The opinion of the court was delivered by: Walls, District Judge.
Plaintiff Valley National Bank ("Valley") owns all of the
shares of plaintiff Wayne Title, Inc. ("Wayne"). Valley acquired
Wayne to allow it to sell insurance products. Defendant Jaynee
LaVecchia ("the Commissioner") is the Commissioner of the New
Jersey Department of banking and Insurance ("the Department").
Valley has opened a branch in Riverdale, New Jersey, a town
with a population of 2,370 people, and Wayne Title will also be
located in Riverdale. Wayne Title has entered into an employment
agreement with a licensed insurance producer to sell title
insurance. On November 5, 1998, Valley applied to the Office of
the Comptroller of the Currency ("OCC") to establish Wayne Title
as an operating subsidiary to sell title insurance and other
insurance from Valley's branch in Riverdale. The OCC advised
Valley that it would await the grant of an insurance license
from the Department before acting on Valley's application.
On November 10, 1998, Valley applied to the Department for
Wayne Title to be licensed as an insurance provider for the
purposes of selling title insurance. The application was
returned to Valley, rejected for technical reasons. On December
16, 1998, Valley resubmitted its application to the Department.
During its communications with Valley, the Department informed
Valley that it would reject the application because it regards
Wayne as a "bank, trust company, bank and trust company or other
lending institution, mortgage service, mortgage brokerage or
mortgage guaranty company" for purposes of N.J.S.A. 17:46B-30.1
(a statute applicable to national banks doing business in a
place with fewer than 5,000 inhabitants), and that it would
enforce this statute against Valley and Wayne.
The plaintiffs filed a complaint in this Court on March 19,
1999, for a declaration that N.J.S.A. 17:46B-30.1 is preempted
by Article VI, Clause 2, of the United States Constitution ("the
Supremacy Clause") and by 12 U.S.C. § 92 ("Section 92"). The
complaint also seeks to permanently enjoin the Commissioner from
enforcing N.J.S.A. 17:46B-30.1 to the extent it is preempted by
Section 92, and to permanently enjoin the Commissioner from
otherwise restricting or interfering with the rights granted to
Valley under Section 92. On April 22, 1999, the Commissioner, by
letter, denied to Valley a license based on N.J.S.A.
17:46B-30.1. On April 30, 1999 Valley opened a branch in
Riverdale, New Jersey. On May 4, 1999, Valley filed a motion for
summary judgment on its request for declaratory and injunctive
Legal Standard for Summary Judgment
Summary judgment is appropriate where the moving party
establishes that "there is no genuine issue of fact and that
[it] is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). A factual dispute between the parties will not defeat a
motion for summary judgment unless it is both genuine and
material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute
is genuine if a reasonable jury could return a verdict for the
nonmovant and it is material if, under the substantive law, it
would affect the outcome of the suit. See id. at 248, 106
S.Ct. 2505. The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in court,
it would be insufficient to permit the nonmoving party to carry
its burden of proof.
See Celotex v. Catrett, 477 U.S. 317, 318, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986).
The party opposing a motion for summary judgement must set
forth specific facts showing a genuine issue for trial and may
not rest upon the mere allegations or denials of its pleadings.
See Sound Ship Building Corp. v. Bethlehem Steel Co.,
533 F.2d 96, 99 (3d Cir. 1976), cert. denied, 429 U.S. 860, 97 S.Ct.
161, 50 L.Ed.2d 137 (1976). At the summary judgment stage the
court's function is not to weigh the evidence and determine the
truth of the matter, but rather to determine whether there is a
genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In
doing so, the court must construe the facts and inferences in
the light most favorable to the non-moving party. See Wahl v.
Rexnord, Inc. 624 F.2d 1169, 1181 (3d Cir. 1980).
Section 92 provides that:
In addition to the powers now vested by law in
national banking associations organized under the
laws of the United States and any such association
located and doing business in any place the
population of which does not exceed five thousand
inhabitants . . . may, under such rules and
regulations as may be prescribed by the Comptroller
of the Currency, act as the agent for any fire, life
or other insurance company authorized by the
authorities of the State in which said bank is
located to do business in said State, by soliciting
and selling insurance. . . .
12 U.S.C. § 92. Acting pursuant to this Congressional
authorization, the OCC has promulgated 12 C.F.R. § 7.1001, which
Pursuant to 12 U.S.C. § 92, a national bank may act
as an agent for any fire, life or other insurance
company in any place the population of which does not
exceed 5,000 inhabitants. This provision is
applicable to any office of a national bank when the
office is located in a community having a population
of less than 5,000, even though the ...