Nickols v. F.D.I.C.

• Decision Date: 09 June 1998
• Docket Number: No. 3:96CV1895(GLG).,3:96CV1895(GLG).
• Citation: 9 F.Supp.2d 137
• Court: U.S. District Court — District of Connecticut
• Parties: Marylu NICKOLS, Conservatrix for Ernest Nickols, Jr., Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for First Constitution Bank, Defendant.

9 F.Supp.2d 137

Marylu NICKOLS, Conservatrix for Ernest Nickols, Jr., Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for First Constitution Bank, Defendant.

No. 3:96CV1895(GLG).

United States District Court, D. Connecticut.

June 9, 1998.

Jerome Nathan Goldstein, Huntington, CT, for Plaintiff.

Kevin P. Walsh, Cella, McKeon & Williams, North Haven, CT, for Defendant.

MEMORANDUM DECISION

GOETTEL, District Judge.

This slip-and-fall case is brought by plaintiff, Marylu Nickols, as Conservatrix for Ernest Nickols, Jr., against the Federal Deposit Insurance Corporation ("FDIC"), as receiver for First Constitution Bank, alleging negligence in the maintenance of the property where Mr. Nickols fell. Because the claim is against the FDIC, plaintiff was required to exhaust administrative remedies before bringing this action in federal court. See RTC v. Elman, 949 F.2d 624, 627 (2d Cir. 1991); Carlyle Towers Condominium Ass'n, Inc. v. FDIC, 982 F.Supp. 181, 183 (E.D.N.Y. 1997). Accordingly, plaintiff sent a notice of claim to the FDIC. The notice was allegedly transmitted by overnight mail and by facsimile transmission on the last day on which plaintiff could timely file her claim.¹ The FDIC asserts that it never received the facsimile transmission and that it did not receive the overnight mail delivery until after the statute of limitations had run. Therefore, the FDIC denied plaintiff's claim as untimely and has now moved this Court for summary judgment on the ground that plaintiff's claim is barred by Connecticut's two-year statute of limitations.

This matter was referred to Magistrate Judge Thomas P. Smith, who, on March 20, 1998, issued his recommended ruling granting the FDIC's motion for summary judgment. Plaintiff has objected to the ruling, which objection is now before this Court. The sole issue presented is the timeliness of plaintiff's filing with the FDIC. For the reasons set forth below, we hold that plaintiff's claim was not timely filed, and, therefore, this Court lacks jurisdiction over plaintiff's complaint. However, we reach that result for reasons different than those articulated in Judge Smith' Recommended Ruling.

BACKGROUND

On January 22, 1994, Ernest Nickols was injured when he slipped and fell on ice in a parking lot at 35 Huntington Turnpike, in Bridgeport, Connecticut. The property had been owned by First Constitution Bank, which had been placed in receivership, and, thus, was an asset being managed by the FDIC as receiver.

The parties agree that Connecticut's two-year statute of limitations, C.G.S.A. § 52-584, applies to plaintiff's tort claim, thus requiring plaintiff to file her claim within two years of the date of Mr. Nickols' injury. There is no question in this case as to when plaintiff's claim accrued. The only issue is whether plaintiff's claim was timely "filed" with the FDIC.

In her statement of facts, plaintiff states that she "filed a notice of claim via fax transmission and by overnight express mail, (as indicated by the receipt therefore, attached ... as Exhibit A...) with the claim agent, FDIC Corporation of East Hartford, Connecticut on January 22, 1996. Please see the attached Affidavit." The attached affidavit of plaintiff's counsel states that on "January 24, 1996, I sent by facsimile and by First Class Mail, postage prepaid, a Notice of Claim for Damages as required under title 12 U.S.C. Section 21(f) et. seq. [sic] to the F.D.I.C. at 203-291-5476 and at 101 East River Drive in East Hartford, CT 06108." (Emphasis added). Attached to the affidavit are two exhibits, one being a receipt from Eastern Connection showing a pickup date of "__/22/96" (we presume this to be 1/22/96) of a package for "Nickols-Goldstein" for "overnight delivery" to a Denise Lovendale at the FDIC. The date of delivery is not shown. Exhibit "B" is a fax cover sheet for the Superior Court in Milford, Connecticut, and appears to have no bearing on this case. There is no evidence that the notice of claim was sent by first class mail, nor is there a record of its transmission by facsimile.

The FDIC's submissions on this motion are equally inconsistent. In its Statement of Material Facts, the FDIC states that it received notice of the claim by mail on February 24, 1996, and later states January 24, 1996. The FDIC further states: "It is noted that the plaintiff did also attempt to send a facsimile copy of the notice on January 22, 1996." The source of this latter information is undisclosed, but it does indicate to us that the FDIC received some information that plaintiff had attempted to send a fax. In the supporting affidavit of Ann Bonner, claims specialist for the FDIC, Ms. Bonner states that "to the best of my knowledge and belief the original claim in this matter was received by the FDIC on January 23, 1996, as reflected on the face of the cover letter that accompanied said claim [sic January 23, 1995]." (Alteration in original; emphasis added). The cover letter was not attached to her affidavit and there is no indication as to how this claim was received, whether by facsimile transmission, by first-class mail, or by overnight delivery. Ms. Bonner also states that she has no knowledge of the receipt of any facsimile prior to January 23, 1996, but does not indicate whether one was received on January 23, 1996.

Because this matter comes before this Court on a motion for summary judgment, we are required to construe the facts in the light most favorable to the non-moving party. Thus, for purposes of this motion, we will accept plaintiff's statement that the notice was sent to the FDIC by facsimile on January 22, 1996, and that it was sent by an overnight courier service on January 22, 1996, but that it was not received by the FDIC until January 23, 1996, one day after the statute of limitations had run.

On July 15, 1996, the FDIC issued a Notice of Disallowance of Claim. This suit was filed on September 16, 1996.

Given this factual scenario, the two issues that must be addressed are whether a facsimile transmission is an acceptable method of filing a claim with the FDIC, and whether sending a notice of claim for overnight delivery is sufficient to constitute a "filing" with the FDIC, or whether the notice must have been received within the limitations period.

DISCUSSION

The Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA") sets forth the powers of the FDIC as receiver to wind up the affairs of the institution that is in receivership. Section 1821(d)(5)² governs the procedures for filing claim against the FDIC, as receiver of a failed financial institution. See Heno v. FDIC, 20 F.3d 1204, 1206 (1st Cir.1994); H.R. Conf. Rep. No. 101-209 at 399, 100th Cong., 1st Sess.1989 (Aug. 1, 1989). These procedures require a claimant to first file his claim with the FDIC. The FDIC then has 180 days to consider the claim and make a determination of allowance or disallowance. 12 U.S.C. § 1821(d)(5)(A)(i). Thereafter, if the claim is disallowed, the claimant has sixty (60) days to pursue his claim de novo in federal district court, or to consent to an administrative review process administered by the FDIC. 12 U.S.C. § 1821(d)(6)(A). See H.R.Rep. No. 101-54(I) at 418-419, 101st Cong., 1st Sess. (1989).

Participation in the administrative claims process is mandatory, and failure to participate is a jurisdictional bar to judicial review. 12 U.S.C. § 1821(d)(13)(D);³ see RTC v. Elman, 949 F.2d at 627; Marquis v. FDIC, 965 F.2d 1148, 1151 (1st Cir.1992); FDIC v. Shain, Schaffer & Rafanello, 944 F.2d 129, 132 (3d Cir.1991). The jurisdictional bar of section 1821(d)(13)(D) reaches all claims seeking payment from the assets of the institution, all actions for the determination of rights vis-a-vis those assets, as well as all claims relating to any act or omission of the institution or the FDIC as receiver. Marquis v. FDIC, 965 F.2d at 1152 (citing Rosa v. RTC, 938 F.2d 383, 393 (3d Cir.), cert. denied, 502 U.S. 981, 112 S.Ct. 582, 116 L.Ed.2d 608 (1991)). See also RTC v. W.W. Development & Management, Inc., 73 F.3d 1298, 1309 (3d Cir.1996). Since plaintiff's claim involves an alleged tortious act or omission by the FDIC in its capacity as receiver, it is encompassed within the exhaustion requirements of 12 U.S.C. § 1821(d). See FDIC v. diStefano, 839 F.Supp. 110, 116 (D.R.I.1993) (holding that the claims procedures of FIRREA apply to tort suits against the receiver); Decrosta v. Red Carpet Inns International, Inc., 767 F.Supp. 694, 696 (E.D.Pa.1991) (requiring a plaintiff in a slip-and-fall case against the RTC to exhaust administrative remedies). As indicated in the legislative history, FIRREA provides a stream-lined claims procedure designed to enable the FDIC to dispose of the majority of claims against a failed institution expeditiously and fairly. The exhaustion requirement is designed to enable a large number of claims to be resolved without the need of unduly burdening the district courts. See H.R.Rep. No. 101-54(I) at 419, reprinted in 1989 U.S.C.C.A.N. 214-15; Marquis v.. FDIC, 965 F.2d at 1153, 1154; Praxis Properties, Inc. v. Colonial Savings Bank, S.L.A., 947 F.2d 49, 63-64 (3d Cir.1991).

The instant case focuses on the filing provision of the claims process. The statute provides:

(F) Legal effect of filing

(i) Statute of limitation tolled

For purposes of any applicable statute of limitations, the filing of a claim with the receiver shall constitute a commencement of an action.

12 U.S.C. § 1821(d)(5)(F)(i) (emphasis added).

Magistrate Judge Smith held that, in interpreting FIRREA, the court should look to the Federal Rules of Civil Procedure to shed light on FIRREA's filing requirement. In so doing, he first looked to Rule 3, Fed.R.Civ.P., which, like FIRREA, provides that the filing of a complaint with the court constitutes the commencement of an action. Rule 5(e), Fed. R.Civ.P., then defines the term "filing with the court" to require that the...