Id. at 106. As to the provision contained in Section 1821(d)(5)(F)(ii), which is identical to Section (d)(8)(E)(ii), the Mustang Court held, id., that
this provision cannot be construed in any way to support [defendant's] contention that its counterclaims survive its failure to comply with FIRREA's claim requirements. On the contrary, we conclude that [defendant's] right to continue its pending lawsuit is dependent upon its compliance with FIRREA's claims provisions. See 12 U.S.C. 1821(d)(6)(B).
The plaintiff also relies on Coit Independence v. FSLIC, 489 U.S. 561, 103 L. Ed. 2d 602, 109 S. Ct. 1361 (1989), a pre-FIRREA Supreme Court decision, to argue that the administrative procedures set forth in Section 1821(d) do not divest federal courts of subject matter jurisdiction to determine the validity of claims against institutions under federal receivership. The Court finds, however, that RTC's reliance on the district court's holding in Circle Industries v. City Federal Sav. Bank, 749 F. Supp. 447 (E.D.N.Y 1990), aff'd 931 F.2d 7 (2d Cir. 1991), is well founded. In Circle, the court examined the legislative history of FIRREA's provisions on claims determination and found it "clearly indicated" that
Congress intended that a district court not have subject matter jurisdiction of state law claims asserted against RTC similar to those claims asserted against the FSLIC in Coit [citation omitted], until those claims are first presented to and adjudicated by the RTC or the FDIC. (See 12 U.S.C. Sections 1821(d)(5) and (d)(13)(D)).
Id. at 454. Coit, the court noted, involved facts in which FSLIC was appointed receiver
two months after the plaintiff . . . filed suit in the state court. . . . Justice O'Connor, writing for seven of the nine justices on the Court, explicitly stated that in accordance with Article III of the United States Constitution, a federal district court need not have original subject matter jurisdiction of state law claims asserted against the FSLIC so long as (1) "the Bank Board's regulations only required claimants to give FSLIC notice of their claims and then wait for a reasonable period of time before filing suit while FSLIC decided whether to pay, settle, or disallow the claim" [quoting Coit], and (2) the regulations contemplated de novo district court review of any adjudicatory findings made by the FSLIC.
The legislative history explicitly indicated that FIRREA was drafted so as to satisfy both of the Coit requirements.
Id. (emphasis added). Accord Sugrue-Spencer v. RTC, No. 91-2106, slip op. (D.D.C. Dec. 9, 1991) (Sporkin, J.) (district court lacks subject-matter jurisdiction pursuant to 12 U.S.C. 1821(d)(13)(D) where plaintiffs had not filed an administrative claim with RTC as per 12 U.S.C. 1821(d)); see also Office of Professional Employees, supra, 962 F.2d 63 (same).
The Circle decision itself involved a suit filed against a defendant financial institution only after it entered federal receivership. Id. at 450-51. However, in New Maine Nat. Bank v. Reef, 765 F. Supp. 763 (D. Me. 1991), the district court ruled consistently with Circle, dismissing without prejudice a defendant's counterclaim commenced and pending in court before the onset of federal receivership on grounds that "no jurisdiction exists in the court with respect to a claim for judicial determination of a claim subject to the administrative claims process until the specified "suit on such claim" has been filed in the court." Id. at 765. The New Maine court made clear its "position" that
the statutory language of sections 1821(d)(13)(D)(i) and (ii) divests the Court of substantive jurisdiction over claims of the specified nature pending the working out of the administrative claims process provided for by the statute or until the lapse of the designated time provided therefore.
Id. at 766. This Court concurs with the logic set forth in the aforementioned decisions and, absent any authority cited by the plaintiff to the contrary,
rejects plaintiff's contention that "there is no question that this court has subject matter jurisdiction over the present case." Memo at 3.
For these reasons, it is
ORDERED that defendant Resolution Trust Corporation's motion is GRANTED and this case is DISMISSED without prejudice pursuant to Fed. R. Civ. P. 12(b)(1) and the provisions of 12 U.S.C. 1821(d)(13)(D) pending exhaustion of the administrative remedies set forth in the Financial Institutions Reform, Recovery and Enforcement Act of 1989.
Judge George H. Revercomb