Burns International, Inc. v. Western Savings & Loan Ass'n

978 F.3d 533
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 30, 1992
DocketNo. 90-15180
StatusPublished

This text of 978 F.3d 533 (Burns International, Inc. v. Western Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burns International, Inc. v. Western Savings & Loan Ass'n, 978 F.3d 533 (9th Cir. 1992).

Opinion

ALARCON, Circuit Judge:

Burns International, Inc., W.I.O., Inc., Robert Burns, and Paige Burns (collectively “the Burnses”) appeal from the dismissal of their complaint against Gary Driggs and Kay Driggs (“the Driggses”.) for lack of subject matter jurisdiction.

We must determine whether an action for fraud and negligent misrepresentation may be brought against an officer of a savings and loan association under federal common law. We conclude that there is no paramount federal interest' that compels the recognition of a federal common law cause of action against an individual officer in a case where a borrower from a federal savings and loan association alleges that a loan agreement was induced by means of fraudulent misrepresentations.

I.

PROCEDURAL POSTURE

The Burnses filed an action against the Driggses and Western Savings and Loan Association, F.A. and Western Savings and Loan Association. They alleged in Count One of the First Amended Complaint that the defendants had violated the antitying provisions of 12 U.S.C. § 1464(q). Count Two alleged fraud. Count Three alleged negligent misrepresentation. Count Four alleged consumer fraud in violation of Ariz. Rev.Stat.Ann. § 44-1522.

The complaint alleged federal court jurisdiction in paragraph 10 as follows:

Jurisdiction in this case is founded on a federal question. The action arises under 28 U.S.C. § 1331 and particularly § 1346(b) as more fully appears below. This court has jurisdiction of the pendant (sic) state claims under the doctrine of United, Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

(emphasis added).

The Driggses filed a motion to dismiss Count One on the ground that Section 1464(q) does not apply to an individual. The Driggses also moved to dismiss the state claims because they were not pendent to a valid “arising under” federal law cause of action. In response to the Driggses’ motion to dismiss, the Burnses argued that “[ajlthough 12 U.S.C. § 1464(q) might not include within its ambit natural persons, see Rae v. Union Bank, 725 F.2d 478, 480 (9th Cir.1984), the complaint states a cause of action under federal common law.”

On October 13, 1989, the district court granted the Driggses’ motion to dismiss, ruling that Section 1464(q) does not authorize an action for relief against natural persons. The district court dismissed the pendent state law claims because “no independent federal jurisdictional basis exists.” The court held that the fraud and negligent misrepresentation claims against the Driggses did not “arise to issues of federal common law.” The . district court also granted the Driggses’ motion for award of attorneys’ fees pursuant to Rule 11 of the Federal Rules of Civil Procedure.

On October 12, 1989, the day preceding the hearing on the motion to dismiss, the Burnses filed a complaint in the Maricopa County Superior Court against the Driggs-es alleging fraud, negligent misrepresentation, and consumer fraud. The Burnses filed a motion on October 25, 1989, to [535]*535amend the judgment and for reconsideration. The motion was based on the contention that the court had pendent party jurisdiction over the “non-federal claims” for fraud and negligent misrepresentation pursuant to the October 10, 1989 decision of this court in Teledyne v. Kone Corporation. (The Teledyne case was subsequently amended and appears at 892 F.2d 1404 (9th Cir.1990)). The Burnses did not reassert their argument that the fraud and negligent misrepresentation claims were cognizable under federal common law. Instead, the Burnses stated:

The suit filed here initially alleged illegal tying and further alleged that the defendant Driggs participated in that illegal tying. It is also alleged that the precise facts dealing with the illegal tying would form the factual basis for other claims alleged against the Defendant Driggs. The issue then was whether, under United Mine Workers of America v. Gibbs, the court had jurisdiction over the individuals.

Thus, it is quite clear that in relying on Teledyne and Gibbs, the Burnses abandoned their federal common law theory and relied instead on the concept of pendent jurisdiction over state claims. Furthermore, in their reply to the Driggses’ opposition to the post-judgment motions, the Burnses argue “the exercise of pendent party jurisdiction is appropriate here.” In a later passage, the Burnses assert: “The Plaintiffs never conceded, in written or oral form, the absence of pendent party jurisdiction. Plaintiffs vociferously maintained that the exercise of pendent party jurisdiction under this particular statute was appropriate.” (emphasis added). The district court denied the postjudgment motions and ordered additional attorneys’ fees for the preparation of a response to the motion to amend the judgment and the motion for reconsideration.

In this timely appeal, the Burnses seek review of the dismissal of this action for lack of subject matter jurisdiction and the order awarding attorneys’ fees and costs to the Driggses. Because the jurisdiction question is novel, we address it in this opinion for publication. We have considered the Rule 11 sanctions in a memorandum disposition not for publication also filed on this date.

II.

DISCUSSION

The Burnses contend that the district court erred in ruling that a borrower can not maintain a tort action against an officer of a savings and loan institution for fraud and misrepresentation under federal common law principles. They do not seek review of the dismissal of their claim in Count One that the Driggses are liable under Section 1464(q), nor do they argue that the district court had pendent claim or pendent party jurisdiction over the fraud and misrepresentation counts. Before this court, the Burnses now argue that the regulation of federal savings and loan associations. (“S & Lb”) under 12 U.S.C. § 1464 is a uniquely federal interest, demanding recognition of federal common law causes of action for fraud and negligent misrepresentation against executives, officers, and directors of such institutions. The Burnses assert that because Congress clearly intended to prevent federally chartered savings and loan institutions from undertaking irresponsible and manipulative lending practices, it is axiomatic that federal common law would recognize a claim against individuals arising under the statute. We review the dismissal of a complaint for lack of subject matter jurisdiction de novo. Boettcher v.

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Bluebook (online)
978 F.3d 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-international-inc-v-western-savings-loan-assn-ca9-1992.