Federal Deposit Insurance v. Loyd

THORNBERRY, Circuit Judge,

concurring in part, dissenting in part:

I concur with most of the thoughtful and well-reasoned analysis of my colleagues in the majority, but I must respectfully dissent from sections III(D)(2) and III(E) of the opinion.

Unlike the position taken by the majority in section III(D)(2), I believe that the district court correctly ruled that the thirty-day limitations period for removal under the general removal statute, 28 U.S.C.A. § 1446 (b) (West Supp.1991), began to run against the FDIC when it was appointed as receiver for the failed bank in this case. I believe that this date also marked the running of the limitations period for the FDIC’s co-plaintiff in this case, NCNB Texas National Bank (“NCNB”), and, therefore, I also dissent from section III(E) of the majority opinion.

The controlling statute, 28 U.S.C.A. § 1446 (b) (West Supp.1991), states, in relevant part, that

[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

This provision provides that when some occurrence or discovery transforms a case from one that was thought to be non-removable into a case that is removable, the limitations period will begin anew at the point in time when “the defendant receives actual notice that the case has become removable, which may be communicated in a formal or informal manner.” 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3732, at 519-20 (1985); see also American Sav. & Loan Ass’n v. Hoss, 716 F.Supp. 979, 981 (S.D.Tex.1989) (noting that one of the purposes of section 1446 is to provide actual or constructive notice to those parties who would not otherwise be aware that the nature of the litigation had changed in such a way as to make a case removable).

Although the pleadings in this lawsuit originally may not have stated a cause of action that was removable, the appointment of the FDIC as a receiver transformed the pleadings into an action that stated a removable claim based on' the simple fact that the FDIC had now become a party to *330 the lawsuit. See 12 U.S.C.A. § 1819 (b)(2)(A) (West 1989) (providing that all suits “to which the [FDIC], in any capacity, is a party shall be deemed to arise under the laws of the United States”) (emphasis added); FDIC v. Otero, 598 F.2d 627, 630-31 (1st Cir.1979) (providing that any defendant including the FDIC may seek removal of a case to which the FDIC is a party). The FDIC became a party to this action upon its appointment as á receiver for the failed commercial bank; formal intervention or joinder of the FDIC was unnecessary. See Federal Deposit Ins. Corp. v. Condit, 861 F.2d 853, 856 (5th Cir.1988); Mississippi Sav. & Loan Ass’n v. Hudspeth, 756 F.2d 1096, 1100 (5th Cir.1985), overruled on other grounds, Coit Independence Joint Venture v. Federal Sav. & Loan Ins. Corp., 489 U.S. 561 , 109 S.Ct. 1361 , 103 L.Ed.2d 602 (1989); Farina v. Mission Investment Trust, 615 F.2d 1068 , 1074-75 & n. 19 (5th Cir.1980); see also Henry v. Independent Am. Sav. Ass’n, 857 F.2d 995, 998 (5th Cir.1988) (noting that under similar circumstances, the FSLIC is a party to a suit when it is present as a receiver). The involvement of the FDIC as a party to the litigation altered earlier encumbrances to removal, and transformed the original pleadings into pleadings which were now removable. No amended pleadings, motions, orders or other papers were necessary to achieve this result.

“The fundamental principle of the general removal statute is that the time limitation on seeking removal begins to run when defendant receives notice of the action.” C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3732, at 513 (1985). Once the FDIC became a party to the litigation by virtue of its appointment as receiver of Republic Bank, it was on notice that the pleadings stated a removable cause of action, and the statute óf limitation should have commenced to run. This result is consistent' with the result reached by several district courts within our own circuit. See FSLIC v. Browning, 732 F.Supp. 690, 691 (N.D.Tex.1989); FDIC v. Norwood, 726 F.Supp. 1073, 1075-76 (S.D.Tex.1989); American Sav. & Loan Ass’n of Brazoria County v. Hoss, 716 F.Supp. 979, 980-81 (S.D.Tex.1989); Woodlands II v. City Sav. & Loan Ass’n, 703 F.Supp. 604, 606-07 (N.D.Tex.1989); Addison Airport v. Eagle Inv. Co., 691 F.Supp. 1022, 1025 (N.D.Tex.1988). 1

Given that the purpose of section 1446 is to provide actual or constructive notice to those parties . who might not otherwise know that a case had become removable, it was not an abuse of discretion for the district court to find that NCNB’s thirty-day limitation period also commenced on the date that the FDIC was appointed as a receiver. The day that the FDIC was appointed as receiver for the failed Republic Bank in this case was also the date on which the FDIC entered into a Purchase and Assumption Agreement with NCNB whereby NCNB assumed the affirmative claims for Republic against the defendants. Since NCNB was dealing with' the FDIC in this matter, it was put on notice that the *331 action was removable, and, therefore, the thirty-day limitations period began to run against them. The district court’s determination in this regard should have been affirmed.

. The majority cites only three cases from our circuit that are consistent with its holding that the statute of limitations does not begin to run until the FDIC officially intervenes in a state action. See Majority Opinion at 325 (citing FDIC v. Brooks, 652 F.Supp. 744 (N.D.Tex.1985); FDIC v. Patton Cotton Co., 652 F.Supp. 742 (N.D.Tex.1984); FDIC v. Crowe, 652 F.Supp. 740 (N.D.Tex.1984)). All three of these opinions were written by the same judge, and all three opinions rely to some extent or another on the First Circuit opinion of FDIC v. Otero, 598 F.2d 627 (1st Cir.1979), which held that the timing of the thirty-day limitations period began at the time that the FDIC officially intervened in the subject action. This reliance on Otero has recently been undercut by another First Circuit opinion, Woburn Five Cents Savings Bank v. Hicks, 930 F.2d 965 at 969 (1st Cir.1991), which has disavowed any suggestion that Otero applied to the FDIC in its role as a receiver:

Whatever the continuing strength of Otero ... we think the more reasonable approach is to treat the FDIC as a full party as a matter of law at the time of appointment since, at that time, the bank ceases to operate independently. Such an approach recognizes that it is at the time of receivership that the case is transformed into "one in its nature removable," Powers v. Chesapeake & Ohio Railway, 169 U.S. 92, 98 [ 18 S.Ct. 264, 266 , 42 L.Ed. 673 ] (1898), and that delaying the effect of the change until formal substitution of parties has taken place would be to elevate form over substance.