UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL COUNCIL OF THE

CHURCHES OF CHRIST IN THE USA,

Plaintiff-Appellant,

v. No. 97-1851

FIRST UNION NATIONAL BANK OF

VIRGINIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CA-96-1446-A)

Argued: May 6, 1998

Decided: July 22, 1998

Before WIDENER and MOTZ, Circuit Judges, and

HOWARD, United States District Judge for the

Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Richard Francis Lawler, WHITMAN, BREED, ABBOTT

& MORGAN, L.L.P., New York, New York, for Appellant. Grady

Craven Frank, Jr., HAZEL & THOMAS, P.C., Alexandria, Virginia,

for Appellee. ON BRIEF: Philip M. Smith, WHITMAN, BREED,
ABBOTT & MORGAN, L.L.P., New York, New York; Michael

McGettigan, RICHARDS, MCGETTIGAN, REILLY & WEST, P.C.,

Alexandria, Virginia, for Appellant. Thomas C. Junker, HAZEL &

THOMAS, P.C., Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant, The National Council of the Churches of Christ ("NCC"),1

argues the district court erred in granting judgment as a matter of law

for First Union National Bank of Virginia ("FUNB") as to NCC's

three state law claims pursuant to Fed. R. Civ. P. 50(a)(1). The district

judge found the state law claims were pre-empted by Regulation J.

I.

Rule 50(a) provides that, in actions tried before a jury, the district

court may grant a motion for judgment as a matter of law if "a party

has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." Fed. R. Civ.

P. 50(a)(1). We review a district court's grant of judgment as a matter

of law de novo. See Marlone v. Microdyne Corp., 26 F.3d 471, 475

(4th Cir. 1994); Parker v. Prudential Ins. Co. , 900 F.2d 772, 776 (4th

Cir. 1990). Finding no error, we affirm the district court.

II.

NCC instituted this action on October 8, 1996, claiming that FUNB

wrongfully permitted approximately $8 million of NCC's funds to be

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1 NCC is a non-profit corporation representing approximately thirtyfour Protestant and Orthodox churches.

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wire transferred out of an account at FUNB. NCC had an account at

FUNB which had been opened by NCC's director of human

resources, Emilio Carrillo ("Carrillo"). There was apparently a "scam"

orchestrated by an individual named Michael Crawford ("Crawford"),

a purported investment advisor and principal of Libra Investments,

Ltd. ("Libra"), who convinced Carrillo to transfer NCC's funds to the

First Union account.

Carrillo was authorized by NCC's governing board to pool and

administer NCC's funds for the payment of health insurance premiums for NCC's retired employees. Carrillo discussed his plans for

investing the funds with various NCC employees, including several

of its senior officials. Sometime in November 1993, Carrillo met with

Crawford to discuss Crawford's proposals for investing the funds. On

December 21, 1993, Carrillo signed an escrow agreement with Crawford, on behalf of Libra, which provided that Libra would act as

escrow agent and would manage monies of NCC in an escrow

account to be established at FUNB. The escrow agreement had the

corporate seal of both NCC and Libra.

On December 21, 1993, Crawford presented the escrow agreement

to the Reston Town Center Virginia Branch of FUNB and opened an

escrow account captioned "National Council of Churches of Christ,

Libra Investments, Ltd. Escrow Agent." Crawford, Carrillo, and two

other NCC executives later signed signature cards for that account.

The signature cards provided that FUNB would recognize any of

those signatures in the payment of funds or in the transaction of other

business in or for the escrow account.

Sometime around December 22, 1993, Carrillo met with NCC's

controller, Leo Lamb ("Lamb") and explained certain investments that

Carrillo had discussed with Crawford. During that meeting, Carrillo

requested that Lamb initiate a wire transfer of $8 million of NCC's

funds from NCC's account at Chemical Bank in New York to the

escrow account at FUNB in Virginia. Thereafter, Lamb approved the

transfer which occurred in two installments--$3 million on December

22, 1993, and $5 million on December 29, 1993.

On December 30, 1993, Crawford, the escrow agent and an authorized signatory, directed FUNB to wire transfer $7.9 million to an

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account at Boston Private Bank, where the funds were to be used to

purchase "Prime Bank Guarantees." FUNB complied with that directive later in the day, transferring the money by"Fedwire."2 On January 3, 1994, FUNB transferred $80,000 from the escrow account to

an account at Crestar Bank, again pursuant to Carrillo's instructions

and again by Fedwire.

After discovering that the Prime Bank Guarantees were worthless

and that it had been defrauded by Crawford, NCC filed suit against

FUNB.3 NCC alleged four grounds for recovery: Count One claimed

that because the two wire transfers were unauthorized by NCC,

FUNB was liable under Va. Code Ann. § 8.4A-202 (the Regulation

J claim);4 Count Two alleged that FUNB breached an implied contract by allowing the account to be opened and thereafter permitting

the wire transfer; Count Three claimed FUNB breached a duty to

NCC as a depositor and a customer; and Count Four alleged FUNB's

actions were negligent. FUNB's motion to dismiss and subsequent

motion for summary judgment were denied by the district court and

a jury trial commenced on May 20, 1997.

At the close of NCC's presentation of evidence, FUNB moved for

judgment as a matter of law on NCC's three state law claims, Counts

Two, Three and Four, arguing that those claims were pre-empted by

Regulation J under this court's analysis in Donmar Enters. v. Southern Nat'l Bank of N.C., 64 F.3d 944 (4th Cir. 1995). The district court

judge granted FUNB's motion finding that NCC's state law claims

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2 Fedwire, or the Federal Reserve Wire Transfer Network, is a fundstransfer system owned and operated by the twelve Federal Reserve

Banks. See 12 C.F.R. § 210.26(e). It is a computer-linked payment and

message system among Federal Reserve Banks and banks with Fedwire

privileges.

3 FUNB submits that beginning in March 1994, NCC initiated litigation

in England and elsewhere in which it alleged it had been defrauded by

several European entrepreneurs in connection with the use of the wire

transferred funds to purchase the Prime Bank Guarantees. NCC recovered approximately $5.17 million from those actions.

4 Because the wire transfers were made by Fedwire, NCC's Count One

was deemed amended during trial to state a claim under Regulation J,

instead of Va. Code Ann. § 8.4A-204(a). J.A. p. 454.

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were pre-empted. The case then went forward on Count One, NCC's

claim under Regulation J. The jury deliberated approximately fortyfive minutes before returning a verdict for FUNB. NCC appeals the

trial court's decision to dismiss the three state law claims, contending

that these claims are not pre-empted by Regulation J because the

claims are directed towards FUNB's conduct prior to the wire transfer.

III.

NCC's first cause of action is governed by Article 4A of the Uniform Commercial Code ("UCC") because FUNB's December 30,

1993, transfer of funds was sent by Fedwire. Moreover, Federal

Reserve Board Regulation J, also applies because Regulation J adopts

Article 4A of the UCC as the governing statute for funds transfers

within the Fedwire system. 12 C.F.R. § 210.25(b)(1). Although Regulation J incorporates the provisions of Article 4A, the commentary to

Subpart B provides that any provisions of Article 4A that are inconsistent with Subpart B are expressly pre-empted. 12 C.F.R. § 210,

Subpt. B, App. A. Courts may resort to principles of law or equity

outside of Article 4A so long as these principles do not create rights,

duties and liabilities inconsistent with those stated in Article 4A. See

Donmar Enters. v. Southern Nat'l Bank of N.C., 64 F.3d 944, 949 (4th

Cir. 1995) (citing the Official Commentary to UCC§ 4A-102.)

NCC concedes that the "wrongful" wire transfer on December 30,

1993, is covered by Regulation J and that if all its claims were

directed to this wrongful transfer, the state law claims would be preempted. NCC argues, though, that their state law claims are not inconsistent with Regulation J because they are directed at FUNB's conduct prior to the wire transfer and not merely the transfer itself. For

example, NCC claims that FUNB should not have allowed the

account to be opened. NCC also claims FUNB was negligent and

breached certain implied duties to NCC both in allowing Crawford to

effect his defrauding scheme and ignoring all of the blatant signs that

Crawford was a con man.

The most comprehensive discussion of Regulation J occurred in a

district court case in this circuit under facts similar to the present case.

In Donmar Enters. Inc. v. Southern Nat'l Bank of North Carolina,

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828 F. Supp. 1230 (W.D.N.C. 1993) (Potter, J.) ("Donmar I"), aff'd,

64 F.3d 944 (4th Cir. 1995) ("Donmar II"), the district court found

that any legal remedies provided for by state law which contradict or

are duplicative of the remedies afforded by Regulation J and its purposes are "inconsistent provisions" within the meaning of 12 C.F.R.

§ 210.25(a), and are thus displaced by the pre-emptive effect of Regulation J from furnishing either a contradictory or"additional remedy

for losses resulting from transactions within the FedWire system." Id.

at 1236.

As to duplicative causes of action, such as wrongful payment and

negligence, the district court found pre-emption of state law because

"[these causes of action] do not relate exclusively to `governing funds

transfers. . . .'" and "[o]nly those provisions of state law which are

compatible with Regulation J and are directed solely at `governing

funds transfers' are expressly declared free from pre-emption by Regulation J." Id. (citing Commentary, 12 C.F.R. § 210.25(a)). The court

also addressed the issue of pre-emption of plaintiff's negligence claim

and found the claim pre-empted because Regulation J contains its

own standards of care.

In affirming the district court, this court concurred that inconsistent

provisions of state law are pre-empted, but state law which does not

conflict with Regulation J is not pre-empted. Donmar II, 64 F.3d at

949. An example of such a non-conflicting state law is one governing

funds transfers that applies to parties to which the federal Article 4A

does not apply. Id. (citing Appendix A to Subpart B to Part 210, 12

C.F.R. § 210.25). However, in Donmar as in the case sub judice, Article 4A does apply.

This court determined in Donmar that because the bank had complied with, and therefore had no liability under, Subpart B, "any liability founded on state law of negligence or wrongful payment would

necessarily be in conflict with the federal regulations and is preempted." See id. By the same reasoning, this court is unpersuaded by

NCC's contention that FUNB's actions occurring before the wire

transfer are actionable in addition to the remedy provided under Regulation J. NCC's state law claims all arise out of their losses suffered

when FUNB transferred the $7.9 million. Were it not for the alleged

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unauthorized transfer, NCC could not be heard to complain as they

would have suffered no damages.

After being fully instructed on the law concerning Regulation J, the

jury determined that FUNB was not liable to NCC for damages. The

jury found FUNB properly transferred the money under Regulation J.

Thus, this court's imposition of additional state liabilities on FUNB

would result in an inconsistent, and therefore pre-empted, outcome.

NCC cannot compartmentalize and detach its state causes of action

simply because certain of FUNB's activities occurred before the

transfer when such causes of action would not have been available

minus the resulting transfer. FUNB's December 30 transfer is the

action which allegedly injured NCC, and that transfer is covered by

Regulation J. Accordingly, Regulation J pre-empts NCC's state

causes of action, and those claims were properly dismissed by the trial

court judge.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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