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R. W. SAWANT & CO. v. BEN KOZLOFF

January 30, 1981

R. W. SAWANT & CO., PLAINTIFF,
v.
BEN KOZLOFF, INC., STANDARD CHARTERED BANK, LTD., BAYLY, MARTIN AND FAY, INC., AND INTERNATIONAL ADJUSTERS, LTD., DEFENDANTS.



The opinion of the court was delivered by: Flaum, District Judge:

MEMORANDUM OPINION

This matter comes before the court on defendants' motions to dismiss. For the reasons set forth below, defendants' motions to dismiss are granted.

The complaint alleges, inter alia, the following. Plaintiff and defendant Ben Kozloff, Inc. ("Kozloff"), an Illinois corporation, entered into an agreement whereby plaintiff would export approximately four container loads of India shrimp to the United States for Kozloff's account, Kozloff would open irrevocable letters of credit on plaintiff's behalf covering the value of the shrimp to be shipped by plaintiff, in the event the shrimp was not admitted into the United States by the Food and Drug Administration (the "FDA") the merchandise would be returned to plaintiff or re-exported by Kozloff on plaintiff's behalf, and Kozloff would obtain insurance protecting plaintiff against the risk that the FDA would not admit the shrimp into the United States. Pursuant to the agreement, letters of credit were opened by Kozloff through defendant Standard Chartered Bank, Ltd. ("Standard"), a corporation doing banking business in Illinois, and Kozloff obtained the insurance coverage through defendant Bayly, Martin and Fay, Inc. ("Bayly"), a corporation doing business in Illinois as an insurance agency. Plaintiff exported 2,816 cartons of shrimp with a declared value of $311,693 and Kozloff made a partial down-payment in the amount of $49,280. Cartons of shrimp with a value of $55,112.80 were allowed to enter the United States. Kozloff, through Standard, Bayly and International Adjusters, Ltd. ("International"), a corporation doing business in Illinois as a salvor of distress cargo, arranged for a salvage sale of the detained cartons of shrimp for the purposes of re-export. Kozloff purchased all of the shrimp sold at the salvage sale and re-exported it to Rotterdam. As a result, plaintiff contends that Kozloff breached its contract with plaintiff; that Standard breached its fiduciary obligations to plaintiff; that plaintiff is the third-party beneficiary of a contract of insurance between Kozloff and Bayly and, therefore, that Bayly is liable to plaintiff for the full amount of any insurance proceeds; that International refuses to deliver to plaintiff the proceeds of the salvage sale; that defendants have converted the shrimp; and that Kozloff fraudulently concealed facts from plaintiff.

All defendants move that the action be dismissed on the ground that the court lacks subject matter jurisdiction because diversity of citizenship is lacking and because the case does not arise under federal law. International also moves to dismiss on the ground that venue is improper and that service of process was insufficient. Kozloff also moves to dismiss on the grounds that plaintiff has failed to join a party under rule 19, Fed.R.Civ.P., and that plaintiff has failed to state a claim upon which relief can be granted.

Defendants contend that diversity of citizenship does not exist because plaintiff is a corporation with its domicile and principal place of business in Bombay, India and Standard is incorporated under the laws of the United Kingdom and its principal place of business is in London, England. Plaintiff contends that where a corporation does substantial business in the United States or where the action involves substantial business transactions in the United States or property under the constructive control of the court, the court should focus on those activities in determining whether diversity exists and that since both federal and state statutes require foreign banks to be treated in the same way as domestic banks, Standard should be considered an Illinois corporation for purposes of determining diversity jurisdiction.

28 U.S.C. § 1332(c) provides in pertinent part:

    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 . . . .

Most courts have held that section 1332(c) does not apply to foreign corporations and, therefore, that an alien corporation is considered a citizen for purposes of diversity jurisdiction solely of the foreign state in which it is incorporated. 1 Moore's Federal Practice ¶ 0.75[3], at 709.81 (2d ed. 1980); Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3628, at 823-825 (1975). Therefore, if the court follows the general rule, Standard is considered a subject of Great Britain and diversity jurisdiction is lacking.

Even if section 1332(c) applied to alien corporations, it is unclear whether it refers to the corporation's business on a worldwide basis or to the state in the United States where its principal place of business is conducted. 1 Moore's Federal Practice ¶ 0.75[3], at 709.83 (2d ed. 1980); Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3628, at 825-827 (1975). If the court looked to Standard's business on a world-wide basis, Standard still would be considered a subject of Great Britain. If the court looked to Standard's business in the United States, it would have to determine whether Standard's principal place of business was in New York, Illinois, Florida, Texas or Washington. If section 1332(c) applies to alien corporations, the better approach is to consider a foreign corporation a citizen of the foreign state in which it is incorporated and the state or foreign state where it has its principal place of business. Id. Under this approach, since Standard is incorporated in Great Britain and its principal place of business is located in London, it should be considered a subject of Great Britain for diversity purposes. Therefore, complete diversity does not exist between plaintiff and all defendants.

The federal and state statutes relied upon by plaintiff do not require the court to conclude otherwise. First, plaintiff contends that under section 9(b) of the International Banking Act of 1978, 12 U.S.C. § 3106a, foreign banks doing business in the United States, such as Standard, must be treated in the same way as domestic banks and, therefore, that Standard should not be permitted to use the technical label of "alien" to escape jurisdiction. Section 9(b) is not a jurisdictional grant.*fn2 Rather, it requires, inter alia, every branch of a foreign bank conducting operations in the United States to comply with any federal or state law which applies to national banks or state-chartered banks.*fn3 Since national banking associations are, pursuant to 28 U.S.C. § 1348, deemed citizens of the states in which they are located,*fn4 plaintiff argues that Standard must be deemed a citizen of Illinois. Section 1348 undermines, rather than supports, plaintiff's argument. If Congress had intended section 1348 to encompass foreign banks like Standard, it would have amended that section in either the International Banking Act of 1978 or the Financial Institutions Regulatory and Interest Rate Control Act of 1978, Pub. L.No. 95-630, §§ 101-921, 92 Stat. 3641-3741, which added section 9(b). Therefore, the International Banking Act of 1978 does not subject foreign banks to federal diversity suits where the plaintiff is an alien also.

Second, plaintiff contends that according to section 3 of the Foreign Banking Office Act, Ill.Rev.Stat. ch. 161/2;, § 503, and section 5 of the Illinois Banking Act, Ill.Rev.Stat. ch. 161/2;, § 105, Standard must be considered an Illinois resident. Section 3 of the Foreign Banking Office Act permits foreign banks to conduct banking business in Illinois with the same rights and privileges as Illinois banks and subject to the same duties, restrictions, penalties and liabilities imposed by the Illinois Banking Act, Ill. Rev. Stat. ch. 161/2;, §§ 101-182, upon Illinois banks.*fn5 Section 5 of the Illinois Banking Act states that banks organized under the Act have the power, inter alia, to sue and be sued and to complain and defend in their corporate name.*fn6 Section 3 of the Foreign Banking Office Act and section 5 of the Illinois Banking Act subject foreign banks to the jurisdiction of the Illinois courts. They have nothing to do with the criteria for diversity jurisdiction. Therefore, Standard is not considered an Illinois resident for purposes of diversity and diversity of citizenship is lacking.

If subject matter jurisdiction is found to be lacking, plaintiff asks the court to dismiss Standard and not the entire cause of action. When the party whose presence would destroy jurisdiction is not indispensable, it may be possible for plaintiff to have the action dismissed as to that party and thereby preserve diversity of citizenship. However, where a party is proper, as, for example, a joint tortfeasor, and in fact has been joined, that party's citizenship must be considered. Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction § 3606, at 627 (1975). Here count two, which alleges breach of fiduciary duty, and count five, which alleges conversion, concern Standard. Therefore, the court deems it appropriate to dismiss the entire action if federal question jurisdiction is not present.

Defendants contend that the case does not arise under federal law because the requirements of 12 U.S.C. § 632 have not been alleged, i.e., a corporation organized under the laws of the United States and an action arising out of a transaction involving international banking. Plaintiff contends that each of the defendants is a corporation organized under the laws of the United States and that, when section 632 is read in conjunction with the ...


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