1. In this action for breach of contract the motion of the defendant National Bank of Commerce (bank) to dismiss on the ground of improper venue (Mass.R.Civ.P. 12[b], 365 Mass. 755 ) should have been allowed. The bank is a national bank with a principal place of business in Dallas, Texas. It is well settled that the provisions of 12 U.S.C. Section 94 (1970) (which provides in substance that a national bank may elect to be sued in a Federal court "within the district in which [it is] . . . established" or in a State court "in the county or city in which [it] . . . is located"), upon which the bank relied in support of its motion, are mandatory and not permissive. National Bank of No. America v. Associates of Obstetrics & Female Surgery, Inc., 425 U.S. 460, 461 (1976). Radzanower v. Touche Ross & Co., 426 U.S. 148, 152 (1976). See Citizens & So. Nat'l Bank v. Bougas, 434 U.S. 35, 38 (1977). Neither of the generally recognized exceptions to the venue requirement -- a purely local cause of action or a waiver by the bank (First Fed. Sav. & Loan Assn. v. Merrimack Valley Nat'l Bank, 5 Mass. App. Ct. 320 , 322 ) -- applies to this case. Compare Michigan Nat'l Bank v. Superior Court, 23 Cal. App. 3d 1, 6-13 (1972), and Robbins, Coe, Rubinstein & Shafran, Ltd., v. Ro Tek, Inc., 23 Ill. App. 3d 705, 707-710 (1974), with Central Bank v. Superior Court, 30 Cal. App. 3d 913, 918-919 (1973). That the application of Section 94 may cause inconvenience to a plaintiff is irrelevant. First Nat'l Bank v. United States Dist. Court, 468 F.2d 180, 184 (9th Cir. 1972). 2. In view of our disposition of the first issue, it is unnecessary to consider the second issue raised by the bank on appeal. 3. The judgment is reversed, and a new judgment is to enter dismissing the action as to the bank.
1. It was not error to deny the defendant's pretrial motion to suppress the victim's anticipated identification of the defendant as the man who had raped her; it is clear from the face of the motion and from the argument of defense counsel that the motion raised no constitutional question and was directed solely to the weight which should be accorded to the victim's testimony. 2. The defendant was not harmed by the judge's refusal to strike out the unresponsive portion of the victim's answer to the question as to what she had said to her brother immediately following the rape; the unresponsive portion was material to the issue of the identity of the rapist, and virtually the same evidence was
subsequently admitted without objection during the direct questioning of the brother on the same subject.