Federal Deposit Ins. Corp. v. Brooks, 652 F. Supp. 744 (N.D. Tex. 1985)

Harold H. Pigg, Brock Morton & Pigg, Lubbock, Tex., for plaintiff.

Jack P. Driskill, David R. Langston, McWhorter, Cobb & Johnson, Lubbock, Tex., for defendants.

WOODWARD, Chief Judge.

On January 7, 1984, the court considered the defendant C.W. Brooks' Motion to Remand filed in the above-styled case. After hearing the oral arguments of counsel in this case, considering the motion and accompanying brief, and studying the brief in opposition thereto, the court denies the defendant's motion.

Twelve U.S.C. § 1819 (Fourth) permits the Federal Deposit Insurance Corporation (FDIC) to remove to federal courts any case in which it is involved as the receiver of a national bank "following any procedure for removal now or hereafter in effect." The courts have interpreted this provision as requiring the FDIC to remove a case within the thirty-day time limit set forth in 28 U.S.C. § 1446 (1982). In re Franklin National Bank Securities Litigation, 532 F.2d 842 (2d Cir. 1976).

The issue raised in the defendant C.W. Brooks' motion is when does the § 1446 thirty-day removal period begin. Brooks argues that it started to run in this case in April 1984 when the FDIC was appointed receiver of the Security National Bank. The FDIC argues that the period commenced when it intervened in the state court suit on December 11, 1984, two days before it removed the action to this court.

In FDIC v. Otero, 598 F.2d 627 (1st Cir.1979), the court considered a similar question and determined that the thirty-day period starts running when the FDIC intervenes in the state court action. In that case, the FDIC intervened in a lawsuit pending before a Commonwealth court in Puerto Rico as the assignee of a defunct bank. The FDIC then removed the case to the United States District Court for the District of Puerto Rico. Third-party defendants argued on appeal that the removal *745 was untimely, but the First Circuit disagreed. It stated in a footnote:

We reject as frivolous appellant's claim that the removal petition was untimely under 28 U.S.C. § 1446(b). Although appellees had notice of the assignment of the notes to the FDIC in November 1977, the case was not "removable" within the meaning of the statute until the FDIC actually intervened in February, 1978. The petition for removal was timely filed within 30 days of the FDIC's intervention.

Id. at 633, n. 7.

This court similarly has held that the FDIC has thirty days from the date of its intervention in state court within which to remove to federal court. FDIC v. Patton Cotton Co., 652 F. Supp. 742 (N.D.Texas, 1984) (order denying request for remand); FDIC v. Crowe, 652 F. Supp. 740 (N.D. Texas, 1984) (order denying motion for remand). In those cases, this court construed 28 U.S.C. § 1446(b) and determined that the FDIC's motion to intervene was the "pleading, motion, order or other paper from which it may first be ascertained that the case is one which ... has become removable."

Following the reasoning used in Otero and two of its prior decisions, the court holds that the FDIC acting as receiver of a national bank becomes a party for purposes of removal under 12 U.S.C. § 1819 (Fourth) (1982) on the date it intervenes in the state court action in which the defunct national bank was suing as plaintiff. The FDIC has thirty days from that date within which to remove the case to federal court pursuant to 28 U.S.C. § 1446(b).

Because the FDIC properly and timely removed the instant case to this court, it is

ORDERED that the defendant C.W. Brooks' Motion to Remand is DENIED.