the nonpayment of the draft. Both Chase and NatWest asserted cross-claims for contribution and indemnification against each other as well as against the other defendant banks. Volksbank and GZB then moved to dismiss for, inter alia, lack of personal jurisdiction and forum non conveniens. Their motion has been held in abeyance pending resolution of the subject matter jurisdiction issues raised by the motions we now decide.

DISCUSSION

Plaintiff concedes that 12 U.S.C. § 632 provides the only possible basis for our assertion of jurisdiction over this action. In substance, the relevant provision of § 632 provides federal district courts with jurisdiction over actions (1) which arise out of transactions involving international or foreign banking, and (2) to which a corporation organized under the laws of the United States is a party.*fn3 Plaintiff contends that § 632 jurisdiction exists because the action arises out of an international banking transaction, and because Chase, a federally-chartered national banking association, is a defendant potentially liable to him.*fn4 Defendant NatWest contends that plaintiff's claims against Chase are without legal basis, and that Chase is therefore a party in name only. Consequently, NatWest asserts, § 632 jurisdiction does not lie.

Thus, the existence of subject matter jurisdiction turns on the viability of plaintiff's claims against Chase, which, of course, is also the focus of Chase's motion for summary judgment. Plaintiff concedes that Articles 3 and 4 of the Uniform Commercial Code*fn5 afford him as payee no cause of action against Chase, the payor bank.*fn6 Plaintiff relies instead on "window" provisions of the Code, which in substance provide that the absence of a Code remedy does not foreclose recovery at common law.*fn7

Plaintiff, however, recognizes that he cannot defeat Chase's summary judgment motion merely by demonstrating that the Uniform Commercial Code does not preempt his claims against Chase. He therefore cites Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, Strauss v. Belle Realty Co. (1985) 65 N.Y.2d 399, 492 N.Y.S.2d 555, 482 N.E.2d 34, White v. Guarente (1977) 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315, Cullen v. BMW of North America, Inc. (E.D.N.Y.1982) 531 F. Supp. 555, rev'd, (2d Cir. 1982) 691 F.2d 1097, cert. denied, (1983) 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948, and David Graubart, Inc. v. Bank Leumi Trust Company (1979) 48 N.Y.2d 554, 423 N.Y.S.2d 899, 399 N.E.2d 930 from which he asks us to infer that Chase had some common law obligation to him. None of the cases supports such an inference.

Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 162 N.E. 99 was a suit by a passenger against a railroad. Assuming the existence of an obligation of due care, the court was concerned only with the question whether the particular accident was foreseeable.

In Strauss v. Belle Realty Co. (1985) 65 N.Y.2d 399, 492 N YS.2d 555, 482 N.E.2d 34, the court concluded that Con Edison, despite its negligent failure to provide electricity as required by its agreement with the owner of an apartment building, was not answerable to a tenant who had sustained injuries in a common area of the building during a blackout.

White v. Guarente (1977) 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 involved a professional malpractice claim against an accounting firm that had been retained by a limited partnership to perform auditing and tax return services required by the partnership agreement. The court concluded that, on the facts before it, the firm could be held liable to one of the limited partners who was "one of a settled and particularized class among the members of which the [financial] report would be circulated for the specific purpose of fulfilling the limited partnership agreed upon arrangement." Id. at 363, 401 N.Y.S.2d at 478, 372 N.E.2d at 320.

As to Cullen v. BMW of North America, Inc. (E.D.N.Y.1982) 531 F. Supp. 555, rev'd, (2d Cir. 1982) 691 F.2d 1097, cert. denied, (1983) 460 U.S. 1070, 103 S.Ct. 1525, 75 L.Ed.2d 948, the plaintiff referred us only to the opinion of the district court which was subsequently reversed by the Second Circuit.

Finally, David Graubart, Inc. v. Bank Leumi Trust Company (1979) 48 N.Y.2d 554, 423 N.Y.S.2d 899, 399 N.E.2d 930 involved a payor bank's liability for retaining, at the payee's request, a redeposited check beyond the midnight deadline imposed by § 4-302 of the Uniform Commercial Code. In deciding that, on the particular facts before it, the payee's request absolved the bank of statutory liability, the court had no occasion to consider whether or not common law liability existed outside the Code.

In brief, in none of the cases cited was the court called upon to decide or even to consider whether a payor bank could be held liable to a payee at common law for returning a draft unpaid pursuant to its agreement with its customer. We accordingly grant Chase's motion for summary judgment. Since this decision renders 12 U.S.C. § 632 an inadequate basis for our assertion of jurisdiction, we grant Nat-West's motion to dismiss the complaint for lack of subject matter jurisdiction.

CONCLUSION

Defendant Chase Manhattan Bank, N.A.'s motion for summary judgment is granted. National Westminster Bank's motion to dismiss the complaint for want of subject matter jurisdiction is granted.

SO ORDERED.


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