Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

KIRBY v. MERCURY S&L ASSN.

November 5, 1990

JOHN D. KIRBY, Plaintiff,
v.
MERCURY SAVINGS AND LOAN ASSOCIATION, ET AL., Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 This is one of the many common law and statutory actions removed to this Court in recent months from various state courts across the country pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA"). Plaintiff moves to remand the case to the state court where it was filed, and two of the defendants, including the federally-chartered Resolution Trust Corporation ("RTC"), oppose. The motion presents an issue litigated repeatedly by dozens of lawyers in this Court over the past six months. See, e.g., Piekarski v. Home Owners Savings Bank, 743 F. Supp. 38 (D.D.C. 1990); Asbury v. Germania Bank, 752 F. Supp. 503 (D.D.C. 1990); United Savings Bank v. Rose, 752 F. Supp. 506 (D.D.C. 1990).

 The complaint was filed December 13, 1989, in the Superior Court for the State of California. Plaintiff, a San Diego, California resident, sued Mercury Savings and Loan Association of Huntington Beach, California and other California parties on a variety of counts concerning the sale of real property in San Diego County from Mercury to plaintiff.

 On May 25, 1990, the Office of Thrift Supervision declared Mercury insolvent and appointed the RTC as receiver and as conservator for the newly-created Mercury Federal.

 On September 17, 1990, RTC removed this action to this Court pursuant to FIRREA, 12 U.S.C. section 1441a(l)(3), asserting that this Court has original jurisdiction pursuant to 12 U.S.C. section 1441a(l)(1). Plaintiff claims that removal on this basis was not permitted by FIRREA.

 Section 1441a(l) of 12 U.S.C. states:

 
(1) Notwithstanding any other provision of law, any civil action, suit, or proceeding to which the [RTC] is a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction over such action, suit or proceeding.
 
(2) The [RTC] shall be substituted as a party in any civil action, suit, or proceeding to which its predecessor in interest was a party with respect to institutions which are subject to the management agreement dated February 7, 1989, among the Federal Savings and Loan Insurance Corporation, the Federal Home Loan Bank Board, and the Federal Deposit Insurance Corporation.
 
(3) The [RTC] may, without bond or security, remove any such action, suit, or proceeding from a State court to the United States District Court for the District of Columbia, or if the action, suit or proceeding arises out of the actions of the [RTC] with respect to an institution for which a conservator or a receiver has been appointed, the United States district court for the district where the institution's principal business is located. The removal of any action, suit, or proceeding shall be instituted --
 
(A) not later than 90 days after the date [RTC] is substituted as a party, or
 
(B) not later than 30 days after the date suit is filed against [RTC], if such suit is filed after August 9, 1989.

 Plaintiff argues that the phrase "any such action" in section 1441a(l)(3) refers only to actions designated immediately above in section 1441a(l)(2) -- i.e. only those involving institutions subject to the referenced 1989 management agreement. The parties are in agreement that Mercury is not such an institution. Therefore, plaintiff argues, section 1441a(l)(3) did not permit removal of this action.

 However, it appears from a fair reading of the statute as a whole that the phrase "any such action," despite the arrangement of paragraphs, refers to those actions described in section 1441a(l)(1), i.e. any case where the RTC is a party, rather than the subset of such cases described in section 1441a(l)(2). Plaintiff suggests no reason why Congress would have limited RTC's removal rights under FIRREA to those cases where RTC's predecessor in interest, FSLIC, was a party prior to FIRREA's enactment. Moreover, section 1441a(l)(3)(B) expressly contemplates removal by RTC of cases filed after the date FSLIC was replaced and therefore not covered by the 1989 management agreement. *fn1" The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.