Graves v. C & S National Bank

491 F. Supp. 280, 1980 U.S. Dist. LEXIS 13473
CourtDistrict Court, D. South Carolina
DecidedMay 9, 1980
DocketCiv. A. No. 78-1632-6
StatusPublished
Cited by2 cases

This text of 491 F. Supp. 280 (Graves v. C & S National Bank) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Graves v. C & S National Bank, 491 F. Supp. 280, 1980 U.S. Dist. LEXIS 13473 (D.S.C. 1980).

Opinion

ORDER ON PETITION TO AMEND ORDER

HEMPHILL, District Judge.

This matter is before the court on the Petition to Amend Order of Robert Graves [281]*281and Graves Construction Company, Plaintiffs in the above referenced action. Plaintiffs seek to have the Order of this United States District Judge, dated February 18, 1980, amended so as to include the statement prescribed by 28 U.S.C. § 1292(b)1 so that Petitioner may file its Petition in the United States Court of Appeals. For the reasons discussed below, this court denies Plaintiffs’ Petition to Amend Order.

Petitioner requests that the Judge, in this case, amend his order to include therein his opinion that the order involves “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation” as required by 28 U.S.C. § 1292(b) such that this Interlocutory order might be immediately appealable. Petitioner’s request is based on his belief that a substantial ground for difference of opinion as to the law exists. It was the opinion of this Court in its prior order that venue in South Carolina was improper under 12 U.S.C. § 942.

Petitioner cites Southland Mobile Homes of South Carolina, Inc. v. Associates Financial Service Company, Inc., 270 S.C. 527, 244 S.E.2d 212 (1978) as the basis for his opinion that there exists grounds for venue in South Carolina. In regard to this, Petitioner seeks further opportunity to engage in discovery in order to meet the criteria for venue established in the Southland case so as to lay the basis for venue in Charleston, District Court.

Petitioner’s motion primarily relies on their contention that the reasoning in the Southland case could be applied to the facts of this case in order to establish venue in South Carolina. The Southland case upon which the Plaintiff relies involved a liberal interpretation of the term “located” as used in the national bank venue statute 12 U.S.C. § 94. The United States Supreme Court had previously decided that a bank was “located” within the meaning of 12 U.S.C. § 94 not only where the bank was chartered, but also where it maintained an authorized branch. Citizens and Southern National Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977). The court in Southland elaborated on the meaning of an authorized branch. It was decided in Southland that the Mellon Bank conducted “branch banking” in South Carolina and that it was therefore “located” there for purposes of the venue statute. That decision was based upon the finding that Mellon Bank had received checks, loaned money and conducted all other business necessary for the receipt and disbursement of funds through the office of an authorized agent, Associates Financial Services Company, Inc., in Sumter County of South Carolina. These transactions were conducted pursuant to the explicit directions of the Mellon Bank. Plaintiff, in this ease, however, neither contends that an authorized branch of C & S is maintained in South Carolina as required in the Bougas case, supra, nor does he contend that C & S has operated through an agent conducting business pursuant to the explicit instructions of C & S as were the facts in the Southland case, supra. The facts before the court, in this case, simply could not justify the application or extension of the rationale of the Southland case [282]*282to make a finding of venue in South Carolina. Therefore, this court, in its prior opinion, found that venue was improper under 12 U.S.C. § 94, and entered an Order transferring the action to the Southern District of Georgia, pursuant to the provisions of 28 U.S.C. § 1406(a).3

Petitioner, in his request for certification, contends that if he is given further opportunity to conduct discovery that he could find facts sufficient to lay venue in the District Court of South Carolina. Petitioner does not appear to contest the validity of the Southland case nor the interpretation of that case by this or other courts. Rather, Petitioner seems to rely upon an insufficiency of facts or a question as to the facts upon which the law was applied. One basis for deciding that an Order should be certified for an appeal is that the case involve a question of law as to which there was substantial ground for difference of opinion. Petitioner’s argument focuses on a difference of opinion or question as to the facts rather than a question of law as required by the expressed language of the statute. However, “one consideration to be weighed in deciding whether to certify a question for an immediate appeal is whether the factual background of the case is sufficiently settled to sharply define the legal issues raised.” 9 Moore’s Federal Practice ¶ 110.-22[2] at 261 (2d ed. 1975); Dewitt v. American Stock Transfer Co. 440 F.Supp. 1084, 1088 (S.D.N.Y.1977). This does not benefit the Petitioners, however, in that this case does not seem to provide the settled factual background necessary to sharply define the legal issues to make this appeal appropriate. In addition, this case does not appear to involve an issue of generalized significance which might allow this court to give it further consideration for appeal as suggested in the Dewitt case, supra.

Even if assuming arguendo, the factual background was sharply defined and Petitioner had made the showing that this case involved a “question of law as to which there was substantial ground for difference of opinion”, the question involved would not constitute a ‘controlling question of law’. A controlling question of law is not equivalent to a question of law that is determinative of the case at hand alone. Rather, “such a question is deemed controlling only if it may contribute to the determination, at an early stage, of a wide spectrum of cases”. In Brown v. Bullock, 294 F.2d 415, 417 (2d Cir. 1961); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515, 525 (S.D.N.Y.1973). This Petition is based on the question of the correctness of the decision of this court’s finding that venue was improper under 12 U.S.C. § 94 in South Carolina, and thereby transferring the case to Georgia pursuant to 28 U.S.C. § 1406(a).

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Related

North Carolina Ex Rel. Howes v. Peele
889 F. Supp. 849 (E.D. North Carolina, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
491 F. Supp. 280, 1980 U.S. Dist. LEXIS 13473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-c-s-national-bank-scd-1980.