Diaz v. McAllen State Bank

Decision Date23 October 1992
Docket NumberNo. 91-6295,91-6295
Citation975 F.2d 1145
PartiesIago Xes Rodriguez DIAZ, et al., Plaintiffs-Appellees, v. McALLEN STATE BANK, et al., Defendants, Federal Deposit Insurance Corporation, As Receiver of McAllen State Bank, Defendant-Appellant. Summary Calendar.
CourtU.S. Court of Appeals — Fifth Circuit

Scott N. Morse, Brown Maroney & Oaks Hartline, Austin, Tex., Lawrence H. Richmond, Manuel A. Palau, Jeannette Roach, Colleen Bombardier, F.D.I.C., Washington, D.C., for defendant-appellant.

David F. Beale, P.C., Robert B. Hinsley, Houston, Tex., for Diaz, et al.

John Robert King, McAllen, Tex., for Valley Mort. Co., Inc.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.


The FDIC appeals from the order of the district court remanding the case to Texas state court. The FDIC argues that remand was improper because there was no defect in removal procedure, objection to removal occurred after the 30-day time period expired, and the district court did not lack subject matter jurisdiction. We vacate and remand.


In 1984, Iago Xes Rodriguez Diaz and Maria Del Carmen Prieto De Rodriguez sued McAllen State Bank and Valley Mortgage Company, Inc. in Texas state court. The suit raises claims grounded primarily in state real property and state unfair trade practice law. The complaint alleges that Diaz purchased real estate in Hidalgo County, that Valley financed the purchase, and that MSB agreed to make the payments to Valley out of funds Diaz had deposited with MSB. Diaz asserts that MSB broke various promises to make the mortgage payments to Valley and that Valley broke promises to alert Diaz before instituting foreclosure proceedings.

In April 1988, while suit was pending, MSB became insolvent, and the FDIC was appointed its receiver. The FDIC intervened on October 4, 1990 and on the same day removed the case to federal court pursuant to 12 U.S.C. § 1819(b)(2)(B). Five months later, on March 1, 1991, Diaz moved to remand the case to state court. Diaz argued that the FDIC waited too long to remove the case and that the district court lacked jurisdiction based on an exception to the statute entitling the FDIC to removal.

On April 3, 1990, the district court orally announced its decision to grant the motion to remand on the grounds that the FDIC had waited too long after its appointment as receiver to remove the case. The FDIC sought a rehearing, which the district court denied. In the order denying the FDIC's motion for rehearing, the district court indicated that in addition to granting the plaintiffs' motion to remand, it was also remanding sua sponte. The FDIC then filed this appeal.


Diaz makes two arguments concerning this court's jurisdiction that we must address at the outset. First, Diaz argues that this appeal should be dismissed, because the FDIC filed its notice of appeal more than 30 days after entry of the order appealed from. While Diaz correctly applies the general rule for filing a notice of appeal, F.R.A.P. 4(a)(1) provides an exception: "if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry." (emphasis added). The FDIC qualifies as an agency of the United States by virtue of 12 U.S.C. § 1819(b)(1), 1 and, contrary to Diaz's position, that provision makes it clear that agency status does not turn on whether the FDIC is the plaintiff, defendant, or intervenor. The provision refers to the FDIC "in any capacity." The district judge entered his order denying the FDIC's motion for rehearing of the court's order of remand on October 7, 1991, and the FDIC filed its notice of appeal on November 21, 1991. This appeal is timely.

Diaz next argues that this court lacks jurisdiction to hear the FDIC's appeal, because 28 U.S.C. § 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Again, the FDIC falls under an exception to the general rule. 12 U.S.C. § 1819(b)(2)(C) states that "[t]he [FDIC] may appeal any order of remand entered by any United States district court." See also FDIC v. Loyd, 955 F.2d 316, 319 (5th Cir.1992).


The district court's decision to remand turned on questions of law, and our review is de novo. Id. (citing Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982)). The FDIC argues that the district court's decision to remand was incorrect because (1) there was no defect in removal procedure, (2) assuming a procedural defect, the district court could not remand more than thirty days after removal, and (3) the district court did not lack subject matter jurisdiction. We agree with the FDIC on all three points.


There was no defect in removal procedure. Section 1819(b)(2)(B) now provides that the FDIC may "remove any action, suit, or proceeding from a State court to the appropriate United States district court before the end of the 90-day period beginning on the date the action, suit, or proceeding is filed against the [FDIC] or the [FDIC] is substituted as a party." (emphasis added). This provision also makes it clear that the time period begins to run from the date the FDIC "is substituted as a party" (i.e. intervenes). 2 In this case, the FDIC removed the case on the same day it intervened, therefore the removal was within the 90-day period. 3


Even if the FDIC's removal had been untimely, the district court still would have been precluded from remanding the case. 28 U.S.C. § 1447(c) provides that "[a] motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal." Diaz waited almost five months before moving to remand. Moreover, in Loyd, we held that section 1447(c) also precluded a judge from remanding sua sponte for procedural defects outside the 30-day period. 955 F.2d at 322. Therefore, the fact that the district judge later decided to remand on his own motion does not change our conclusion.


Although the district court based its remand order on a defect in removal procedure, and not on a lack of subject matter jurisdiction, Diaz asserts that the district court did not have jurisdiction as an alternative ground for remand. Congress provided a broad grant of federal jurisdiction where the FDIC is involved, with one exception. 4 The "state law exception" applies to any action:

(i) to which the Corporation, in the Corporation's capacity as receiver of a State insured depository institution by the exclusive appointment by State authorities, is a party other than as a plaintiff;

(ii) which involves only the preclosing rights against the State insured depository institution, or obligations owing to, depositors, creditors, or stockholders by the State insured depository institution; and

(iii) in which only the interpretation of the law of such State is necessary.

12 U.S.C. § 1819(b)(2)(D). Diaz argues that all three prongs are met, leaving the district court without jurisdiction.

The FDIC concedes that the first prong is satisfied but not the second and third. We agree that this case does not satisfy the third prong, and therefore that the state law exception does not apply. We do not decide the applicability of the second prong. 5

The application of the third prong of the state law exception to this case requires some discussion. We must decide whether this action is one "in which only the interpretation of the law of such State is necessary." While the interpretation of this phrase is an issue of first impression in this circuit, we find considerable guidance from three of our sister circuits. See Reding v. FDIC, 942 F.2d 1254 (8th Cir.1991); Capizzi v. FDIC, 937 F.2d 8 (1st Cir.1991); Empire State Bank v. Citizens State Bank, 932 F.2d 1250 (8th Cir.1991); Lazuka v. FDIC, 931 F.2d 1530, 1533 (11th Cir.1991).

The FDIC argues that the "availability" of federal defenses under the D'Oench, Duhme doctrine and 12 U.S.C. § 1823(e) prevents this case from being one in which only the interpretation of state law is necessary. Diaz argues that this court should interpret § 1819(b)(2)(D)(iii) like 28 U.S.C. § 1331, which governs "arising under" jurisdiction; that is, apply the well-pleaded complaint rule. 6 We decline to apply the well-pleaded complaint rule and instead adopt the rule that all circuits who have considered the issue have embraced: the federal issues must be colorable, not frivolous.

We are persuaded to adopt this rule by the reasons enumerated in Capizzi. 937 F.2d at 10-11. First, the language of § 1819(b)(2)(D)(iii) is broader than the language of § 1331. The operative phrase in § 1331 is "arising under." Where a plaintiff asserts a state law claim, that case can be said to arise under state law regardless of whether the defendant raises a federal defense. On the other hand, the state law exception applies where "only the interpretation of the law of such State is necessary." Under this provision, if the defendant raises a federal defense, then a court may be required to interpret more than state law.

Second, statutory history supports rejection of the well-pleaded complaint rule. Before 1989, the state law exception read differently:

any such suit to which the [FDIC] ... is a party in its capacity as a receiver of a State bank and which involves only the rights or obligations of depositors, creditors, stockholders, and such State bank under State law shall not be deemed to arise under the laws of the United States.

12 U.S.C. § 1819 (1988) (emphasis added) (current version at 12 U.S.C. § 1819(b)(2)(D) (1989)). Courts that interpreted similar statutes relied on the word "under" to hold that the well-pleaded complaint rule applied. See FSLIC v. Capozzi, 855 F.2d 1319, 1324 (8th Cir.1988) (interpreting 12 U.S.C. §...

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