Swygert, Chief Judge, Stevens, Circuit Judge, and Eschbach,*fn* District Judge.
The question presented by this case is whether the district court properly dismissed this action under Rule 19, Fed.R.Civ.P., which provides that an action may be dismissed if a person who cannot be joined is regarded as indispensable under the criteria set forth in the rule.
In December 1967, defendant Martin bought $20,630 worth of stock through his broker, Smith, Barney & Co., Morgan Guaranty Trust Company, plaintiff herein, acted for Smith, Barney in transferring the stock and collecting payment. The stock was delivered through Martin's bank, Civic Center Bank, in Chicago. Payment was made by Civic Center through First National Bank of Chicago. First National wired Morgan to charge its account $20,630 and credit Civic Center. Morgan responded that Civic Center had no account with it, and First National then wired that the $20,630 should be paid to Smith, Barney for credit to the account of Martin. The money was so paid and credited and Morgan charged First National's account.
Several days later Morgan received another wire (hereafter referred to as the liquidation wire) from First National which referred to one of the earlier wires and which directed that $20,630 should be charged to its account and applied to liquidate the security drafts under the stock delivery and collection arrangement. Morgan, apparently without checking the earlier transaction, charged First National's account and liquidated the security drafts. When First National discovered that its account had been charged twice, it notified Morgan. Morgan corrected its mistake and immediately sought to recover the $20,630 which it paid to Martin through Smith, Barney. That money was the payment for the stock delivered to Martin by Morgan through Civic Center, and it should have been retained by Morgan in liquidation of the security drafts. Martin had already closed his account with Smith, Barney and had withdrawn the entire balance, including the $20,630. After other attempts to collect the money from Martin failed, Morgan filed this diversity action against Martin to recover the money.
Martin argues that he could not be obligated to Morgan because there was no privity of contract between him and Morgan. We are satisfied, however, as was the district court, that under Illinois law Morgan has stated a claim upon which relief can be granted.*fn1
We need not detail here the various motions, renewed motions, orders, orders on reconsideration, and other documents in the record. It is sufficient to note that in its order of January 19, 1971 (reaffirmed on reconsideration, March 15, 1971), the district court dismissed the action under Rule 19, Fed.R.Civ.P., on the ground that Smith, Barney was an "indispensable" party defendant who could not be joined because its joinder would divest the court of diversity jurisdiction.*fn2
Plaintiff filed a motion for summary judgment and a renewed motion for summary judgment. Several affidavits were filed, including an affidavit of defendant Martin.
Martin admits receipt of the stock and does not deny that he received a sum equivalent to the $20,630 plus other credits in his account when he closed the account with Smith, Barney. He claims he dealt solely with Smith, Barney and never with Morgan, and that he had no knowledge that Morgan claimed any of the money in his account. He asserts that he had many transactions with Smith, Barney and that he had no way of knowing if the $20,630 he received was the same $20,630 paid by Morgan to Smith, Barney for credit to his account. He thus contends that he is liable, if at all, only to Smith, Barney and that Morgan, if it is to recover at all, must proceed against Smith, Barney. Martin does not offer any explanation for the $20,630, such as telling us of some other transaction that would explain this credit to his account. An affidavit of a vice president of Smith, Barney states that the payment received for credit to Martin's account was so credited and that when Martin closed his account it reflected only two transactions -- the $20,630 credit and a $1,875 credit for a rescinded transaction. Martin, in fact, apparently admits that he is not entitled to the money because his argument that Smith, Barney is an indispensable party is based on the theory that (1) Smith, Barney might sue him for the $20,630 and (2) he could offset the $20,630 against what he claims Smith, Barney owes him -- which he would seek in a counterclaim or cross-claim -- as damages for securities law violations in connection with another transaction. Clearly, however, he could not reasonably assume that Smith, Barney miraculously paid him, without contest or even explanation, $20,630 toward a claim as yet unmade.
We turn now to rule 19, Fed.R.Civ.P.*fn3 Subdivision (b) of that rule provides that if a person described in subdivision (a) (1)-(2) cannot be joined, "the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." The factors to be considered in making that decision are set forth. Before it is necessary to consider those factors, however, it must first be determined if Smith, Barney is "a person as described in subdivision (a) (1)-(2)."
Subdivision (a) (1)-(2) provides that a person should be joined if:
"(1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest."
The district court did not detail the reasons for his conclusion.*fn4 However, given the facts of the case and the contentions of defendant, it would appear that subdivision (a) (2) (ii) is the most relevant. In essence, defendant argues that he might be sued by Smith, Barney, and would therefore be "subject to a substantial risk of ...