FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 04-56105
Julie Doan Tran; NANCY LE
NGUYEN, a/k/a Nga Thi Le; HUAN
D.C. No.
CV-03-07748-TJH
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.
12021
12022 HUYNH v. CHASE MANHATTAN BANK
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 No. 05-55091
THI TON-NU, a/k/a Ton Nu Thi
Kien; HUY LE THI TRAN, a/k/a D.C. No.
CV-03-07748-TJH
Julie Doan Tran; NANCY LE OPINION
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;
HUYNH v. CHASE MANHATTAN BANK 12023
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.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Chief District Judge, Presiding
Argued and Submitted
April 3, 2006—Pasadena, California
Filed September 28, 2006
12024 HUYNH v. CHASE MANHATTAN BANK
Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,
Circuit Judges, and Robert C. Jones,* District Judge.
Opinion by Judge D.W. Nelson
*The Honorable Robert C. Jones, District Judge for the District of
Nevada, sitting by designation.
12028 HUYNH v. CHASE MANHATTAN BANK
COUNSEL
Federico C. Sayre, Mark S. Brown, Law Offices of Federico
C. Sayre, Santa Ana, California; Thu-Cuc T. Phung, West-
minster, California; Bicvan Thi Brown, New Port Beach, Cal-
ifornia, for the plaintiffs-appellants.
Richard B. Kendall, Melissa R. McCormick, Irell & Manella,
LLP, Los Angeles, California, for defendants-appellees The
Chase Manhattan Bank and Citigroup, N.A. Angela L.
Padilla, Robert S. Stern, Morrison & Foerster, LLP, Los
Angeles, California, for defendant-appellee Chiao Tung Bank
Co.
OPINION
D.W. NELSON, Senior Circuit Judge:
Proposed class representatives of Vietnamese bank deposi-
tors 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 28 U.S.C. § 1291 and
affirm, discussing many of the heretofore unaddressed issues
raised by this case.
I
After several years of conflict, Saigon, the capital of the
Republic of Vietnam (South Vietnam), was surrendered
HUYNH v. CHASE MANHATTAN BANK 12029
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 men-
tion 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 unan-
nounced 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 Ange-
les 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.-
charted 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 Federal Rule of
Civil Procedure 12(b)(6), claiming that the action was time-
barred by the New York statute of limitations governing
claims arising from contract and fraud. Separately, Chiao
Tung moved to dismiss the complaint as barred by the statute
1
Appellants filed their original complaint on April 11, 2003, but they
did not serve that complaint on any of the seven defendants. We refer to
the first amended complaint as the complaint.
12030 HUYNH v. CHASE MANHATTAN BANK
of limitations under California, Vietnamese, and Taiwanese
law. In support of its motion, Chiao Tung requested that the
district court take judicial notice of the statutes of limitations
in both Taiwan and Vietnam, providing declarations in sup-
port thereof. No other evidence of foreign law was offered
before the district court.
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). Accepting as true the allegations in the com-
plaint, as we must when reviewing a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), Mir v. Little Co. of
Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988), we must
determine whether “the running of the statute is apparent on
the face of the complaint.” Jablon v. Dean Witter & Co., 614
F.2d 677, 682 (9th Cir. 1980); see also Supermail Cargo, Inc.
v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (“[A]
complaint cannot be dismissed unless it appears beyond doubt
that the plaintiff can prove no set of facts that would establish
the timeliness of the claim.”).
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
HUYNH v. CHASE MANHATTAN BANK 12031
plaintiffs’ claims fall within the relevant limitations
period.
Id. at 1070. We endorse and apply this approach.
[1] Chase removed this action to federal court pursuant to
12 U.S.C. § 632, which invests in the federal courts original
jurisdiction over cases arising out of foreign banking transac-
tions to which a U.S. corporation is a party. Therefore, our
jurisdiction is not based on diversity of citizenship. In this
context, federal common law choice-of-law rules apply. See
Chuidian v. Philippine Nat’l Bank, 976 F.2d 561, 564 (9th
Cir. 1992) (holding that, where jurisdiction is not premised on
diversity of citizenship, federal common law governs);
Schoenberg v. Exportadora de Sal, S.A. de C.V., 930 F.2d
777, 782 (9th Cir. 1991) (same).
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:
(1) The forum will apply its own statute of limita-
tions barring the claim.
(2) The forum will apply its own statute of limita-
tions permitting the claim unless:
(a) maintenance of the claim would serve
no substantial interest of the forum;
and
(b) 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
12032 HUYNH v. CHASE MANHATTAN BANK
choice-of-law principles stated in Restatement (Second) of
Conflicts of Law § 6. See Restatement (Second) of Conflicts
of Law § 142.
A
[2] Applying § 142, we must first consider whether applica-
ble 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.
[3] Under the California Code of Civil Procedure there is
no time limitation on an action brought to recover bank
deposits. Cal. Civ. Proc. Code § 348.2 However, a borrowing
statute limits that broad rule where, as here, the circumstances
giving rise to the cause of action occurred outside of the state:
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 rea-
son of the lapse of time, an action thereon shall not
be maintained against him in this State. . . .
Cal. Civ. Proc. Code § 361. California’s borrowing statute, in
turn, includes an exception providing that, if one is a “citizen
of th[e] State” who has held the cause of action since it
accrued, § 361 will not prevent his or her claim. Cal. Civ.
Proc. Code § 361.
[4] Appellants’ complaint indicates that most named plain-
tiffs are “residents” of California. Therefore, reading the com-
plaint with the required liberality, see Jablon, 614 F.2d at 682,
many of the proposed class members may be citizens of Cali-
2
In relevant part, § 348 states, “To actions brought to recover money or
other property deposited with any bank . . . there is no limitation.” Cal.
Civ. Proc. Code § 348.
HUYNH v. CHASE MANHATTAN BANK 12033
fornia 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.,
133 Cal. Rptr. 2d 376, 382 (Ct. App. 2003); Flowers v. Car-
ville, 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
[5] 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 Manhat-
tan 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 natu-
ral 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
12034 HUYNH v. CHASE MANHATTAN BANK
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, 231 P.2d 873, 875 (Cal.
Ct. App. 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 Can-
ning Co., 137 P.2d 463, 465 (Cal. Ct. App. 1943); People v.
Honey Lake Valley Irr. Dist., 246 P. 819, 820 (Cal. Ct. App.
1926); Miguel v. Miguel, 193 P. 935, 936 (Cal. 1920) (“That
a cause of action for money payable on demand accrues with
the inception of the obligation and without the necessity for
any demand hardly requires the citation of authority.”).
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,
218 P. 424, 429-430 (Cal. 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 bal-
ance 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’ Natl. Bank of Los
Angeles, 216 P. 1012 (Cal. 1923); Zuck v. Culp, 59 Cal. 142,
148 (1881).
[6] 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:
HUYNH v. CHASE MANHATTAN BANK 12035
[N]o one can suspend the running of the statute of
limitations indefinitely and thereby defeat its pur-
pose by unreasonably delaying the making of a
demand or by unreasonably delaying the doing of
some other act. . . . A party cannot by his own negli-
gence, or for his own convenience, stop the running
of the statute.
O’Hair v. U.S. Fidelity & Guaranty Co., 49 P.2d 1129, 1130
(Cal. Ct. App. 1935) (internal quotation marks omitted); see
also Phillis v. City of Santa Barbara, 40 Cal. Rptr. 27, 31 (Ct.
App. 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., 284 P.2d 937, 939 (Cal. Ct. App.
1955); see also Vickrey v. Maier, 129 P. 273, 275 (Cal. 1913);
Bogart v. George K. Porter Co., 223 P. 959 (Cal. 1924); Phil-
lis, 40 Cal. Rptr. at 31; Brock v. W. Nat’l Indem. Co., 281
P.2d 571, 576 (Cal. Ct. App. 1955); Ilse v. Burgess, 83 P.2d
527, 529 (Cal. Ct. App. 1938).
[7] 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
3
In any event, Appellants’ interactions with Citibank and Chase since
1975 may have constituted a demand under California law. Appellants
allege that they have been “constantly thwarted in their attempts to recover
funds”; they allege that the banks “unjustly blocked accounts,” “refused
12036 HUYNH v. CHASE MANHATTAN BANK
[8] Moreover, the same cases acknowledging the demand
requirement for bank deposits explain that the statute of limi-
tations begins to run not only when demand is made but also
when “there is some act on the part of the bank dispensing
with such demand.” Glassell, 216 P. at 1016 (citing cases);
see also Union Tool, 218 P. at 429. Therefore, “[w]here . . .
the bank, either in terms or in effect, has denied liability to the
depositor for the amount in question” the demand requirement
is inapplicable and the statute of limitations is set in motion.
Glassell, 216 P. at 1016; see also Union Tool, 218 P. at 429.
We are convinced that the closure of the banks, followed by
their continual representations to Appellants that the banks
were released of their obligations unequivocally—both “in
terms and in effect”—constituted such a denial of liability dis-
pensing with the demand requirement. See Mitchell v. Beck-
man, 28 P. 110, 112 (Cal. 1883) (holding that a bank
defaulted on deposits only “when it closed its doors, and by
its acts spoke as significantly as words to that effect: ‘We
refuse to pay any one. It is useless to present your bank-book
or demand . . . .”).
[9] 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
to return the looted assets,” and “refus[ed] to allow withdrawals.” Even
construing the complaint in the light most favorable to Appellants, we
must infer from these allegations that Appellants attempted to recover
their deposits, make withdrawals from their accounts, and reacquire the
looted assets. In California, it appears that such actions constitute demands
sufficient to start the statute of limitations running. See Bills v. Silver King
Mining Co., 39 P. 43, 45 (Cal. 1895) (holding that “no particular form of
demand is necessary” and an inquiry regarding payment was sufficient to
start the statute of limitations running).
4
Appellant Gerardus Fernandez, a California resident and Chase deposi-
tor, was a U.S. serviceman stationed in South Vietnam at the time of the
HUYNH v. CHASE MANHATTAN BANK 12037
California’s borrowing statute. Therefore, whether Appel-
lants’ action is barred by California law is dependent on the
law of Vietnam (where the cause of action arose).
III
A
[10] 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 dec-
laration, which was not before the district court. That declara-
tion concludes that either Vietnamese law does not bar
Appellants’ claims or the statute of limitations has been tolled
for depositors who left Vietnam.
[11] 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 omit-
ted). These principles counsel powerfully against noticing
Appellants’ declaration because they did not object to (or
even address) Chiao Tung’s request for judicial notice.
bank’s closure. Drawing inferences in his favor, we must assume he was
a citizen of California when the cause of action accrued, so he benefits
from the citizen of the state exception to Cal. Civ. Proc. Code § 361. For
the reasons expressed in Section III.B, his claims are, nevertheless, time-
barred.
12038 HUYNH v. CHASE MANHATTAN BANK
[12] 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 dis-
missal of the complaint against Chiao Tung was proper.
B
[13] 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 deter-
mines 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 for-
eign law is applicable but it is neither pled nor proven, Cali-
fornia permits the court to apply the law of California. Cal.
Evid. Code § 311;6 Gagnon Co. v. Nev. Desert Inn, 289 P.2d
5
In fact, the banks have spent considerable time and energy arguing
erroneously that Vietnamese law cannot and should not apply.
6
That rule provides:
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:
(a) Apply the law of this state if the court can do so consis-
tently with the Constitution of the United States and the Con-
stitution of this state; or
(b) Dismiss the action without prejudice or, in the case of a
reviewing court, remand the case to the trial court with direc-
tions to dismiss the action without prejudice.
Cal. Evid. Code § 311. We can discern no reason that the “ends of justice”
would prevent the court from applying California law.
HUYNH v. CHASE MANHATTAN BANK 12039
466, 471 (Cal. 1955); Ferrell v. S. Nev. Off-Road Enthusiasts,
Ltd., 195 Cal. Rptr. 90, 92 (Ct. App. 1983).
i
[14] As discussed above, California does not impose a stat-
ute of limitations on actions to recover bank deposits, Cal.
Civ. Proc. Code § 348, so Appellants’ actions against Citi-
bank and Chase are not time-barred in the forum state. That
conclusion, however, does not end our analysis. If the action
is not barred by the law of the forum state, we must, neverthe-
less, ask (1) whether the forum state has a substantial interest
in the claim and (2) whether the laws of any other jurisdiction
with “a more significant relationship to the parties” bars the
action. Restatement (Second) of Conflict of Laws § 142(2).
[15] Primarily, Appellants argue that California has a sub-
stantial interest in this action because all but two of the pro-
posed 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 recog-
nize after-acquired residence as a source of governmental
interest on the grounds that consideration of this factor would
encourage forum shopping.” McGhee v. Arabian Am. Oil Co.,
871 F.2d 1412, 1422 (9th Cir. 1989) (citing cases); see also
Cossman v. DaimlerChrysler Corp., 133 Cal. Rptr. 2d 376,
7
We do not reach Appellants’ only other argument in this respect—that,
after the surrender of Saigon to North Vietnam, Citibank and Chase per-
petuated their fraud in California by soliciting deposits at refugee camps,
including one at Camp Pendleton, California. The specific allegation is
made with reference only to unidentified class members; not one of the
proposed class representatives alleges that he or she was defrauded in this
manner. It is well settled that “[a]t least one named plaintiff must satisfy
the actual injury component of standing in order to seek relief on behalf
of himself or the class.” Casey v. Lewis, 4 F.3d 1516, 1519 (9th Cir. 1993)
(citing O’Shea v. Littleton, 414 U.S. 488, 494-95 (1973)).
12040 HUYNH v. CHASE MANHATTAN BANK
382 (Ct. App. 2003); Giest v. Sequoia Ventures, Inc., 99 Cal.
Rptr. 2d 476, 478 (Ct. App. 2001). There is every indication,
then, that California itself would disclaim interest in the
action. Cf. Reich v. Purcell, 63 Cal. Rptr. 31, 34 (1967) (con-
cluding California was “disinterested” in a dispute where its
only connection was plaintiff’s after-acquired residence).
[16] Moreover, the fact that most Appellants and, appar-
ently, 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 perfor-
mance. 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 expecta-
tion at the time the causes of action accrued that the banks
would perform in California: the alleged contracts were exe-
cuted in Vietnam with Chase and Citibank, both head-
quartered 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 v. Chase Manhattan Bank, 660 F.2d 854, 863-
65 (2d Cir. 1981).
[17] As Appellants offer no other basis supporting Califor-
nia’s interest, we conclude that California does not have a
substantial interest in this case.
ii
Since maintenance of Appellants’ claim serves no substan-
tial interest of the forum state, we must determine whether
8
Although California may have an interest in allowing its citizens to
maintain legal claims, for the reasons discussed in Section III.B.i, this
does not amount to a “substantial interest.”
HUYNH v. CHASE MANHATTAN BANK 12041
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 rela-
tionship 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 respect to
Citibank and Chase, none of the parties has offered any evi-
dence of Vietnamese law upon which we might rely. There-
fore, we need not decide whether, when presented with more
than one state with a significant relationship to the parties,
federal common law requires us to elect the state with the
most significant relationship. We focus, instead, on whether
the laws of New York permit or bar the action.
[18] Under New York law, Appellants’ claims are barred
by the six year statute of limitations for contractual and fraud
claims. N.Y. C.P.L.R. 213(2), (8). Although, New York’s
9
In Trinh v. Citibank, 850 F.2d 1164, 1167 n.2 (6th Cir. 1988), an ear-
lier case arising out of the 1975 closure of foreign banks in Saigon, the
Sixth Circuit noted that it considered Vietnam to be the forum with the
most significant contacts with the case because “all of the indicators poin-
t[ed] to a conclusion that Vietnamese [substantive] law applie[d]. Plain-
tiff’s citizenship was Vietnamese, and his father, [the bank], the banking
relationship, the banking transactions, and the account currency were all
located in Vietnam.” We agree.
10
Edelmann, which arose out of the closure of foreign bank branches in
Cuba following Fidel Castro’s ascendence to power, illustrates why the
banks’ headquarters are viable fora. See Edelmann, 861 F.2d at 1294-96.
Faced with the choice of Puerto Rico (plaintiffs’ residence), Cuba (where
the action arose), and New York (the defendant bank’s headquarters), the
First Circuit applied New York law because, when a bank’s branch con-
ducts operations, the ultimate place of performance is the bank’s main
office, not the branch. Id. We are convinced by this analysis that New
York has more significant contact with the parties than does California.
See Restatement (Second) of Conflicts of Law § 188(2) (noting relevant
contacts in a contract action are “(a) the place of contracting, (b) the place
of negotiation, (c) the place of performance, (d) the location of the subject
matter of the contract, and (e) domicile, residence, place of incorporation,
and place of business of the parties”).
12042 HUYNH v. CHASE MANHATTAN BANK
general rule is that a cause of action accrues when a depositor
makes a demand on the bank, N.Y. C.P.L.R. 206(a)(2), that
rule also contemplates its inapplicability in situations where
no demand is necessary. See Bao v. Bank of Am., No. 84 Civ.
6013, 1986 WL 1807, at *2 (S.D.N.Y. Feb. 3, 1986) (“[T]he
six-year statute begins to run at the moment when a demand
is made by the depositor, unless no demand is necessary.”).
Indeed, it has long been established that futility of demand
renders it unnecessary. And, the closure of a bank is recog-
nized as an example of such futility. Sokoloff v. Nat’l City
Bank of N.Y., 164 N.E. 745, 749 (N.Y. 1924) (“The fact that
the bank had gone out of business on that date made a demand
useless and unnecessary . . . . [T]hat which becomes impossi-
ble and useless ceases to be required by the law in cases like
this.”). In such circumstances, the bank’s closure constitutes
repudiation of the contract and the cause of action accrues at
that time. Tillman v. Guar. Trust Co., 171 N.E. 61, 61-62
(N.Y. 1930) (per curiam) (“The period of limitation during
which an action may be brought must be computed from the
time of the accruing of the right to relief by action . . . . By
failure to make a demand which is unnecessary, a depositor
cannot prevent the period of limitation from running against
a cause of action which he is entitled to maintain without
demand.”).
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.
HUYNH v. CHASE MANHATTAN BANK 12043
Thus, under New York law, Appellants’ claims against Citi-
bank and Chase are barred.11
IV
Having concluded that Appellants’ causes of action are
barred against all of the defendants, we must consider Appel-
lants’ 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 dismiss (where review is lim-
ited to the complaint) if equitable tolling is at issue. Super-
mail, 68 F.3d at 1206. Nevertheless, we cannot say that the
district court abused its discretion here. As a preliminary mat-
ter, we recall that, by its very nature, equitable tolling con-
cerns itself with the equities of dismissal for untimely filing
caused by factors independent of the plaintiff. Accordingly,
we must ask whether it would be unfair or unjust to allow the
statute of limitations to act as a bar to Appellants’ claims. We
conclude that it would not.
[19] 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
11
We note that New York has a borrowing statute providing that an
action arising outside of New York must be timely under both New York
law and the law of the jurisdiction where the action accrued. N.Y.
C.P.L.R. 202. Since Appellants’ actions are barred by New York law, we
need not consider Vietnamese law. See Tat Ba, 616 F. Supp. at 11 n.4.
12044 HUYNH v. CHASE MANHATTAN BANK
explained, the banks “continually” denied liability to Appel-
lants. 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 can-
not 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 toll-
ing applies when the plaintiff is prevented from asserting a
claim by wrongful conduct on the part of the defendant
. . . .”); Lantzy v. Centex Homes, 73 P.3d 517, 532-33 (Cal.
2003) (discussing the doctrine of equitable estoppel); Kotlyar-
sky v. New York Post, 757 N.Y.S.2d 703, 707 (N.Y. Sup. Ct.
2003) (citing Gleason v. Spota, 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 knowl-
edge’ sufficient to place him or her under a duty to make
inquiry and ascertain all the relevant facts prior to the expira-
tion of the applicable Statute of Limitations”) (citation omit-
ted)).
[20] 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
HUYNH v. CHASE MANHATTAN BANK 12045
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, coun-
sel for Appellants could only guess that his clients had failed
to bring their claims for “lack of English” or “lack of knowl-
edge 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 sup-
port the nearly thirty-year tolling Appellants seek here. Thus,
the district court did not abuse its discretion.
V
Finally, we ask whether exceptional circumstances render
unreasonable this result. See Restatement (Second) of Con-
flicts 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 dic-
tated 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:
(a) the needs of the interstate and international sys-
tems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states
and the relative interests of those states in the deter-
mination of the particular issue,
12046 HUYNH v. CHASE MANHATTAN BANK
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field
of law,
(f) certainty, predictability and uniformity of result,
and
(g) ease in the determination and application of the
law to be applied.
Restatement (Second) of Conflicts of Law § 6.
[21] Unfortunately, the Restatement provides “scant
instructions with respect to how and when its unreasonable-
ness 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 circum-
stances” 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 ordi-
nary course,” “unusual,” or “special.” See Oxford English
Dictionary (2d ed. 1989). Though quite infrequent, the closure
of international banks in countries experiencing extreme polit-
ical 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.
12
Notable examples include Russia in 1918, e.g., Sokoloff, 164 N.E. at
745; Mexico in 1920, e.g., Russek v. Angulo, 236 S.W. 131 (Tex. Civ.
App. 1921); Czechoslovakia in 1939, e.g., Werfel v. Zivnostenska Banka,
23 N.Y.S.2d 1001 (App. Div. 1940); Cuba in 1959, e.g., Garcia, 735 F.2d
at 645; and Liberia in 1991, e.g., Bridgeway Corp. v. Citibank, N.A., 45
F.Supp. 2d 276 (S.D.N.Y. 1999).
HUYNH v. CHASE MANHATTAN BANK 12047
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.