Glen Kermit Till and Bettie F. Till v. Unifirst Federal Savings and Loan Association and Wortman & Mann, Inc.

BROWN, Before GOLDBERG and AINS- Glen and Bettie purchased Till a resi- WORTH, Judges. Circuit Jackson, dence in Mississippi, on June 4012a(b) provides 1. 42 U.S.C. provides as follows: 42 U.S.C. § 4104a instrumentality responsible Each Federal (b) instrumentality responsi- Each Federal supervision, approval, regulation, for the supervision, approval, or regulation, ble for the banks, insuring savings of banks, insuring and loan savings or associa- of and loan associ- tions, ations, by regula- or similar institutions shall by regula- or similar institutions shall require institutions, tion make, as a condition tion direct such institutions not to in- making, crease, extend, increasing, extending, of renewing expiration or or renew after the (after expiration sixty days thirty days following following of any December August 1974) any by improved by loan secured loan real secured im- estate or a proved mobile home located real or to be located in estate or a mobile home an located Secretary area that has been or to be identified located in an area that has been having special as an Secretary area chapter flood hazards and identified under this in which flood insurance having has been made or spe- Public Law 93-234 as an area chapter, available hazards, under this notify unless the build- purchaser cial flood or ing any personal proper- or mobile home (or satisfactory lessee obtain assurances that ty securing such loan is covered for the term purchaser the seller or lessor has notified the of the loan flood insurance in an amount lessee) special hazards, or of such in equal outstanding principal at least writing, period a reasonable in advance of the balance of the loan or to the maximum limit signing purchase agreement, lease, coverage respect made available with other documents involved in the transaction. particular type property under the chapter, whichever is less. require $170,000 part by purchase paid which was in $75,000 loan obtained from Uni- executing secured insurance the loan. before Plain- first, 1979, the Pearl River spring In the alleged tiffs further that Unifirst and its much of its and flooded swelled over banks W&M, wholly subsidiary, owned failed to surrounding including area Jackson and these fulfill duties. As a result of defend- the Tills’ home. alleged comply ants’ failure to with federal law, the Tills asserted were entitled to Mississip- complaint The Tills filed $175,847.67 seeking damages recover under state common law pi to recover state $1,758,476.70 pu- damages special negligence. causes of action for fraud and defendants as a result nitive pur Defendants removed the case In their the 1979 flood. of their losses in suant to 28 1441 to the alleged complaint, plaintiffs States District Court for the Southern Dis purchased, the area property time the Mississippi, claiming juris trict of federal designated by Department had been diction 28 under 1331 and 1337.2 §§ (HUD) Development as Housing and Urban court, plaintiffs In federal made clear Accordingly, they a hazard area. flood they damages sought that from defendants pro- the federal flood claimed that under through private right implied a of action by the National Flood In- gram instituted statutes, from the federal flood as well as Disaster surance Act of 1968 and the Flood seeking through general relief their state 1973, Protection Act of Unifirst had two Following lengthy discovery peri claims. (1) notify the Tills at least ten duties: od, defendants closing filed a motion to dismiss days prior their loan that area, 12(b)(6). property was located in a flood hazard under Fed.R.Civ.P. Both sides 970, jurisdiction 1611, (1978); 2. Federal courts are vested with 98 S.Ct. 1331(a) pursuant 1267, College, 28 and 1337 §§ both U.S.C. Girardier v. Webster 563 F.2d arising (8th 1977). However, over those claims under the laws 1270 Cir. a claim does Supreme United States. The Hood, Court in Bell v. not arise under the law of the United States 682, 773, 776, 678, 327 U.S. 66 90 S.Ct. pursuant to either if sections 1331 or 1337 the (1946) interpreted which L.Ed. 939 the statute sought entirely upon relief is based a state 1331(a) is now section regulations cause of action which established by Jurisdiction is not defeated ... ... merely a federal statute are used as further possibility might fail that the averments right evidence of the to recover under state petitioners state a cause of action on which Corp., law. See Lowe v. General Motors 624 actually it is well settled could recover. For 1373, (5th 1980); 1379-81 Jacobson Cir. proper the failure to state a cause of York, Co., 153, New N.H. & H.R. 206 F.2d judgment calls on the merits and action for a (1st aff’d, 909, 1953); 156-58 Cir. 347 U.S. 74 jurisdiction. not for a dismissal for want of 474, (1954); Moody S.Ct. 98 L.Ed. 1067 complaint Whether the states a cause of ac- McDaniel, 24, (N.D.Miss. F.Supp. 190 25-29 granted tion on which relief could be is a 1960). question just of law and as issues of fact it case, merely appellants In the do not must be decided after and not before the they assert under state law are entitled to jurisdiction assumed con- court has over the alleged appellees’ recover non- troversy. Rather, compliance with the flood statute. 1331, analysis long Under this of section it has they specifically remedy claim that a exists recognized plaintiff been that where a asserts pursuant Appel- to the federal flood law itself. private right implied that a of action is from court, law, lants contended before the district as requisite federal subject have the federal courts do court, jurisdiction have before this that the National matter to determine wheth See, remedy g., Program implies private er such a federal exists. e. Flood Insurance 236, Passman, 228, right provide Davis v. 442 99 of action sufficient to Ash, 2264, 2272, (1979); remedy Cort v. any L.Ed.2d without assistance from state law. 2080, 2084-85, 66, 71, 422 U.S. 95 S.Ct. negligence pen- the fraud and actions are (1975); Passenger L.Ed.2d 26 Railroad National dent state law claims whose existence in feder- Corp. v. National Pas Association of Railroad depends solely upon appellants’ theory al court 690, 692, sengers, 414 U.S. 94 S.Ct. private right g., of a of action. Touche E. Ross Inc., (1974); Rogers Lay, v. Frito L.Ed.2d 646 Redington, & Co. 442 U.S. 566 n.8 & 567 (5th 1980), 611 F.2d Cir. cert. de n.9, n.9, n.8 & nied, 66 L.Ed.2d (1979); Capeletti L.Ed.2d 82 United States v. (1980); Clark v. Gulf Oil 570 F.2d Bros., Inc., 1980). denied, (3d 1142-44 cert. other materials on the relief measures and placed and an in- filed memoranda by the motion and a hear presented creasing issues burden the Nation’s re- ing sources; motion was conducted (2) despite on the the installation of judge, after district The district not court. preventive protective works and the ing parties presented that both had materi adoption public other programs de- als the court had considered matters signed to reduce losses caused scope of plead outside the that were damage, these methods have not been 12(b)(6) motion ings, the Rule would ruled protect adequately against sufficient summary judg as a motion for be treated losses; growing exposure to future flood Accordingly, the district ment. court (3) policy, matter of as a national a rea- judgment granted summary defendants sharing sonable method of the risk of dismissing plaintiffs, holding the suit of through program is losses implied that no of action complement insurance which can and en- alleged law courage preventive protective meas- dependent upon law actions were common ures; program if such a is initiat- of the federal action. existence gradually, ed and carried out it can be appeal, On assert that the dis expanded knowledge gained is and ex- holding trict erred in that there is no perience appraised, eventually thus implied private cause of action un making coverage flood insurance availa- They der the federal flood laws. also con ble on reasonable terms and conditions to the actions tend that common law in their persons protec- who have need such for original complaint way dependent are in no tion. on the law.3 federal 4001(a).5 42 U.S.C. § II. Federal Flood Laws procedures The by created the 1968 Act 1977, Congress passed From 1968 to voluntary were Congress in nature. antici compose number of enactments which the pated that local the communities would vol Program (the National Flood Insurance untarily adopt land use restrictions nec enactment, “Program”). The first the Na essary for citizens participate its to in the 1968, of tional Flood Insurance Act created plan. However, it insurance became program to make flood insur nationwide acceptance clear that voluntary local ance property available to owners in flood program inadequate.6 was Accordingly, prone encourage adoption areas and to enacted Flood Disaster Pro by poli local communities of sound land use tection 1973 Act of which amended the Pro designed cies to diminish from gram essentially adoption make its flooding.4 establishing In program, governing the local mandatory. bodies Congress summarized the factors that made necessary this action The Act 1973 used severe sanctions (a) against (1) non-participating The finds that communities to encourage Program. time to time flood Any disasters created enrollment personal hardships 1,1975 economic community participating July and not distress required which have unforeseen disaster would receive neither federal financial as- Appellants appeal 1360, 3. also assert on that the dis- National Flood Insurance Act 1968 § of 4101(a). trict court should have dismissed the case 42 ac- U.S.C. § cording 12(b)(6) to Fed.R.Civ.P. and not on summary judgment. ruling In view our congressional findings purposes 5. Further here, unnecessary decide this issue. enacting the National Flood Insurance Pro- gram remaining in the listed subsections of Program 4. The 1968 Act set out that 42 was to U.S.C. 4001. § Accordingly, be administered HUD. Secretary identify of HUD was directed to Harris, Rights 6. Texas Landowners Ass’n public plain make all 1025, areas (D.D.C.1978), aff’d, across the F.Supp. 453 1027 country denied, determine the boundaries of (D.C.Cir.1979), F.2d 311 927, 444 cert. U.S. high risk all 267, zones within such areas. (1980). 100 62 L.Ed.2d 184 S.Ct. 578, Redington, purp & Co. U.S. acquisition or construction for sistance financing by 2479, 2490, (1975). federally L.Ed.2d 82 The related nor S.Ct. oses7 for use in HUD lending regard institutions private to be in this were factors considered Participation zones.8 risk designated flood Supreme in Cort v. by the Court delineated by the local adoption upon conditioned was Ash, 45 L.Ed.2d guide promulgated community the HUD (1) They are as follows: whether community not land use. lines for plaintiff is one of a class for whose partici use controls adopting the land enacted; especial benefit the statute virtually cut off Program was in the pating (2) legisla- is an indication of whether there assistance. from federal deny remedy; create or tive intent (3) remedy as Jackson that did those areas such whether such a would be incon- In controls, use requisite land adopt underlying legislative pur- sistent with the appropriate directed the Act further pose; whether the cause of action is adopt reg agencies *to supervisory traditionally relegated one to state law. lenders to make loans requiring ulations Ash, supra, 422 Cort v. property owners unless the flood zones at 2088. insurance. 42 U.S.C. purchased flood first private theory implied ac The 4012a(b).10 provision was followed is, course, basically a tions matter of by Congress in 1974 that enactment with an supervisory agen statutory Transamerica same federal construction. required the directing Advisors, Lewis, regulations promulgate Mortgage Inc. v. cies borrowers, notify a reasonable lenders to L.Ed.2d 146 closing, prop that the period in advance (1979) (hereinafter TAMA); Belluso v. identified flood erty is located in a HUD Turner Communications upon It is 4104a.11 risk zone. 1980). interpreting In provisions that claim these two statutes, progeny Cort and its private of action they are entitled focus the “ultimate issue” of whether Jackson flood. from the 1979 Congress’ to create a it was intent Right Implied Private of Action Club,-U.S. III. remedy. California v. Sierra -,-, 1775,1779, 68 101 S.Ct. L.Ed.2d again we are asked to find Once Inc., (1981); Rogers Lay, v. Frito 101 611 history a federal language the of 1074, (5th denied, cert. F.2d 1078 statute, implied cause of action not ex an 246, 449 66 L.Ed.2d U.S. Congress. The plicitly provided by for end, our search to 115 To that action must which such a cause of standards congressional intent concern determine the implied have may meet before it be become 4012a(b) ing and 4104a12 must eon increasingly stringent. Touche Ross sections more Board, Bank the Feder- Act of 1973 the Federal Home Loan 7. Flood Disaster Protection Corporation, 4106(a). Savings 202(a), al and Loan Insurance 42 § § National Union Association and the Credit Disaster Protection Act of 8. Flood regulation super- whose duties include the However, 202(b). was re- this restriction § 4003(a)(5). § vision of lenders. See 42 U.S.C. Housing Community Devel- moved opment the replaced a Act of 1977 and with notice regulation The issued the Federal Home 10. Pub.L.No.95-128, requirement. 91 Stat. § require- implement this Loan Bank Board 4106(b), (codified as at 42 U.S.C. § 523.29(b). is found at 12 ment C.F.R. amended). general of the For a discussion Landowners, supra note sanctions see Texas regulation 11. The issued the Federal Home at 1027-28. require- implement this Loan Bank Board to 523.29(e). The ment is found at regulation C.F.R. place imple- of 9. did not the burden given that notice must be directed directly enforcing Program menting and the prior closing. days ten Rather, lending upon this re- the institutions. agencies sponsibility placed upon was federal savings Appellees, and loan 12. as well as the of Governors of the Federal such as the Board participating System, Deposit as amicus cu- herein Insurance Currency, associations riae, Reserve Corporation, the Federal require- forcefully argue Comptroller the notice the of the purposes language the The policies and of overall of both statutes is sider the there- two legislative scheme of which these sec fore much like the we statutes considered in component.13 Bros., Capeletti tions United are States v. Inc. and Rogers cases, Lay, v. Frito Inc. In both deciding first Cort factor— In duty imposed directly statutory on fed- appellants especial are the whether benefi agencies. eral we held that the bene- 4012a(b) sections and 4104a —we ciaries of flowing fits plaintiffs were derived must if intended determine indirectly any private and not as result of right plain in favor of the “create right upon action of conferred their class. Ash, supra, v. at tiff.” Cort Bros., Inc., Capeletti supra, States Accordingly, proper S.Ct. at fo 1314; Rogers Inc., at Lay, v. Frito upon “right- duty-creating cus is supra, 611 F.2d at 1079-80. See also Can- language gener of the statute has [which] University Chicago, supra, non v. of ally the most accurate been indicator or the n.14, U.S. at 693 at 1955 n.14. This propriety implication of of a cause of ac applicable is equally conclusion to the cir- University Chicago, tion.” Cannon v. of in the cumstances case. n.13, n.13, (1979); regardless United States Appellants argue, statu- Inc., Bros., Capeletti 1313 tory language, pri- that borrowers are the 1980); Rogers Lay, Inc., Frito mary beneficiaries flood insurance supra, 611 F.2d at 1079. requirements and, such, and notice pass especial the Cort benefit test. How- cursory Even evaluation stat ever, even if borrowers could be considered utory language sections primary laws, beneficiaries ap- clearly 4104a reveals that no defined pellants would still not “especial be the exists in favor of borrowers in either stat stated, beneficiaries.” previously As merely ute. require lending The statutes v. University Cannon of Chicago test re- notify institutions borrowers of flood quires showing grant- borrowers plains require appropriate flood insur statute; ed rights here, under the However, duty imposed ance. only is only placed duties are regu- on the various indirectly on It lenders. the various latory authorities. agencies regulatory case, financial this—in However, Federal Home Loan Bank Board —that fail outset Congress directly responsibility assessed the even to establish that borrowers are the plan. carrying out its primary beneficiaries the flood statutes. applicable pass statutory

ment of section 4104a is not even to since, on this issue construction They point defendants in the regardless case. applicability, out of its we hold unnecessary require that it is redundant and to Congress supply that did not cause of give a lender to notice of a flood hazard area appel- action under section 4104a which where, pursuant 4012a(b), to section the lender lants can See recover. Anderson already required is to direct the borrower to States, 2253, 2259, 417 U.S. 94 S.Ct. first obtain flood insurance before the loan can (1974). 41 L.Ed.2d 20 Accordingly, be executed. the it was obvious Congress apply require- intent of to the notice principles 13. It is axiomatic under the of statu only ment in those communities where the tory construction that courts must consider the program adopted flood had been and flood corpus pertinent entire law to ensure that required insurance was neither nor available in any interpretation would be consistent with the argument proceeds, the flood zones. the purposes by Congress. enunciated See Ko adopted Program, since Jackson the section Belford, 642, 650, Koszka 417 U.S. inapplicable only 4014a was and lenders had to 2431, 2436, (1974); Weinberger requirement the follow 4012a(b). insurance of section Hynson, Inc., Danning, Westcott & 609, 631-32, L.Ed.2d requirement The notice was an amendment en- In v. Turner Belluso Communica legislative history acted in 1974. Its is short. tions Although appellees’ argument logical is recognized principle statutory we inter plausible, there is the no distinction in statute pretation applied implication doctrine. unnecessary We itself. find it and inadvisable only require suggest are directed to flood disingenuous to insurance would be It for the amount and term of the Program outstanding it did Congress passed when 4012a(b). balance. 42 loan There who had help to those borrowers not intend requirement no is flood insurance flooding. On the other damaged by been equity Plainly, cover the of the borrower. funds were not hand, of federal borrowers protecting in was interested Congress. Clearly, the only concern lending deposits institutions whose the fed enacting Program purpose in principal agencies regulatory eral insured. As for reduce, by implementation of ade was to requirement, legislative the notice his insurance, quate land use controls flood tory indicates it too was enacted in the federal fisc of massive burden on part help development stem the of flood ever-increasing flood disaster hazard areas and further diminish the bur Indeed, requiring in flood in assistance.14 den of federal disaster assistance.16 protection for the the concern surance so, short, just great, if not more In especial lenders was as not the beneficiaries of sections the concern for borrowers.15 4104a than Lenders 14. In The National Flood Insurance 15. .through program. 2966-67. Federal Flood Disaster Relief Act of which became a out of a 1966 nent recommendation of that 3218-20, 3223. H.R.Rep.No.1585, For further evidence of the interest S.Rep.No.93-583, ed in ed in (cid:127) persons inland areas of the Nation canes in the coastal areas depend river basin become following is not available Insurance pying for a of insurance ural struction caused forms of assistance. Some governments for the a flood-stricken untary insurance, ing against all of these sources is aged assistance, reducing Heavy To Communities purposes part ^{[1968] [1973]} Federal catastrophes encourage widespread areas. These facts underline the flood program land use controls necessary relief to become aware It stated as follows: losses over the House protection against U.S.Code U.S.Code the Federal major and need for a flood the burden (emphasis protection against expenditures for disaster relief HUD part agencies Congress plains, against 93d 90th area, along which will make insurance Report No. 1585 discussed restoration of flood. limited of a generally study, tornadoes Cong., 1st Cong. Ad.News Cong. Ad.News completely Cong., but and reduce the mount- the seacoast inadequate added) Government study the risk of flood loss. available, Senate should disaster relief from and from storms in of the risk of occu- Usually they on federal dramatize the lack programs years the conclusion of & & purchase 2d provide State and local available, the risk of de- states in insurance, and other nat- Program grew Sess., reprint- Sess., report heavily be immobilized from hurri- 1973. The encourage insurance requested the need damage. to assist and vol- or in a reprint- provide various on the funds but perti- 3217, dam- must flood see There is little 16. that one reason for the notice purpose § 4104a. disaster relief. The amendment’s later (SBA) (FHA) and Small Business Administration agencies ed in S.Rep.No.93-583, ed in generally require its shall or supervision gages ance at unsubsidized rates on all interest of the these institutions such flood insurance be considered in the insurance in these areas. (emphasis added) developments often add to the flood hazards cial tims. opment developments other results, opment Government, through FHA or SBA or some tions, upon again discourage prevent using Then when the flood Cong.Rec. declare lending deposits again using pertinent part [1973] U.S.Code development to finance the program. based on new and the savers and [amendment] as the Federal require that is financed However, of commercial and the Federal Government the amendment’s that as a matter of institutions of insurance of flood zone and under in flood legislative history borrowers borrowers, help federal funds to rebuild with 93d federal funds Many might or a high fire in the short statement of (1974). those Cong., has to do with the devel- Cong. residences, development and then entrusted private housing devel- plain times risk development in insurance; any happens well through the Federal Housing Authority who sponsor, & Ad.News savings areas flood insur- 1st Sess. requirement was form of Federal depositors; areas, encourage low risk private housing lending national through were is sponsor with on 42 U.S.C. and a commer- new and these and that it is clear is the vic- reprint- savings institu- depos- policy areas, called mort- order stat- now Co., Inc., 738, only 1980). duties view of the fact that 74Í Indeed, the various feder- it is clear under the imposed therein maxim —ex- pressio unius est exclusio regulatory agencies clear indica- alterius —that a and the al pervasive provided by remedial scheme merely of concern not borrowers tion for an Congress is indication there in- was no lending federally also for the insured but an provide private tent to additional reme- institutions. TAMA, dy. supra, See U.S. at factor, quest our is Under second Cort 247; Passenger National at Railroad legislative “any for indication of to search Corp. Ass’n of v. National Railroad Passen- intent, explicit implicit, to create either 453, 458, gers, 414 U.S. 94 S.Ct. remedy deny a or to one.” Cort v. such (1974); Cape- L.Ed.2d 646 States v. Ash, supra, 422 at at 2088. 95 S.Ct. Inc., Bros., supra, letti 621 F.2d at 1315. Supreme that in cases The Court forewarns Furthermore, noteworthy it is Con- legislative history where the statutes and gress provide private rights did for ac- question private a reme- are silent on the tion in certain other sections of the flood “implying private right of action dy, a insurance laws. Under 42 U.S.C. §§ congressional basis is a haz- silence and policyholders may flood insurance enterprise, at best.” Touche Ross & ardous policies sue on their in federal court. Like- Redington, supra, Co. wise, owners and lessees property, at 2486. well as communities which feel a haz- legislative history examination of the Our incorrect, designation ard is appeal can congressional specific reveals no evidence of from an administrative review to federal any intent to vest with redesignation pursuant for to 42 of the for a violation Supreme U.S.C. 4104. The § Court flood laws under sections imply Touche Ross refused to private Instead, only 4104a. discernible and partly cause of action because sec- other suggests privaté evidence of intent no expressly provided tions same act remedy was envisioned. private remedies. The Court reasoned “when provide private wished to Congress, by directing the federal damages remedy, it knew how to do so supervisory agencies adopt reg financial expressly.” did so Touche Ross & Co. v. implement ulations to insurance supra, Redington, 442 U.S. at 99 S.Ct. requirements, hazard notice has at 2487. require entrusted enforcement of these case, agencies. to those ments In this opinion Also useful is the of the FHLBB (FHLBB) Supreme Home Federal Loan Bank Board itself. The Court directs that statutory interpretation, the authority has matters of to issue cease desist courts officers,17 should against be attentive “to the appellees’ orders views of termi entity appointed apply administrative practices,18 nate unsafe or unsound to im enforce statute.” Ford remedies, Motor Credit pose including administrative Milhollin, 555, 565, Co. v. monetary penalties,19 require and to affirm case, In this prevent ative action to or correct violat affidavits of three members of the FHLBB ions.20 Existence of this administrative indicate understanding their that the statu strong scheme of enforcement evidence tory provisions do encompass intended the administrative right of action.21 remedy to g., be exclusive. E. Belluso v. supra, Turner Communications Finally, simply it is inconsistent im- 397; F.2d at Baking Smith v. Cotton Bros. plausible to find the federal flood laws 1464(d)(2)(A). 17. 1464(d)(2)(A). 20. 12 U.S.C. floor, 21. In the remarks brief on the House 1464(d)(4). U.S.C. § sponsor requirement compared of the notice legislation to an extension of the truth-in- 1464(d)(8)(B). 12 19. U.S.C. § lending concept. Cong.Rec. (1974). 20308 pellants’ claims neglig reduce bur- state for fraud and intended to the

that on their The court held merits. disaster assistance shift- of den federal ence22 “[ijnasmuch all lenders, of Plaintiffs’ claims supervised whose federally to ing it implication are dependent herein agencies. by federal deposits insured action, private of a cause of Plaintiffs’ subject like would lenders a result Such Appellees, must claims be dismissed.” at liability shared other a not appellees to decision, tempting support to the court’s funding, as in- of such significant sources reason that state common law does not bankers, mortgage and companies, surance provide all the elements of the asserted savings and loan associa- state-chartered negligence. They assert that both fraud regulations tions, do upon which the federal require duty of breach causes action a of apply. not duty only and that here arises from exists remedy in a stat private No Therefore, they federal enactments. con provide private rights not to ute which does tend, there exist private must cause of class, prohibit con does an identifiable in the federal action statutes ihemselves legislative and whose his duct as unlawful appellants can before recover from the private tory is silent on existence state based claims. Ross & cause of action. Touche Co. true Whether this is is a matter of state Redington, supra, 442 S.Ct. See, g., Chesapeake Moore law. e. & third fourth factors of at 2489. The and 205, 211-17, Ry., 291 Ohio only first test are relevant if the the Cort 404-06, (1934); 78 L.Ed. 755 Crane v. Cedar create two indicate an intent to Co., Rapids City Railway & Iowa Club, supra, remedy. California v. Sierra 164, 166-67, 1706, 1708-09, at-, The at 1774. -U.S. (1969); McDaniel, Moody L.Ed.2d initial two factors indicate that no F.Supp. (N.D.Miss.1960); 25-29 W. ascertained from the federal intent can be Prosser, Handbook of the Law of Torts laws; therefore, appellants’ quest for (4th 1971).23 at 200-02 ed. This can § damages pursuant 42 U.S.C. §§ be best determined remand the case fails. 4104a Mississippi state court in which the initially suit was filed.24 IV. State Claims court, by granting summary The district In removal cases claims, may, judgment against ap pursuant dismissed its sound discretion here, rely comparison ruling Appellants formed. In view of our on this as evidence these addi- private right may presented Mississip- action. of intent to create tional be issues misplaced. pi “[T]he Their reliance is Truth state its court for consideration. Lending provides ma Act ‘detailed remedial chinery’ to redress violations Act.” Ger general For a 23. discussion of effects of Bank, asta v. Hibernia National regulations on see state common law (5th 1978). Additionally, Congress Hazen, Implied Private Remedies Under Feder- placed stringent procedural substantive Statutes; al Nor Neither Death Knell a Mora- liability g., limits the Act. E. under Rights, Regulation, torium —Civil Securities 1640(a)(2) (e). U.S.C. & Other than the dis Beyond, 33 Vand.L.Rev. 1335-47 similarity requirement, closure between 42 (1980); Note, Implied of Action in the Causes Truth-in-Lending 4104a and the Act Court, State 30 Stan.L.Rev. 1243-53 If had section vanishes. 4104a intended provide private remedy, same provided would also for the similar “ma 24. In Lowe F.2d v. General Motors chinery” procedural as well as substantive compelled this court was liability safeguards upon which to borrowers to determine the effect of a federal statute on fairly could be determined. There, diversity jurisdiction. state law due to plaintiff appellants charge we held under law a appeal, Alabama 22. On in addi- wrongful negligence could in a death action recover tion to fraud and are also enti- separate violations of the National Traffic and Motor tled recover under the Safety Vehicle Act of Lowe v. for breach contract General common law theories duty per- Corp., supra, undertaken be Motors at 1379-80. breach 1441(c), parties return the to 28 U.S.C. pendent court for trial state state Kenneth C. TROSCLAIR and Randall K. Barrows, v. 538 F.2d law claims. Ondis Gilbert, Plaintiffs-Appellants, Brough v. (1st 1976); United Steel- Cir. v. America, AFL-CIO, 437 F.2d workers CORPORATION, (1st 1971). al., case this BECHTEL et Since court, Defendants-Appellees. originally filed in state it would be prejudice to dismiss without unreasonable No. 80-3790 in require appellants to file anew state Summary Calendar. Therefore, the district court erred in court. summary judgment on

granting all Appeals, United Court of States claims, holding dismissed Mis- since its Fifth Circuit. sissippi prejudice. claims with common law AUnit this We therefore remand case Aug. it district court with direction remand Mississippi it state court which was originally filed. PART; IN

AFFIRMED VACATED

AND REMANDED IN PART. BROWN, Judge, R.

JOHN Circuit concur-

ring: opinion

I fully concur for the

Court.

Although, my approach, might it preferable simply

been that we remand to District Court consideration of the claim, open

state-based is still

State apply, Court on remand to as rele-

vant, perhaps controlling, substantive fed- going jurisdiction

eral solely law

the implication action, of a Program, National Flood Insurance 4012a(a, b) (and amendments). approved fully ap- Court has

proach. Corp.,

Lowe v. General Motors 624 F.2d (5 1980). 1379-81 Cir. diversity trial, case, pendent There no in the as in case. The the instant state negligence fraud and claims in federal court claims should be left state tribunals. See only pendent Redington, supra, were state claims. See note 2 Ross Co. Touche & supra. n.8, principles comity n.8; Under the and fair- U.S. at 566 at Lowe v. ness, Supreme supra, 379; Court in United Mine Work- General Motors Gibbs, Bros., Inc., ers Capeletti States 1980). held cases 1317-18 where the federal claim is dismissed before

Case Details

Case Name: Glen Kermit Till and Bettie F. Till v. Unifirst Federal Savings and Loan Association and Wortman & Mann, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 7, 1981

Citation: 653 F.2d 152

Docket Number: 80-3640

Court Abbreviation: 1st Cir.