Lazuka v. Federal Deposit Ins. Corp.

• Decision Date: 29 May 1991
• Docket Number: No. 90-5693,90-5693
• Citation: 931 F.2d 1530
• Parties: Betty Lee LAZUKA, Individually and as Executrix of the Estate of Sylvester Lazuka, Sr., Deceased, Plaintiff-Appellee, v. FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for First American Bank and Trust, A Florida Banking Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1530

931 F.2d 1530

59 USLW 2745

Betty Lee LAZUKA, Individually and as Executrix of the

Estate of Sylvester Lazuka, Sr., Deceased,

Plaintiff-Appellee, v. FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for First

American Bank and Trust, A Florida Banking

Corporation, Defendant-Appellant.

No. 90-5693.

United States Court of Appeals, Eleventh Circuit.

May 29, 1991.

Robert Pass, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., Gregory E. Gore, FDIC, Washington, D.C., for defendant-appellant.

Steven Reininger, Sharon L. Blake, Rasco, Reininger & Dannheiser, Miami, Fla., for plaintiff-appellee.

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

Before FAY and BIRCH, Circuit Judges, and HOFFMAN ^*, Senior District Judge.

FAY, Circuit Judge:

This appeal arises out of the FDIC's removal of a case from state court to federal district court. The district court remanded the case to state court on the basis of its finding that the "well-pleaded complaint" rule applied to prohibit the FDIC from removing the case where a federal cause of action did not appear on the face of the complaint. We disagree. Instead, we find that the recent Financial Institutions Reform, Recovery, and Enforcement Act of 1989, ("FIRREA") P.L. No. 101-73, 103 Stat. 183 (1989), amending 12 U.S.C. Sec. 1819(b)(2), creates a rebuttable presumption of federal question jurisdiction to support removal in cases brought against the FDIC, and overcomes the "well-pleaded complaint" rule by permitting the FDIC to assert a federal question in its answer. Section 1819 permits a plaintiff to rebut this presumption by making a showing upon a motion for remand that the statutory exception to removal, located at 12 U.S.C. Sec. 1819(b)(2)(D), applies. Because the district court remanded the case prior to the FDIC's filing of an answer in which it could have raised a federal question, we VACATE the district court's order of remand. Additionally, we find that the general removal time limit of thirty days remains applicable to the FDIC. We also find that the date on which the limit begins to run, in cases in which the FDIC is appointed receiver to a defendant depository institution in an ongoing suit, is the date of the FDIC's receipt of notice of its appointment as receiver of the institution. In the case before us, the FDIC did not remove until more than thirty days following its appointment as receiver. Nevertheless, its removal was timely because it had been granted a ninety-day stay of proceedings, and removed within ninety days of its appointment as receiver.

Background

Plaintiff, Betty Lee Lazuka, individually and as executrix of the estate of her deceased husband, sued First American Bank & Trust Company ("First American"), and a number of other defendants, in a Florida court in September of 1989. She sought damages arising out of agreements between First American and the other defendants involving real property, stock and transactions financed by First American, which were evidenced by loan commitments and promissory notes. The counts against First American were for: negligence in delivery of certain funds to Ms. Lazuka or her husband's estate; fraud on Ms. Lazuka and the estate concerning certain stock sales; breach of contract to loan monies, to which plaintiff was a third party beneficiary; vicarious liability in civil theft and conversion for the acts of another defendant; violations of the anti-fraud provisions of the Florida securities laws; and breach of the duty of reasonable care as a lender when it financed the acquisition of one of the other defendant's corporate stock. The other defendants were accused of fraud, breach of contract, civil theft, conversion, and securities violations. First American filed a motion to dismiss for failure to state a cause of action on November 13, 1989.

On December 15, Florida's Comptroller closed First American because it was insolvent and appointed the FDIC as a receiver. Two weeks later, the FDIC as receiver filed its motion to substitute itself for First American in the state court action. On the same date, it also requested a statutory stay of the proceedings. The state court granted both motions on January 18, 1990. On February 20, 1990, the FDIC removed the case to the United States District Court for the Southern District of Florida.

In its notice of removal, the FDIC asserted that removal was timely and proper under the FDIC's removal provisions located at 12 U.S.C. Sec. 1819(b)(2), and raised several possible federal defenses. The FDIC asserted that Lazuka's claims might be barred by two federal statutes, 12 U.S.C. Secs. 1823(e) and 1821(d)(9), which mandate that claims against the FDIC meet the criteria of those statutes in order to be provable. Additionally, the FDIC urged that Lazuka's claims might be barred by the D'Oench doctrine. See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942).

Plaintiff timely filed a motion to remand the case back to state court. She asserted two grounds for remand. First, she claimed that the removal was untimely, and therefore procedurally defective. Second, she claimed that the case involved only issues of state laws and fell squarely within the exceptions to removal located at 12 U.S.C. Sec. 1819(b)(2)(D).

The district court remanded the case. In applying the exceptions to removal provision of section 1819, the court determined that the "well-pleaded complaint" rule governed its determination of whether disposition of a case required interpretation of only state law. It opined that whether the case was removable was dependent upon a finding that the plaintiff's complaint raised a federal question. Because no federal questions had been raised in Lazuka's complaint, the court refused to "prognosticate whether a federal defense would be raised to counter Plaintiff's state-based claims," because the well-pleaded complaint rule relieved it from making such a prediction. (R:21:9) The court therefore remanded the case to state court on the basis that plaintiff had established the case fell within the exception to removal in section 1819(b)(2)(D). ¹

Although orders of remand are not generally appealable, pursuant to a special exception in 12 U.S.C. Sec. 1819(b)(2)(C), the FDIC appealed the district court's order of remand to this court.

Discussion

This case raises a number of issues of first impression in this circuit, or any circuit, for that matter. The central focus of our discussion involves the interpretation of Title 12, U.S.C. Sec. 1819. The pivotal issue is whether that statute's removal provisions serve to overcome the judicially-established "well-pleaded complaint" rule. If so, we then must determine how courts should apply the statute in cases where the "well-pleaded complaint" rule would have precluded removal. We also must determine whether the general removal procedure provisions, specifically those codified at 28 U.S.C. Sec. 1446, have any effect on section 1819.

More importantly, though, we must apply our findings on these matters to the case before us. We must first determine whether the district court had jurisdiction. If so, we must decide whether the court properly remanded the case based upon its interpretation of section 1819. However, even if the district court's grounds for remand were improper, if the court properly could have remanded on other grounds asserted by plaintiff in her motion for remand, we must affirm.

I. The "Well-Pleaded Complaint" Rule

Generally, a party may remove a civil action from state court to federal district court if the action is one over which the federal district courts have original jurisdiction. 28 U.S.C. Sec. 1441(a) (1988). The "well-pleaded complaint" rule, a judicial creation, mandates that the basis for federal jurisdiction must appear on the face of the plaintiff's complaint, Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S.Ct. 2841, 2846-47, 77 L.Ed.2d 420 (1983); the averment of a federal question as a defense is insufficient. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908); see Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808, 106 S.Ct. 3229, 3232, 92 L.Ed.2d 650 (1986). Therefore, in general terms, removal is improper if based solely upon a plaintiff's allegation of an anticipated defense or if based upon a defendant's responsive pleading. See Merrell Dow at 808, 809 & n. 6, 106 S.Ct. at 3232, 3233 n. 6.

In certain circumstances, though, Congress may set out a jurisdictional statute which serves to overcome the general rule requiring the appearance of a question of federal law in one of the well-pleaded state claims. See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 968, 103 L.Ed.2d 99 (1989) (citations omitted); see also Franchise Tax Board, 463 U.S. at 13, 103 S.Ct. at 2848 (setting out the general standard of the "well-pleaded complaint" rule that federal question jurisdiction is appropriate when it "appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims"). In Mesa v. California, the Supreme Court determined that Title 28, section 1442(a), was enacted to overcome the "well-pleaded complaint" rule, so that federal officers who have been sued in state court could remove cases to federal court by asserting a defense that raises a federal question. Mesa, 489 U.S. at 136-37, 109 S.Ct. at 968-69. The Court reasoned that the statute, a removal provision similar to the one before this court, granted district court jurisdiction over cases in which a federal officer is a defendant. Id. at 136, 109 S.Ct. at 968. Noting that such statutes could not independently support Article III "arising under" jurisdiction, the Court recognized that "the raising of a federal question in the officer's removal petition ... constitute[s] the federal law under which...