Bullion Services, Inc. v. Valley State Bank Federal Deposit Insurance Corporation, as Receiver for Valley State Bank

Opinion by Judge TROTT; Dissent by Judge T.G. NELSON.

OVERVIEW

The Federal Deposit Insurance Corporation in its corporate capacity (“FDIC Corporate”) appeals the district court order remanding to state court Bullion Services, Inc.’s (“BSI”) action filed originally against FDIC only as receiver for Valley State Bank (“FDIC Receiver”). After BSI obtained a jury verdict in state court against FDIC Receiver, BSI was granted post verdict permission to amend its complaint to include FDIC Corporate. FDIC Corporate then at *706 tempted to remove the case to federal district court pursuant to 12 U.S.C. § 1819 (b)(2)(B). The district court remanded the action, however, concluding that FDIC Corporate had not been made a party to the litigation and, alternatively, that FDIC Receiver had waived the FDIC’s right to removal. We have jurisdiction under 12 U.S.C. § 1819 (b)(2)(C). We reverse, vacate the order and remand.

BACKGROUND

On September 28, 1987, the FDIC was appointed receiver of Valley State Bank (“Bank”) after the Bank was ordered closed. Prior to the closure, the Bank and BSI had been involved in thousands of precious metals transactions. In September 1990, BSI filed a complaint in…

dissenting:

In 1989, Congress added subsection (b) to 12 U.S.C. § 1819 . The first sub-part of the new subsection provided: “The Corporation, in any capacity, shall be an agency of the United States, for purposes of section 1345 of title 28.... ” (Section 1345 gives the district courts original jurisdiction of suits by the United States and its officers and agencies.)

Congress went on to provide, in sub-part (2)(B) of the same new subsection (b), that the “Corporation may, without bond or security, remove any action, suit or proceeding from a State court....” I have difficulty attributing to it an intention to sub silentio authorize removal by the FDIC in both the capacities in which it operates. Obviously, Congress knew the FDIC would wear more than one hat, but it did not distinguish between them in authorizing “the Corporation” to remove cases from state courts.

The rule in the Fifth Circuit is that the FDIC gets only one chance to remove a case, under Dalton v. FDIC, 987 F.2d 1216, 1222 (1993):

I am unable to agree that the words “the Corporation” in section 1819(b)(2)(B) really means “the Corporation, in its capacity as receiver as well as its corporate capacity.” Nor do…

50 F.3d 705 63 USLW 2595 BULLION SERVICES, INC., Plaintiff-Appellee, v. VALLEY STATE BANK; Federal Deposit Insurance Corporation, as Receiver for Valley State Bank, Defendants-Appellants. No. 93-55912. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 6, 1995. Decided March 20, 1995. S. Alyssa Roberts, F.D.I.C., Washington, DC, for defendants-appellants. Timothy Bowles and Robert A. Wiener, Bowles & Moxon, Hollywood, CA, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: TROTT, FERNANDEZ, and T.G. NELSON, Circuit Judges. Opinion by Judge TROTT; Dissent by Judge T.G. NELSON. TROTT, Circuit Judge: OVERVIEW 1 The Federal Deposit Insurance Corporation in its corporate capacity ("FDIC Corporate") appeals the district court order remanding to state court Bullion Services, Inc.'s ("BSI") action filed originally against FDIC only as receiver for Valley State Bank ("FDIC Receiver"). After BSI obtained a jury verdict in state court against FDIC Receiver, BSI was granted post verdict permission to amend its complaint to include FDIC Corporate. FDIC Corporate then attempted to remove the case to…