Federal Deposit Ins. Corp. v. Hudson, Civ. A. No. 86-2236-S.

• Decision Date: 09 September 1986
• Docket Number: Civ. A. No. 86-2236-S.
• Citation: 643 F. Supp. 496
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff, v. Cale HUDSON & Larry Hudson, Defendants.
• Court: U.S. District Court — District of Kansas

643 F. Supp. 496

FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff, v. Cale HUDSON & Larry Hudson, Defendants.

Civ. A. No. 86-2236-S.

United States District Court, D. Kansas.

September 9, 1986.

James R. Goheen, Charles A. Getto, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kan., for Federal Deposit Ins. Corp.

Joe B. Whisler, Kansas City, Mo., John C. Rubow, Chanute, Kan., for Larry Hudson.

Edward W. Dosh, Law Offices of Edward W. Dosh, Parsons, Kan., for Cale Hudson.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants Cale and Larry Hudson's motion to dismiss, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that the court lacks subject matter jurisdiction and the action fails to state a claim upon which relief can be granted. The defendant Cale Hudson has also filed a motion to answer out of time.

Defendants claim that the Federal Deposit Insurance Corporation's FDIC motion should be dismissed as there is no federal subject matter jurisdiction. Defendants claim that the FDIC is relying only on its capacity as receiver, even though there is an allegation stating that it is acting in its corporate capacity. The defendants further argue that this action brought by the FDIC is solely based on state law claims. Alternatively, defendants argued that even if the court does find that it has subject-matter jurisdiction over this action, plaintiff's complaint should be dismissed due to its failure to state a claim upon which relief can be granted. The defendants contend that the FDIC's claims, which were purchased from the receiver-FDIC, are not assignable under state law. The defendants further argue that the contract claims in Count IV of the plaintiff's complaint against the defendant-directors, pursuant to K.S.A. 9-1118 and 9-2001, does not state a cause of action.

In response, the FDIC states that defendants are under a misunderstanding of the statutory and case law pertaining to the status of the FDIC. The FDIC cites Title 12 of the United States Code, § 1819, for the authority to act simultaneously in a dual capacity as federal insurer and as receiver of state and national banks. The FDIC cites numerous cases which have held that "when the FDIC in its corporate capacity, purchases assets of a failed bank from the FDIC in its capacity as receiver, the FDIC is entitled to bring an action in federal court based upon the purchase of the assets." Plaintiff's suggestions in opposition to defendant Larry Hudson's motion to dismiss, page 2, (citing FDIC v. Godshall, 558 F.2d 220, (4th Cir.1977); FDIC v. Ashley, 585 F.2d 157 (6th Cir. 1978); and FDIC v. TWT Exploration Co., 626 F.Supp. 149, 151 (W.D.Okla.1985)).

The court finds that the case law is clear that Congress has authorized the FDIC to act in two distinct capacities. Those two capacities are that of an insurer of deposits and as a receiver for insolvent, closed banks. See Freeling v. Sebring, 296 F.2d 244, 245 (10th Cir.1961); Gross v. Federal Deposit Insurance Corp., 613 F.Supp. 79, 81-82 (D.Kan.1985).

Title 12, United States Code, Section 1819 provides in pertinent part:

Upon the date of enactment of the Banking Act of 1933 enacted June 16, 1933, the Corporation shall become a body corporate and as such, shall have power—

....

Fourth. To sue and be sued, complain and defend in any court of law or equity, State or Federal. All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy; ... except that any such suit to which the Corporation is a party in its capacity as 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.

Upon a review of the FDIC's complaint, the FDIC alleges that it is acting in its corporate capacity. Paragraph 7 of the FDIC's complaint alleges that the FDIC in its corporate capacity purchased from the receiver certain assets of the bank. Among the assets received from the receiver were the assets at issue in this case, namely claims against its directors, officers or employees arising out of any act or acts of such persons with respect to the bank or its property, by virtue of the nonperformance of their duties, and also promissory notes. The court finds that the FDIC, acting in its capacity as a corporation, does establish the jurisdictional requirements for bringing action in this court. The court finds that the corporation has not alleged that it is acting in its capacity as receiver of a state bank, but solely in its capacity as a corporation and insurer. See Federal Deposit Insurance Corp. v. Godshall, 558 F.2d 220, 222 (4th Cir.1977). The court has continually recognized that the FDIC may often act in two capacities simultaneously, as receiver of a bank and seller and as an insurance corporation. See, e.g., Federal Deposit Insurance Corp. v. Abraham, 439 F.Supp. 1150, 1153 (E.D.La.1977). The court therefore finds that 12 U.S.C. § 1819 confers federal subject matter jurisdiction on this case as the FDIC is acting in its corporate capacity, pursuant to the provisions of that Act. The court finds that it is superfluous to address the other grounds upon which the FDIC claims it has jurisdiction.

The court will next address defendant's motion to dismiss the FDIC's complaint on the grounds that said complaint does not state claims upon which relief can be granted. Specifically, defendants claim that as receiver, the FDIC's right to bring a tort action is not assignable under Kansas law to the FDIC as a corporation. The court finds that it can summarily dismiss said argument of the defendants. Both the decision in Federal Deposit Ins. Corp. v. Rectenwall, 97 F.Supp. 273, 274 (N.D.Ind. 1951), and in Federal Savings & Loan Insurance Corp. v. Fielding, 309 F.Supp. 1146, 1151 (D.Nev.1969), makes clear that federal law applies in these actions, and that tort law claims are assignable, although state law would not allow it. See Federal Savings & Loan Corp. v. Fielding, 309 F.Supp. at 1151.

In Rectenwall, the court explained that under 12 U.S.C. § 264(n)(4), the FDIC as a corporation may purchase assets of an open or closed insured bank and assume liabilities by another insured bank. The court explained that this section contemplated the unrestricted transferability of every asset of an insured bank, and that the right to purchase the asset, which is a chosen action, to have any meaning, must be equivalent to the right to bring suit upon it and to reduce it to judgment. The court...