The opinion of the court was delivered by: Bua, District Judge.
This cause comes before this court on defendant First National
Bank of Birmingham's (hereinafter FNB) motion to dismiss for
improper venue. This decision that defendant, FNB, must be
dismissed for lack of venue in this district makes it
unnecessary to consider FNB's motion for a protective order.
The venue provisions of the National Banking Act, 12 U.S.C. § 94,
provide that a National Bank may only be sued in the
district in which it is established. It is unanimously
recognized that a bank is "established" only in the federal
district that encompasses the place specified in the bank's
charter. Citizens & Southern National Bank v. Bougas,
434 U.S. 34, 39, 98 S.Ct. 88, 91, 54 L.Ed.2d 218 (1977) and cases
cited therein. FNB is established, as evidenced by its
corporate charter, in Alabama.
Both plaintiff and defendant recognize that the venue
provisions of § 94 are mandatory and exclusive. The Supreme
Court in Radzanower v. Touche, Ross & Co., 426 U.S. 148, 96
S.Ct. 1989, 48 L.Ed.2d 540 (1976) expressly held that the § 94
venue provisions control over the more liberal venue provisions
of the Securities Exchange Act, which are relied upon by
plaintiff in the instant case.
Plaintiff contends that FNB has waived its venue privilege.
Plaintiff has raised no issue of express waiver or failure to
interpose a timely objection to venue. Plaintiff, therefore,
must necessarily be relying on the concept of implied waiver.
It is well recognized that the § 94 venue privilege may be
waived. Radzanower; National Bank of America v. Associates of
Obstetrics & Female Surgery, Inc., 425 U.S. 460, 96 S.Ct.
1632, 48 L.Ed.2d 92 (1976). However, facts which will
constitute an implied waiver are rarely found. This case is no
exception. Plaintiff lengthily expounds upon FNB's conduct in
the sale of certain oil well shares, which took place, in part,
in Illinois. Plaintiff also makes much of FNB's alleged
assistance to defendant Joel Murray in two other securities
actions filed in an Illinois district court involving this same
sale.*fn1 Plaintiff contends that this sale of shares and
"participation" in the lawsuits constitutes a waiver by
defendant FNB by its § 94 venue privilege. Case law does not
support plaintiff's contention.
The standard for waiver of the § 94 venue provisions was set
forth in Buffum v. Chase National Bank of City of New York,
192 F.2d 58 (7th Cir. 1951).
Waiver is a voluntary and intentional relinquishment or
abandonment of a known existing right or privilege . . . . [I]t
may be implied as a necessary consequence of the waiver's
conduct inconsistent with an assertion of retention of the
right. . . . [The party's] 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 [its] conduct is possible.
Defendant has cited numerous cases which failed to find waiver
of the § 94 venue privilege, many on facts more conducive to a
finding of waiver than those alleged by plaintiff. It has been
held that maintaining a branch bank in another district does
not constitute a waiver. Helco, Inc. v. First National City
Bank, 470 F.2d 883 (3d Cir. 1972); United States National
Bank v. Hill, 434 F.2d 1019 (9th Cir. 1970); Tafco, Inc. v.
National Bank of Commerce of Dallas, Texas, 490 F. Supp. 132
(W.D.Pa. 1980). Additionally, Buffum held that no waiver
could be found where a foreign corporation had registered and
appointed an agent for service of process in limited
situations. Commission of fraud in another district is not a
waiver. Northside Iron & Metal Co., Inc. v. Dobson & Johnson,
Inc., 480 F.2d 798 (5th Cir. 1973). Instituting foreclosure
proceedings in another district is not a waiver. Bechtel v.
Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976).
Radzanower failed to find that violation of the Securities
Exchange Act in another district would constitute a waiver.
The only case that has been cited by plaintiff where the court
did in fact find a waiver was Stinnett v. 3rd National Bank of
Hampden City, 443 F. Supp. 1014 (D.Minn. 1978). In Stinnett,
plaintiff sued defendant bank for defamation; the publication
allegedly having been part of a complaint filed by defendant
bank against the plaintiff in a previous action. The court held
that since the action concerned arose from a previous action
voluntarily filed by the bank, there was a waiver of § 94 venue
for the purpose of the present action.
Plaintiff in the instant case relies heavily on FNB's alleged
involvement in previous actions in this district. However,
plaintiff has not alleged, nor could he, that FNB was a party
to those actions, made an appearance in those actions or in any
way put itself before the courts of this district. Thus, even
if plaintiff could show that FNB was informally involved in
those other causes, that would not constitute a voluntary
waiver as required by Buffum. FNB, not being a party, was not
in a position to move for a change of venue.
Therefore, since plaintiff has alleged no facts which, if
proved, would constitute a waiver by FNB of its § 94 venue
privilege, this court is bound by Supreme Court precedent ...