Lien HUYNH; Voong Sy Phung, a/k/a Phung Sy Wong; Chun Huynh; Ngoc Bich Huynh; Dieu Minh Nu; Cong Ton; Phi Vu Hoang Nguyen; Tran Quang Tri, a/k/a Chris Tran, individually and on behalf of all persons similarly situated, Plaintiffs, and Tuoi Pham Foster, a/k/a Tuoi Thi Pham; Truong Dac Phung; Kim Thi Ton-Nu, a/k/a Ton Nu Thi Kien; Huy Le Thi Tran, a/k/a Julie Doan Tran; Nancy Le Nguyen, a/k/a Nga Thi Le; Huan Tran Dang; Dinh Vu Nguyen; Toa-Anh Thi Nguyen; Bich-Dao Thi Ho; Hong-Duc Thai Van; Tai Dinh Nguyen; Thuong Van Nguyen; Van Cam T. Nguyen; Nguyen Thi Ri; Phung Thi Nguyen; Thach Thi Pham; Gerardus Fernandez; Hong T. Fernandez; Xua Thi Duong; Dien T. Nguyen; Vivian Nguyen Dang, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. CHASE MANHATTAN BANK, a New York corporation; Citigroup Inc., a Delaware corporation f/k/a First National City Bank, Defendants-Appellees, and Bank Of America Corporation, a Delaware corporation, Defendant. Lien Huynh; Voong Sy Phung, a/k/a Phung Sy Wong; Chun Huynh; Dieu Minh Nu; Cong Ton; Phi Vu Hoang Nguyen; Tran Quang Tri, a/k/a Chris Tran, individually and on behalf of all persons similarly situated; Tuoi Pham Foster, a/k/a Tuoi Thi Pham; Truong Dac Phung; Kim Thi Ton-Nu, a/k/a Ton Nu Thi Kien; Huy Le Thi Tran, a/k/a Julie Doan Tran; Nancy Le Nguyen, a/k/a Nga Thi Le; Huan Tran Dang; Dinh Vu Nguyen; Toa-Anh Thi Nguyen; Bich-Dao Thi Ho; Hong-Duc Thai Van; Tai Dinh Nguyen; Thuong Van Nguyen; Van Cam T. Nguyen; Nguyen Thi Ri; Phung Thi Nguyen; Thach Thi Pham; Gerardus Fernandez; Hong T. Fernandez; Xua Thi Duong; Dien T. Nguyen; Vivian Nguyen Dang, individually and on behalf of all persons similarly situated, Plaintiffs, and Ngoc Bich Huynh, individually and on behalf of all persons similarly situated, Plaintiff-Appellant, v. Chase Manhattan Bank, a New York corporation; Citigroup Inc., a Delaware corporation f/k/a First National City Bank, Defendants, and Bank of America Corporation, a Delaware corporation; Chiao Tung Bank Co., a Republic of China corporation, f/k/a Bank of Communications, Defendants-Appellees.
Nos. 04-56105, 05-55091
United States Court of Appeals, Ninth Circuit
Argued and Submitted April 3, 2006. Filed Sept. 28, 2006.
465 F.3d 992
Thus, I respectfully dissent.
Richard B. Kendall, Melissa R. McCormick, Irell & Manella, LLP, Los Angeles, CA, for defendants-appellees The Chase Manhattan Bank and Citigroup, N.A. Angela L. Padilla, Robert S. Stern, Morrison & Foerster, LLP, Los Angeles, CA, for defendant-appellee Chiao Tung Bank Co.
Before D.W. NELSON and O‘SCANNLAIN, Circuit Judges, and ROBERT C. JONES,* District Judge.
Proposed class representatives of Vietnamese bank depositors seek to recover the dollar value of bank deposits made in Saigon, South Vietnam, before April 1975. On appeal, they challenge the district court‘s orders dismissing as time-barred their complaint against Citibank, N.A. (Citibank), The Chase Manhattan Bank (Chase), and Chiao Tung Bank (Chiao Tung). We have jurisdiction pursuant to
I
After several years of conflict, Saigon, the capital of the Republic of Vietnam (South Vietnam), was surrendered unconditionally to the Democratic Republic of Vietnam (North Vietnam) on April 30, 1975. The history of these events has been chronicled elsewhere by the federal courts. See, e.g., Trinh v. Citibank, N.A., 850 F.2d 1164, 1165-66 (6th Cir. 1988); Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 857-58 (2d Cir. 1981). Thus, it suffices to mention here that, during the unrest immediately preceding the regime change, several foreign banks closed the branches they had been operating in Saigon.
Lien Huynh, Tuoi Pham Foster, and other proposed class members (Appellants) allege that, at the time of these unannounced closures, each proposed class representative had South Vietnamese piastres on deposit at the Saigon branch of a foreign bank. The alleged balance of each named plaintiff‘s account as of April 1975 ranges from $226.16 to $20,073.68 (at an exchange rate of 755 piastres to the dollar).
Some twenty-eight years later, on September 26, 2003, Appellants filed their first amended complaint1 in Los Angeles County Superior Court seeking to recover the dollar value of their piastre-denominated bank deposits from seven non-Vietnamese banks. Among those banks were the three banks party to the instant appeal: Citibank, and Chase, both U.S.-chartered banking corporations headquartered in New York, as well as Chiao Tung, a Taiwanese banking corporation.
Citibank removed the case to federal court on October 29, 2003. Before the district court, Citibank and Chase jointly moved to dismiss the complaint pursuant to
The district court granted both motions, and this timely appeal followed.
II
The case before us presents an intertwined issue of statute of limitations and choice of law questions, which we review de novo. See Oja v. U.S. Army Corps of Engineers, 440 F.3d 1122, 1127 (9th Cir. 2006) (statute of limitations questions); Jorgensen v. Cassiday, 320 F.3d 906, 913 (9th Cir. 2003) (choice of law).
Addressing a similar question in Cruz v. United States, 387 F.Supp.2d 1057 (N.D. Cal. 2005), the district court adopted the following analytical framework:
First, the Court must decide what choice-of-law rule governs the selection of the statute of limitations. Second, the Court must apply that rule to determine which jurisdiction‘s limitations law applies. Third, and finally, the Court [must] determine whether plaintiffs’ claims fall within the relevant limitations period.
Id. at 1070. We endorse and apply this approach.
Chase removed this action to federal court pursuant to
Federal common law follows the approach outlined in the Restatement (Second) of Conflict of Laws. Id. Accordingly, barring exceptional circumstances, we consider the following factors:
- The forum will apply its own statute of limitations barring the claim.
- The forum will apply its own statute of limitations permitting the claim unless:
- maintenance of the claim would serve no substantial interest of the forum; and
- the claim would be barred under the statute of limitations of a state having a more significant relationship to the parties and the occurrence.
Restatement (Second) of Conflicts of Law § 142 (1988). The formulation of this rule is intended to reflect the general choice-of-law principles stated in Restatement (Second) of Conflicts of Law § 6. See Restatement (Second) of Conflicts of law § 142.
A
Applying § 142, we must first consider whether applicable California law—the forum state—bars Appellants’ claims. We conclude that California law does not bar Appellants’ claims against Citibank or Chase, but it does bar the claims against Chiao Tung.
Under the California Code of Civil Procedure there is no time limitation on an action brought to recover bank deposits.
When a cause of action has arisen in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this State . . . .
Appellants’ complaint indicates that most named plaintiffs are “residents” of California. Therefore, reading the complaint with the required liberality, see Jablon, 614 F.2d at 682, many of the proposed class members may be citizens of California who could benefit from the borrowing statute‘s “citizen of the State” exception. This exception has been read to apply only where the plaintiff was a citizen at the time his or her claim accrued. See, e.g., Cossman v. DaimlerChrysler Corp., 108 Cal.App.4th 370, 133 Cal.Rptr.2d 376, 382 (Ct.App. 2003); Flowers v. Carville, 310 F.3d 1118, 1124 (9th Cir. 2002). Thus, whether Appellants can avail themselves of the exception—and, thereby, escape a potential foreign statute of limitations bar—turns on when California law deems the cause of action to have “accrued.”
B
We have never considered, under California or any other law, when a claim for a return of a bank deposit starts to accrue. Relying on Edelmann v. Chase Manhattan Bank, 861 F.2d 1291 (1st Cir. 1988) and Garcia v. Chase Manhattan Bank, 735 F.2d 645 (2d Cir. 1984), Appellants urge that their claims accrued upon their formal demand for payment. That demand occurred, they argue, only when they filed the complaint. See Edelmann, 861 F.2d at 1305 (holding that “the statute of limitations on the parent bank‘s indebtedness begins to run from the date of demand“); Garcia, 735 F.2d at 648-49 (concluding that in the absence of an unequivocal repudiation, “the statute of limitations did not begin to run until a demand was made“). Neither Edelmann nor Garcia, each addressing the issue under the laws of New York, is instructive with respect to the laws of California.
In California, we know of few cases discussing either demand or accrual in relation to a cause of action to recover a bank deposit. Despite the dearth of case law, which is natural given that there is no statute of limitations on such claims, it appears that California does not subscribe to the demand requirement promulgated by Garcia and Edelmann:
[W]here a right has fully accrued, except for some demand to be made as a condition precedent to legal relief, which the claimant can at any time make, if he so chooses, the cause of action has accrued for the purpose of setting the statute of limitations running. . . . Otherwise, he might indefinitely prolong his right to enforce his claim or right by neglecting to make the demand until it suited his convenience so to do.
Taketa v. State Bd. of Equalization, 104 Cal.App.2d 455, 231 P.2d 873, 875 (1951) (internal quotation marks omitted). Instead, the statute of limitation begins to run when the individual could have made a demand. See, e.g., Carrasco v. Greco Canning Co., 58 Cal.App.2d 673, 137 P.2d 463, 465 (1943); People v. Honey Lake Valley Irr. Dist., 77 Cal.App. 367, 246 P. 819, 820 (1926); Miguel v. Miguel, 184 Cal. 311, 193 P. 935, 936 (1920) (“That a cause of action for money payable on demand accrues with the inception of the obligation and without
In apparent conflict, several California cases indicate that Appellants’ cause of action accrued not when a demand could have been made but when a demand was made. See Union Tool Co. v. Farmers & Merchants Nat‘l Bank of Los Angeles, 192 Cal. 40, 218 P. 424, 429-430 (1923) (recognizing “the general rule that there is no default on the part of the bank, and hence no accrual of a cause of action against it to recover the balance of a general deposit until its payment is demanded or there is some act on the part of the bank dispensing with such demand.“); Glassell Devl. Co. v. Citizens’ Nat‘l. Bank of Los Angeles, 191 Cal. 375, 216 P. 1012 (1923); Zuck v. Culp, 59 Cal. 142, 148 (1881).
We need not attempt to resolve this potential conflict here because, even were we to conclude that the latter cases governed, it is absolutely clear that California law imposes limits on Appellants’ freedom to choose when to make their demand:
[N]o one can suspend the running of the statute of limitations indefinitely and thereby defeat its purpose by unreasonably delaying the making of a demand or by unreasonably delaying the doing of some other act. . . . A party cannot by his own negligence, or for his own convenience, stop the running of the statute.
O‘Hair v. U.S. Fidelity & Guaranty Co., 9 Cal.App.2d 307, 49 P.2d 1129, 1130 (1935) (internal quotation marks omitted); see also Phillis v. City of Santa Barbara, 229 Cal.App.2d 45, 40 Cal.Rptr. 27, 31 (1964) (“[O]ne . . . cannot postpone the running of the statute of limitation by failing for an unreasonable period to thus assert his right, and unless the demand is made within such period the cause of action is barred.“). Rather, the linch-pin of the demand requirement is that “the demand must be made within a reasonable time after it can lawfully be made.” Stafford v. Oil Tool Corp., 133 Cal.App.2d 763, 284 P.2d 937, 939 (1955); see also Vickrey v. Maier, 164 Cal. 384, 129 P. 273, 275 (1913); Bogart v. George K. Porter Co., 193 Cal. 197, 223 P. 959 (1924); Phillis, 40 Cal.Rptr. at 31; Brock v. W. Nat‘l Indem. Co., 132 Cal.App.2d 10, 281 P.2d 571, 576 (1955); Ilse v. Burgess, 28 Cal.App.2d 654, 83 P.2d 527, 529 (1938).
At the very least, the complaint demonstrates that Appellants “continually” have known about Appellees’ alleged refusal to return their deposits since 1975. Indeed, the complaint alleges that “[a]fter the fall of the government in Saigon, Defendants continually represented . . . and continue to represent to Plaintiffs that they were released from their obligations . . . .” Yet, Appellants offer no explanation why they failed to seek redress. Thus, the three decade delay does not appear reasonable.3
Moreover, the same cases acknowledging the demand requirement for bank deposits explain that the statute of limitations begins to run not only when demand is made but also when “there is some act
Thus, whether or not there is a demand requirement under California law, Appellants’ cause of action accrued no later than April 1975, when they allege that Citibank, Chase, and Chiao Tung ceased operations in Saigon. Appellants were not citizens of California at that time,4 so they are subject to California‘s borrowing statute. Therefore, whether Appellants’ action is barred by California law is dependent on the law of Vietnam (where the cause of action arose).
III
A
In determining whether Appellants’ claims would be barred in Vietnam, we are faced with divergent interpretations of Vietnamese law. Properly in the record on appeal is an expert declaration analyzing Vietnamese law, accompanied by translations of the relevant legal texts, offered by Chiao Tung before the district court. That declaration concludes that Appellants’ claims are barred by Vietnamese law. Appellants request that we take judicial notice of its opposing expert declaration, which was not before the district court. That declaration concludes that either Vietnamese law does not bar Appellants’ claims or the statute of limitations has been tolled for depositors who left Vietnam.
We need not resolve these conflicting interpretations of Vietnamese law. “It is rarely appropriate for an appellate court to take judicial notice of facts that were not before the district court.” Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 392 n. 7 (9th Cir. 2000). Rather, an appellant “must bear the burden of a factual record that is incomplete on the issues [he] raises.” United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (internal quotation marks omitted) (citation omitted). These principles counsel powerfully against noticing Appellants’ declaration because they did not object to (or even address) Chiao Tung‘s request for judicial notice.
We will not reward Appellants on appeal for their lack of diligence before the district court, so we are left with only Chiao Tung‘s interpretation of Vietnamese law. Under that interpretation, the Vietnamese statute of limitations bars Appellants’ causes of action. Thus, we conclude that the dismissal of the complaint against Chiao Tung was proper.
In their separate motion to dismiss, however, Citibank and Chase did not raise Vietnamese law, nor did they offer any interpretation thereof.5 Under the Restatement—and, therefore, federal common law—the law of the forum determines the standards of proof of the content of foreign law, as well as the effect of a party‘s failure to show the content of foreign law. Restatement (Second) of Conflict of Laws § 136. Accordingly, we return to California law and conclude that Citibank and Chase cannot benefit from arguments they did not make and evidence they did not offer. Rather, where foreign law is applicable but it is neither pled nor proven, California permits the court to apply the law of California.
i
As discussed above, California does not impose a statute of limitations on actions to recover bank deposits,
Primarily, Appellants argue that California has a substantial interest in this action because all but two of the proposed class representatives, as well as “the worlds [sic] largest expatriate community of Vietnamese,” reside in California.7 As noted above, only one of these California residents was a resident of the state at the time his cause of action accrued. Yet, California “courts have consistently declined to recognize after-acquired residence as a source of governmental interest on the grounds that consideration of this factor would encourage forum shopping.”
Moreover, the fact that most Appellants and, apparently, most Vietnamese expatriates living in the United States reside in California carries little weight in our substantial interest analysis. California is merely the current residence of certain Appellants and the place where, cognizant of the favorable statute of limitations, they happened to seek performance. The state had no connection with this case when Appellants made their deposits or when the banks ceased operations in Saigon.8 Nor was there any reasonable expectation at the time the causes of action accrued that the banks would perform in California: the alleged contracts were executed in Vietnam with Chase and Citibank, both headquartered in New York. Even recognizing that the banks were ultimately liable for the debt of the closed branches, it is the New York-based parent bank of the Saigon branch—not another branch—that is responsible to Appellants. Accord Vishipco Line, 660 F.2d at 863–65.
As Appellants offer no other basis supporting California‘s interest, we conclude that California does not have a substantial interest in this case.
ii
Since maintenance of Appellants’ claim serves no substantial interest of the forum state, we must determine whether there is any jurisdiction with a more significant relationship to the parties. If Appellants’ claims are time-barred there, then they are time-barred. Restatement (Second) of Conflicts of Law § 142(2). Here, two jurisdictions have a significant relationship to the Appellants and Citibank and Chase: Vietnam (where the action arose)9 and New York (the location of the banks’ headquarters).10 As already discussed, with re-
Under New York law, Appellants’ claims are barred by the six year statute of limitations for contractual and fraud claims.
In three unrelated cases arising out of branch closures in Saigon, the Southern District of New York applied these rules, concluding that plaintiffs’ causes of action accrued when the Saigon branch of the bank was closed. Bao, 1986 WL 1807, at *3-4; Tat Ba v. Chase Manhattan Bank, 616 F.Supp. 10, 12-14 (S.D.N.Y. 1984); Tran v. Citibank, 586 F.Supp. 203, 205-06 (S.D.N.Y. 1983). In each case, the action was barred by the six year statute of limitations. Bao, 1986 WL 1807, at *3-4; Tat Ba, 616 F.Supp. at 14-15; Tran, 586 F.Supp. at 205-206. We see no reason to part company with the Southern District of New York in the case before us today. Thus, under New York law, Appellants’ claims against Citibank and Chase are barred.11
IV
Having concluded that Appellants’ causes of action are barred against all of the defendants, we must consider Appellants’ arguments that equitable tolling saves their claims. Though we review de novo the district court‘s determinations with respect to the statute of limitations, we review for abuse of discretion its conclusions regarding the applicability of equitable tolling. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir. 2000).
Generally, the applicability of equitable tolling depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to
We need not address the potential choice-of-law issue presented by this question. Whether we apply California, New York, or federal law, Appellants are not entitled to equitable tolling either on account of the banks’ misrepresentations or due to extraordinary circumstances. As we have already explained, the banks “continually” denied liability to Appellants. Although Citibank, Chase and Chiao Tung offered inconsistent and contradictory support for those denials, it is clear that Appellants have had the information necessary to bring suit (i.e., that the banks refused to return their deposits) for many years. Therefore, the banks’ misrepresentations cannot support equitable tolling. See, e.g., Santa Maria, 202 F.3d at 1175, 1178 (“If a reasonable plaintiff would not have known of the existence of a possible claim . . . then equitable tolling will serve to extend the statute of limitations . . . until the plaintiff can gather what information he needs.“); Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (“Equitable tolling applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant . . . .“); Lantzy v. Centex Homes, 31 Cal.4th 363, 2 Cal.Rptr.3d 655, 73 P.3d 517, 532-33 (2003) (discussing the doctrine of equitable estoppel); Kotlyarsky v. New York Post, 195 Misc.2d 150, 757 N.Y.S.2d 703, 707 (N.Y. Sup. Ct. 2003) (citing Gleason v. Spota, 194 A.D.2d 764, 599 N.Y.S.2d 297, 299 (N.Y. App. Div. 1993) (stating that equitable estoppel will not toll a statute of limitations if “plaintiff possesses ‘timely knowledge’ sufficient to place him or her under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable Statute of Limitations“) (citation omitted)).
Nor have Appellants argued that any “extraordinary circumstances beyond [their] control made it impossible to file the claims on time.” Seattle Audubon Soc‘y v. Robertson, 931 F.2d 590, 595 (9th Cir. 1991) (noting that lack of access to courts caused by war supports equitable tolling); see also Scholar v. Pac. Bell, 963 F.2d 264, 267-68 (9th Cir. 1992) (holding that equitable tolling is applicable only in “extreme cases“).
Had Appellants offered any indication that, until recently, they themselves were unaware of their claims, were held in reeducation camps, or were in refugee camps, we would gladly consider their equitable tolling argument. But as the record stands, we have no indication that this occurred. At best, the complaint alleges that “Vietnam . . . did not resume relations with the United States until the late 1990s,” years before Appellants initiated their lawsuit. Still, Appellants fail to explain why after coming to the United States they delayed in making their claim. When pressed at oral argument, counsel for Appellants could only guess that his clients had failed to bring their claims for “lack of English” or “lack of knowledge of the American system.” While those difficulties are regrettable, they do not constitute cause for equitable tolling of the statute of limitations.
We do not doubt that the circumstances surrounding the regime change in Vietnam may have justified an extended tolling of the statute of limitations, but we see nothing to support the nearly thirty-year toll-
V
Finally, we ask whether exceptional circumstances render unreasonable this result. See Restatement (Second) of Conflicts of Law § 142 (instructing that the rule is to be followed “unless the exceptional circumstances of the case make such a result unreasonable“). To determine whether the result dictated by § 142 is unreasonable we are guided by the general choice-of-law principles set forth in the Restatement.
Under those provisions, we must consider the following factors to determine the applicable law:
- the needs of the interstate and international systems,
- the relevant policies of the forum,
- the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
- the protection of justified expectations,
- the basic policies underlying the particular field of law,
- certainty, predictability and uniformity of result, and
- ease in the determination and application of the law to be applied.
Restatement (Second) of Conflicts of Law § 6.
Unfortunately, the Restatement provides “scant instructions with respect to how and when its unreasonableness proviso should apply.” Cruz, 387 F.Supp.2d at 1079. We agree with the Northern District of California, however, that the test is triggered only when “exceptional circumstances” exist. Id. (internal quotation marks omitted). Though not defined in the Restatement, we are convinced that a wide range of factors may bear upon the analysis. At a minimum, though, exceptional circumstances must be “out of the ordinary course,” “unusual,” or “special.” See Oxford English Dictionary (2d ed. 1989). Though quite infrequent, the closure of international banks in countries experiencing extreme political or financial instability and civil war is neither special nor out of the ordinary,12 and it is hardly unusual for the statute of limitations to bar a cause of action that accrued nearly thirty years earlier. We can discern, and Appellants have offered, no other circumstance making this case exceptional. Thus, the result dictated by § 142 is reasonable.
VI
Accepting Appellants’ allegations as true, we regret that they will be deprived of the opportunity to recover funds solicited and, then, improperly concealed and withheld from them during a time of extreme crisis. The actions of Citibank, Chase, and Chiao Tung are questionable at best. Nevertheless, we must require litigants to abide by the procedural rules, including the statutes of limitations, established to promote fair and timely resolution of legal disputes. Applying the appropriate choice-of-law rules, Appellants’ claims are time-barred, and they cannot be saved by equitable tolling.
AFFIRMED.
Notes
If the law of an organization of nations, a foreign nation or a state other than this state, or a public entity in a foreign nation or a state other than this state, is applicable and such law cannot be determined, the court may, as the ends of justice require, either:
- Apply the law of this state if the court can do so consistently with the Constitution of the United States and the Constitution of this state; or
- Dismiss the action without prejudice or, in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action without prejudice.