Structural Systems, Inc. v. Sulfaro, Civ. A. No. 88-785-C.

Decision Date15 June 1988
Docket NumberCiv. A. No. 88-785-C.
Citation687 F. Supp. 22
PartiesSTRUCTURAL SYSTEMS, INC., Plaintiff, v. Anthony J. SULFARO, et al, Defendant.
CourtU.S. District Court — District of Massachusetts

Marvin H. Margolies, Margolies & Margolies, Boston, Mass., for plaintiff.

Peter M. Laurieat, P.C., Patricia A. McEvoy, Peabody & Brown, Boston, Mass., for Yankee Bank for Finance & Sav.

Gary R. Green Berg, Lawrence R. Kulig, Goldstein & Manello, Boston, Mass., for Anthony J. Sulfaro, Trustee, A.J. Sulfaro Development Corp.

MEMORANDUM

CAFFREY, Senior District Judge.

Structural Systems, Inc. filed this action in Middlesex Superior Court against the defendants, Anthony J. Sulfaro and Sulfaro Development Corporation. Yankee Bank for Finance and Savings ("Yankee") was also named a defendant in the state court action. The plaintiff seeks to reach and apply funds allegedly owed by Yankee to the other named defendants. In addition, Yankee is the mortgagee of certain real property that is relevant to the action.

After the complaint was filed, Yankee became insolvent and the Federal Deposit Insurance Corporation ("FDIC") was appointed receiver of its assets. As Yankee's receiver, the FDIC seeks to substitute itself as a defendant in this action and has removed the case to this Court. The plaintiff now seeks a remand to the state court, claiming that this Court lacks removal jurisdiction.

The plaintiff's contention is without merit. Jurisdiction over this matter is expressly conferred by 12 U.S.C. § 1819(4). Under this statute, all civil suits in which the FDIC is a party are deemed to arise under federal law even if the cause of action is created by state law. Section 1819 specifically empowers the FDIC to remove such actions to the federal district courts. The only exception to the jurisdiction conferred by this statute applies when the FDIC acts as a receiver for a state bank and the lawsuit involves questions of state law only. Federal Deposit Insurance Corp. v. de Jesus Velez, 678 F.2d 371, 374 (1st Cir. 1982). The statutory exception has no application here where the FDIC is acting as a receiver for a national bank.

The plaintiff also challenges removal of this action on the grounds that the FDIC was not a named defendant in the state court action. However, the removal power granted the FDIC by 12 U.S.C. § 1819(4) is not contingent on the plaintiff naming the corporation as a defendant in the first instance. See Federal Deposit Insurance Corporation v. Otero, 598 F.2d 627, 629 (1st Cir.1979) (federal jurisdiction present where the FDIC was a substituted party rather than an original party in the state court action). Nor is jurisdiction under § 1819(4) defeated by the fact that the FDIC is not yet formally a party to this action. While formal intervention or substitution of the FDIC prior to the petition for removal is desirable, it is not necessary to support jurisdiction under 12 U.S.C. § 1819(4). Farina v. Mission Investment Trust, 615 F.2d 1068, 1075 (5th Cir.1980).1

The plaintiff's claim that jurisdiction is lacking because not all defendants joined in the petition for removal is also meritless. Unlike a removal petition under 28 U.S.C. § 1446, it is not necessary that all defendants join in a petition for removal brought pursuant to 12 U.S.C. § 1819(4). Franklin National Bank Securities Litigation v. Andersen, 532 F.2d 842, 846 (2d Cir.1976). Section 1819(4) was designed to facilitate removal by the FDIC of actions in which it is a party. Otero, 598 F.2d at 630. The broad power of removal granted by the statute would be unduly restricted by a requirement that all defendants join in a petition for removal. Moreover, such a requirement would be illogical in view of the FDIC's power to remove a case to federal court even when it is a plaintiff, rather than a...

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10 cases
  • Mountain Ridge State Bank v. Investor Funding
    • United States
    • U.S. District Court — District of New Jersey
    • 21 d4 Março d4 1991
    ...as the FDIC is appointed receiver. See, e.g., Loyd, 744 F.Supp. at 128-29; Norwood, 726 F.Supp. at 1076; see Structural Sys., Inc. v. Sulfaro, 687 F.Supp. 22, 23 (D.Mass.1988) (decided under 12 U.S.C. § 1819(Fourth)). This approach, however, may not comport with Section 1446. Section 1819(b......
  • Adams v. Walker, 90-1145-C.
    • United States
    • U.S. District Court — District of Kansas
    • 20 d4 Junho d4 1991
    ...to those instances where the FDIC has been properly named a party in the state court action. See, e.g., Structural Systems, Inc. v. Sulfaro, 687 F.Supp. 22, 23 (D.Mass.1988) (Removal jurisdiction not defeated by the fact the FDIC has not yet formally been joined as a party to the The reason......
  • Resolution Trust Corp. v. Bayside Developers
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 20 d5 Janeiro d5 1995
    ...(10th Cir.1990) (FSLIC); Henry v. Independent Am. Sav. Ass'n, 857 F.2d 995, 998 (5th Cir.1988) (FSLIC); Structural Sys., Inc. v. Sulfaro, 687 F.Supp. 22, 23 (D.Mass.1988) (FDIC); Towns Real Estate & Appraisal Serv., Inc. v. RTC, 753 F.Supp. 914 (N.D.Ala.1991) (RTC); cf. McCarthy W. Construc......
  • Heafitz v. Interfirst Bank of Dallas, 88 Civ. 7244 (PKL).
    • United States
    • U.S. District Court — Southern District of New York
    • 11 d2 Abril d2 1989
    ...627, 633 n. 7 (1st Cir.1979); Interior Glass Services v. FDIC, 691 F.Supp. 1255, 1256-57 (D.Alaska 1988); Structural Systems, Inc. v. Sulfaro, 687 F.Supp. 22, 23 (D.Mass.1985). It is only where the FDIC has been vigorously involved in the action for a prolonged period of time before formall......
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