710 F.3d 978
9th Cir.2013Background
- FDIC seeks removal of a state-court case under 12 U.S.C. § 1819(b)(2)(B).
- Allen sued OneUnited Bank in California state court for wrongful termination related to banking practices.
- FDIC had not been sued or substituted as a party when it removed the case.
- Settlement negotiations over a protective order delayed, but the state court did not adopt the negotiated order.
- District court remanded; FDIC appealed; mediation led to remand with special instructions, which the state court declined to follow.
- Court addresses whether the FDIC may remove before becoming a party and limits on its removable-reach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §1819(b)(2)(B) permit removal before FDIC becomes a party? | Allen argues FDIC needs party status to remove. | FDIC contends broad removal authority applies to its receiver/party status. | No; removal requires FDIC to be a party. |
| Does intervention alone trigger the 90-day removal window? | Allen's position unclear; FDIC argues for immediate removal. | Intervention alone does not substitute as party status. | Intervention without party status does not open removal window. |
| Is remand improper because of §1819(b)(2)(A) original jurisdiction? | FDIC claims original jurisdiction via (A) after party status. | Original jurisdiction does not convert removal; Heaton not adopted. | §1819(b)(2)(A) is jurisdiction-grant, not removal-expansion. |
| Did state court’s actions threaten federal interests to permit carve-out? | FDIC cites potential conflict with federal interests. | Record shows no significant federal-interest threat. | Record lacks significant federal-interest threat; carve-out not warranted. |
Key Cases Cited
- Bullion Servs., Inc. v. Valley State Bank, 50 F.3d 705 (9th Cir. 1995) (FDIC can remove when already a party.)
- Diaz v. McAllen State Bank, 975 F.2d 1145 (5th Cir. 1992) (Removal timely after FDIC substituted as party.)
- Buczkowski v. FDIC, 415 F.3d 594 (7th Cir. 2005) (Substitution as party opens removal; distinguishes capacities.)
- Village of Oakwood v. State Bank and Trust Co., 481 F.3d 364 (6th Cir. 2007) (Intervention cannot create jurisdiction where none exists.)
- Heaton v. Monogram Credit Card Bank of Georgia, 297 F.3d 416 (5th Cir. 2002) (Intervention may not confer jurisdiction after removal.)