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Klein v. Bower

decided: January 23, 1970.

ERNEST KLEIN, PLAINTIFF-APPELLANT,
v.
JOHN J. BOWER, WILLIAM F. O'CONNOR, BOWER, O'CONNOR & TAYLOR, A PARTNERSHIP, MARY ANNA MACUKAS, CAROLINE SCHIFF, MARY ANN OATES, JEROME ACKERMAN, NATIONAL BANK OF NORTH AMERICA, BELGIAN-AMERICAN BANKING CORPORATION, CHRISTIAN HISLAIRE AND NORTHEASTERN PENNSYLVANIA NATIONAL BANK & TRUST CO., DEFENDANTS-APPELLEES, AND JACQUES FISHER, SUSAN FISHER, ANDREW BEKEFI, LILIAN BEKEFI, SECURITIES CLEARANCE CORP., PAUL SANDRISSER AND AMALGAMATED BANK OF NEW YORK, DEFENDANTS



Waterman, Friendly and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

This action was brought by appellant Klein against various banks and individuals (including secretaries and stenographers of defendant law firm), a law partnership and a factor for damages and other relief arising out of loans he obtained using registered securities as collateral. Appellant alleged six "causes of action": the first charging violations of the margin requirements on loans secured by securities set by the Board of Governors of the Federal Reserve, Regulations T and U, 12 C.F.R. §§ 220, 221 (1969), pursuant to section 7 of the Securities Exchange Act of 1934, 15 U.S.C. § 78g (1964);*fn1 the second charging conversion of his collateral securities; the third praying for an accounting due to alleged overcharges and omitted credits on his loan account; the fourth charging illegal transportation in interstate commerce of his collateral securities; the fifth praying for rescission of the loan transactions and return of his securities due to alleged fraudulent representations by various defendants which induced him to enter the transactions, and due to subsequent alleged breaches of contract terms; and the sixth alleging a conspiracy with fraud and malice by defendants and praying for punitive damages. On motions by defendants under Rules 12 (b) and 56 of the Federal Rules of Civil Procedure to dismiss and for summary judgment on various grounds, Judge Tyler of the United States District Court for the Southern District of New York dismissed appellant's actions on the grounds that the first charge was untimely under the applicable statute of limitations, and that the other charges were barred by collateral estoppel, due to a prior litigation in the courts of New York state. As to one appellee here, Northeastern Pennsylvania National Bank & Trust Co. ["NPNB"], Judge Tyler dismissed the complaint on the ground that venue was improperly laid in the Southern District of New York. From these dismissals appellant appeals against many (but not all) of the defendants below. We agree that venue was improperly laid as to NPNB and we affirm the other dismissals by the court below on the ground that all of appellant's causes of action were barred by applicable statutes of limitations. We need not consider the other argued bases for affirmance.

The facts so far as relevant to this appeal are as follows. In early October, 1958, appellant arranged with a factor, Securities Clearance Corp. ["SCC"], to borrow money pledging his securities as collateral. Appellant agreed to maintain his collateral so that the balance on the outstanding loan would not exceed 97% of the market value of the pledged securities. Under the agreement, SCC was apparently permitted to repledge appellant's securities for loans not to exceed appellant's outstanding debt. Appellant's pledged securities, if not repledged, were to be held for his account with SCC at the Commercial Bank of North America, now National Bank of North America ["CBNA"]. One Fisher, an officer of SCC, allegedly told appellant that SCC had $5 million available for loans.

Between October 3, 1958 and November 21, 1958, appellant borrowed large sums from SCC on notes secured by various registered securities which he delivered to CBNA. According to appellant's figures, on November 21, 1958, the market value of the pledged securities was $672,150 and the outstanding loan was $639,699.10. According to appellant, during November, 1958, SCC instructed CBNA to transfer some of appellant's pledged securities to the personal accounts of several of the defendants, and some of these defendants either sold the securities or repledged them as collateral on personal loans from several banks including NPNB, Belgian-American Banking Corp. ["B-A"], and Amalgamated Bank of New York ["ABNY"]. The amounts borrowed by the sundry individual defendants on the repledged securities allegedly were in excess of appellant's outstanding debt. Moreover, the loans on the repledged securities allegedly had an unlawfully narrow margin under the existing margin regulations.

Around November 21, 1958, appellant apparently discovered some of these alleged irregularities, and after negotiation with SCC it was agreed that appellant should phase out his account with SCC by paying off his notes and receiving in return his pledged securities. SCC agreed to instruct the banks holding repledged securities to deliver the securities against appellant's payment. Appellant contends that he thereafter tendered full payment but that B-A and ABNY refused to release the repledged securities.

Defendants claim that in the latter half of November, 1958, the market value of appellant's collateral fell and that SCC requested appellant to bring up his collateral so as to restore the 3% margin. On November 25 and 26, 1958, upon appellant's alleged failure to bring up his collateral, SCC ordered the sale of all of appellant's securities except several IT&T bonds worth $3,000. On December 4, 1958, SCC sent appellant the remaining bonds and a check for $3,029.25 closing out what remained in appellant's account.

On October 2, 1961, appellant commenced a suit in the Supreme Court of New York, New York County, against SCC, B-A, CBNA, ABNY, and several of the individual defendants in the instant action. The state action alleged conversion of appellant's securities, fraud and intentional violation of agreements, and sought damages and the return of the securities. After extensive discovery, the case went to trial and at the end of appellant's case judgment was entered against appellant, dismissing appellant's complaint and taxing defendants' costs against him. The Appellate Division affirmed and the New York Court of Appeals denied leave to appeal. Klein v. Securities Clearance Corp., Index No. 18651/1961 (N.Y.Sup.Ct., N.Y.County, April 29, 1966), aff'd 27 A.D.2d 801, 280 N.Y.S.2d 348, motion for leave to appeal denied, 20 N.Y.2d 645, 285 N.Y.S.2d 1025, 231 N.E.2d 788 (1967). Thereafter appellant commenced this suit by filing his lengthy complaint on July 1, 1968, nearly ten years after the transactions in question had occurred.

I. Venue

First we will consider the venue question as to appellee NPNB. NPNB is a national banking association established under the National Bank Act of 1864, 12 U.S.C. § 21 et seq. (1945) which has its principal office in Scranton, Pennsylvania. Although NPNB has no offices outside of Pennsylvania, appellant claimed below that it was doing business in New York through an agent, the Hanover Bank. New York law provides for personal jurisdiction over non-domiciliaries if they transact business in the state through an agent.*fn2 However, section 94 of the National Bank Act, 12 U.S.C. § 94 (1945) limits the venue in state and federal court suits against national banks created thereunder.*fn3 Although this provision could be read as not excluding suits in other locations, the Supreme Court has held that the section permits suits against national banking associations in state or local courts only in the county in which they are located. Mercantile Nat'l Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S. Ct. 520, 9 L. Ed. 2d 523 (1963). Therefore to the extent appellant's action is founded in state law and the New York jurisdictional statute, appellant would only have venue in a state or federal court in the county or district in which NPNB is located or established. Michigan Nat'l Bank v. Robertson, 372 U.S. 591, 83 S. Ct. 914, 9 L. Ed. 2d 961 (1963). To the extent appellant's action against NPNB is grounded in the Securities Exchange Act of 1934 and the margin regulations pursuant thereto, he might seek to apply the broader venue provisions in section 27 of that Act. 15 U.S.C. § 78aa (1963). However, this court recently held in a suit under § 10(b) of the Securities Exchange Act of 1934 that Congress had not intended to carve out a special exception for securities actions to the narrow venue provisions of the National Bank Act § 94. Bruns, Nordeman & Co. v. American Nat'l Bank & Trust Co., 394 F.2d 300 (2d Cir.), cert. denied, 393 U.S. 855, 89 S. Ct. 97, 21 L. Ed. 2d 125 (1968). Although the narrow venue of the National Bank Act imposes inconveniences on plaintiffs, especially in cases of multiple defendants, the remedy for the situation must be provided by Congress. See ALI, Study of Division of Jurisdiction between State and Federal Courts 412-13 (1969). The court properly dismissed appellant's action against NPNB for lack of venue.

II. Statute of Limitations

Appellant's action seems to be based partly on federal law and partly on state law. Several of his "causes of action" appear to be premised entirely on state law: cause number two on conversion of his securities; cause number three for an accounting on alleged overcharges for interest and commissions, etc. and alleged omitted credits; and cause number five for rescission on alleged false representations and intentional breach of contractual obligations. Others appear to be based entirely on federal law: cause number one on alleged violations of securities regulations on margin lending; and cause number four on illegal interstate transportation of securities. Cause number six praying for punitive damages seems to be based on the other causes, adding that the actions alleged were committed with malice.*fn4

The federal aspects of appellant's action are founded in an alleged violation of the margin requirements in Regulations T and U pursuant to 15 U.S.C. § 78g (1964). Since section 7 of the Securities Exchange Act of 1934 does not provide its own statute of limitations (since it does not explicitly provide for a private right of action) we must turn to state laws for the applicable limitations period.*fn5 The issue here is which New York limitations period should apply as to appellant's causes premised on a violation of federal margin requirements.

There are three possibly applicable sections in New York law. First, an action based on fraud must be commenced within six years, computed from the time due diligence would have uncovered the fraud. (N.Y.C.P.A. § 48(5) (1939)) N.Y.Civil Practice Law & Rules [CPLR] §§ 213(6), 206(c) (McKinney 1963) (for action accruing prior to 1963; see § 218(b)), as amended, CPLR § 213 (9) (McKinney Supp.1969). Second, an action to recover on a liability created or imposed by statute except as otherwise provided must be brought within three years. CPLR § 214(2). Third, a ten-year period is applicable to general equity ...


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