It is apparent from various orders of the Superior Court that
Wiley represented Mountain Ridge in this case in state court
prior to the appointment of the FDIC. See FDIC Brief at
Exhibits C, D, E & F. For example, in a letter-opinion, dated 4
October 1990, Judge Thompson declined to grant Mountain Ridge's
motion for summary judgment. FDIC Brief at Exhibit G. The
letter-opinion was addressed to Wiley. Id.
It does not appear Wiley had been formally retained by the
FDIC to handle any Mountain Ridge litigation at the time Wiley
sent a copy of the Order granting the stay to the Moving
Defendants. By a letter sent to Wiley, dated 13 November 1990,
the FDIC stated it was attempting to ascertain whether Wiley
was qualified to represent the FDIC in the Mountain Ridge cases
pending in the Superior Court. FDIC Brief at Exhibit K.
Although that letter did not specifically refer to this case,
the letter did state that Wiley should "continue to handle" the
unspecified Mountain Ridge cases discussed in a meeting between
Wiley and the FDIC on 7 November. Id.
On 24 December 1990, the FDIC directed Wiley to commence
proceedings to remove this case from state to federal court.
FDIC Brief at Exhibit M. The FDIC desired removal because it
anticipated the defendants represented by Kudman would assert a
counterclaim. Id. It is assumed that sometime in December
1990, Wiley was formally retained to continue as counsel for
the FDIC on this matter. See Geppert Affidavit at ¶ 10.
On 3 January 1991, the FDIC filed its Notice of Removal with
this court. On 15 January 1991, the parties appeared for a
status conference at which time the parties discussed whether
the removal from state to federal court was appropriate.*fn4
The Moving Defendants oppose removal of this case to federal
court and seek remand to the Superior Court. The Moving
Defendants contend removal is improper for several reasons.
First, the Moving Defendants contend removal is precluded
because this is a "state action" involving purely state law.
Defendants' Brief at 6. Second, the Moving Defendants contend
the notice of removal was untimely. Id. at 7. Third, they
contend the stay was improperly obtained. Id. at 13. Last,
the Moving Defendants contend this court should decline or
defer exercise of jurisdiction because the Superior Court has
retained jurisdiction to determine whether appointment of the
FDIC as receiver was appropriate. Id. at 15. The FDIC
disputes all of these contentions.
A. Removal Under 12 U.S.C. § 1819
1. Standard of Review
The FDIC may seek the removal from state to federal court of a
case in which the FDIC is a party.*fn5
12 U.S.C. § 1819(b)(2)(B) (as amended by the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, Pub.L. No. 101-73, § 209,
103 Stat. 183 (1989) ("FIRREA"), codified, as amended, at
12 U.S.C. § 1819(b)(2)(B)). Any case in which the FDIC is a party
has been deemed by Congress to arise, except in certain
circumstances, under the laws of the United States.*fn6
Id. at § 1819(b)(2)(A). An action does not arise under the
laws of the United States when it is an action:
(i) to which the [FDIC], in the [FDIC]'s capacity as
receiver of a State insured depository institution by the
exclusive appointment by State authorities, is a party other
than as a plaintiff;
(ii) which involves only the preclosing rights against the
State insured depository institution, or obligations owing
to, depositors, creditors, or stockholders by the State
insured depository institution; and
(iii) in which only the interpretation of the law of such
State is necessary.
Id. at § 1819(b)(2)(D). Section 1819(b)(2)(D) is not to be
construed, however, to limit a federal court's jurisdiction
when the State insured depository institution could have
invoked the jurisdiction of federal courts in the action.
12 U.S.C. § 1819(b)(2)(E).
2. State Action Under 12 U.S.C. § 1819
The Moving Defendants contend that this action is excluded from
removal because the counterclaims they have asserted turn this
action into an action arising under state, not federal, law.
Defendants' Brief at 7. This contention, however, has no merit.
There are few cases interpreting Section 1819(b)(2)(D). None of
the cases directly address the relevant issue here or even the
issue of whether each of the subsections must be met for
removal to be barred. From the plain language of Section
1819(b)(2)(D), however, it appears each subsection must be met
because subsection (ii) ends with an "and." See Bruce v. First
Fed. Sav. & Loan Ass'n, 837 F.2d 712, 715 (5th Cir. 1988)
("The word `and' is therefore to be accepted for its
conjunctive connotation rather than as a word interchangeable
with `or' except where strict grammatical construction will
frustrate clear legislative intent."). Consequently, the Moving
Defendants' assertion that this action is not removable on the
basis of Section 1819(b)(2)(D) will fail if they cannot show
any of the three subsections are met.
The Moving Defendants argue this action involves only state law
and the preclosing rights of the Moving Defendants against
Mountain Ridge on the Notes. Defendants' Brief at 6. Assuming
that this action is indeed one involving only state law, the
relevant issue then is whether the FDIC is a party other than
plaintiff. 12 U.S.C. § 1819(b)(2)(D)(i).
The FDIC, as receiver, has succeeded to all the rights and
obligations of Mountain Ridge. Bacsik Certification at ¶ 9.
Thus, the FDIC will litigate this action on behalf of Mountain
Ridge, the plaintiff. Consequently, the FDIC is a party in this
action in its capacity as the plaintiff.
In addition, the mere assertion of counterclaims by the Moving
Defendants does not vitiate the FDIC's status as plaintiff and
turn this action into a state action. In FDIC v. Kasal,
913 F.2d 487 (8th Cir. 1990), cert. denied, __ U.S. ___, 111
S.Ct. 1072, 112 L.Ed.2d 1178 (1991), it was held that federal
courts have jurisdiction to hear counterclaims asserted against
the FDIC based on state law. Kasal, 913 F.2d at 493. Although
Kasal addressed the issue of when state law governs a case,
it suggests counterclaims do not hinder the FDIC's access to
federal courts. Consequently, the Moving Defendants' contention
that this is a nonremovable state action is without merit.
3. Timeliness of Removal Under 12 U.S.C. § 1819
Section 1819 does not, on its face, limit the time in which the
FDIC may remove an action. The FDIC contends a reasonable
period should be read into Section 1819, rather than the thirty
day period set forth in the general federal removal statute,
28 U.S.C. § 1446(b).*fn7 FDIC Brief at 4. The FDIC suggests
that ninety days is a reasonable time because Congress has
allowed the Resolution Trust Corporation ("RTC") ninety days in
which to seek removal in
similar actions.*fn8 Id. (citing
12 U.S.C. § 1441a(l)(3)). In the alternative, the FDIC suggests that a
reasonable period would be no less than the thirty days allowed
under the general federal removal statute. Id. (citing
28 U.S.C. § 1446(b)). Under either suggestion, the FDIC contends
the removal period should begin running only upon the
expiration of the ninety day stay of proceedings to which the
FDIC is entitled under 12 U.S.C. § 1821(d)(12)(B). FDIC Brief
The Moving Defendants argue the proper time period for removal
is the thirty day limit under 28 U.S.C. § 1446(b) and the
period commences running either when the FDIC is appointed
receiver or when the FDIC acquires knowledge of the existence
of a removable action. Defendants' Brief at 9-13. The Moving
Defendants also contend that a stay of proceedings does not
toll the running of the limitations period. Id. at 10-13.
a. Removal Under 28 U.S.C. § 1446
Under the general federal removal statutes, an action brought
in state court can be removed by defendants to the federal
district court encompassing the state court if that federal
district court would have had original jurisdiction.
28 U.S.C. § 1441(a).*fn9 A defendant seeking to remove a case must
file "a notice of removal . . . containing a short and plain
statement of the grounds for removal, together with a copy of
all process, pleadings, and orders served. . . ."
28 U.S.C. § 1446(a).*fn10
Section 1446 provides a thirty day limitations period for
removal. 28 U.S.C. § 1446(b). The notice of removal must be
filed within thirty days after receipt by service of process or
otherwise of the initial pleading setting forth the basis for
removal.*fn11 Id. If the initial pleading does not reveal
a basis for removal, then the notice of removal may be filed
within thirty days of receipt by any means of an amended
pleading, motion, order or other paper which indicates the case
is removable. Id.
The thirty day limitation is mandatory and cannot be extended
by the court. Balestrieri v. Bell Asbestos Mines, Ltd.,
544 F. Supp. 528, 529 (E.D.Pa. 1982); Typh, Inc. v. Typhoon Fence
of Penn., Inc., 461 F. Supp. 994, 996 (E.D.Pa. 1978); see also
Northern Ill. Gas Co. v. Airco
Indus. Gases Div. of Airco Inc., 676 F.2d 270, 273 (7th Cir.
1982); Courtney v. Benedetto, 627 F. Supp. 523 (M.D.La. 1986).
Moreover, the thirty day period does not commence running from
when the party seeking removal has actual knowledge of the
propriety of removal; all that is required is the receipt of a
paper indicating removal is proper. Rowe v. Marder,
750 F. Supp. 718, 721 (W.D.Pa. 1990). Consequently, the party
seeking removal cannot attempt to excuse an untimely filing of
the notice of removal by claiming that he did not read the
paper or that the paper was somehow incomplete. Id.
A case may be remanded to state court on the ground of a defect
in the removal procedure. 28 U.S.C. § 1447(c).*fn12 Failure
to file a notice of removal within the thirty day limitations
period is cause for remand. Capone v. Harris Corp.,
694 F. Supp. 111, 112 (E.D.Pa. 1988); Blow v. Liberty Travel,
Inc., 550 F. Supp. 375, 375-76 (E.D.Pa. 1982).
The party seeking removal has the burden of showing that
federal subjectmatter jurisdiction exists, filing of the notice
of removal was timely and that removal is proper. Boyer v.
Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert.
denied, ___ U.S. ___, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991);
Steel Valley Authority v. Union Switch and Signal Division,
Amer. Standard, Inc., 809 F.2d 1006, 1011 (3d Cir. 1987),
cert. dism'd, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756
(1988); Capone, 694 F. Supp. at 112. "The removal statutes
`are to be strictly construed against removal and all doubts
are to be resolved in favor of remand.'" Boyer, 913 F.2d at
111 (quoting Steel Valley, 809 F.2d at 1010).
b. The Removal Limitations Period Under 12 U.S.C. § 1819
Courts which have considered the issue of whether Section 1446
governs the time for removal pursuant to Section 1819(b)(2)(B)
agree that the section does in fact apply. See, e.g., In re
Meyerland Co., 910 F.2d 1257, 1264 (5th Cir. 1990)
(Higginbotham, J., concurring); FDIC v. Loyd, 744 F. Supp. 126,
128 (N.D.Tex. 1990); Hunter's Run, I, Ltd. v. Arapahoe
County Public Trustee, 741 F. Supp. 207, 207 (D.Colo. 1990);
MTech Corp. v. FDIC, 729 F. Supp. 1134, 1136 (N.D.Tex. 1990);
FDIC v. Taylor, 727 F. Supp. 326, 328 (S.D.Tex. 1989); FDIC
v. Norwood, 726 F. Supp. 1073, 1075 (S.D.Tex. 1989).
Section 1819(Fourth) of Title 12 of the United States Code was
the predecessor to Section 1819(b)(2)(B). See
12 U.S.C. § 1819(Fourth), amended by FIRREA, Pub.L. No. 101-73, § 209, 103
Stat. 183, 216-17 (codified, as amended, at
12 U.S.C. § 1819(b)(2)(B)). In decisions involving Section 1819(Fourth),
courts uniformly lead that Section 1446 governed removal. See,
e.g., Bowen v. FDIC, 915 F.2d 1013, 1014-15 (5th Cir. 1990);
Kasal, 913 F.2d at 489; In re Franklin Nat'l Bank Sec.
Litig., 532 F.2d 842, 843 (2d Cir. 1976); T & M Dental Lab,
Inc. v. First Indus. Bank, 714 F. Supp. 798, 799 (E.D.La.
1989); Heafitz v. Interfirst Bank, 711 F. Supp. 92, 94-95
(S.D.N.Y. 1989); Yankee Bank for Finance & Savings, FSB v.
Hanover Square Associates-One L.P., 693 F. Supp. 1400, 1410
(N.D.N.Y. 1988); FDIC v. The Atlantic Org., Inc., 682 F. Supp. 5,
7 (D.P.R. 1988). Section 1819(Fourth) contained the language
that the FDIC may remove "by following any procedure for
removal now or hereafter in effect." 12 U.S.C. § 1819(Fourth).
Consequently, courts looked to the general federal removal
statutes because they were the removal procedures then in
effect. See In re Franklin, 532 F.2d at 846.
With FIRREA, Congress eliminated the language referring to
in effect. See FIRREA, Pub.L. No. 101-73 at § 209, 103 Stat.
at 216-17. Significantly, Congress did not replace that
language with any other language indicating the proper
procedures for removal. In this regard, "Congress is presumed
to be aware of an administrative or judicial interpretation of
a statute and to adopt that interpretation when it re-enacts a
statute without change." Lorillard v. Pons, 434 U.S. 575, 580,
98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (citations omitted). As
well, "if Congress intends for legislation to change the
judicial interpretation of a judicially created concept, it
makes that intent specific." Midlantic Nat'l Bank v. New
Jersey Dep't of Environmental Protection, 474 U.S. 494, 501,
106 S.Ct. 755, 759, 88 L.Ed.2d 859 (1986).
In this situation, Congress left a lacuna in the FIRREA as to
the procedure for removal. Even though Section 1819 was not
re-enacted verbatim, it is presumed Congress was aware of the
way courts had applied Section 1446 to Section 1819(Fourth).
Absent any indication otherwise, it is also presumed Congress
intended that a Section 1819(b)(2)(B) removal should be
governed by 28 U.S.C. § 1446.
The FDIC has failed to demonstrate Congress intended to
eliminate the thirty day limitation. Plainly, had Congress
wanted to, it could have done so. For example, Section 1819
diverges from the general federal removal statutes in that
Section 1819 allows removal by the FDIC when it is a plaintiff,
whereas the general federal removal statutes allow for removal
only by defendants. Compare 12 U.S.C. § 1819(b)(2)(B) with
28 U.S.C. § 1441. Clearly Congress, when it wanted to expand the
FDIC's removal power, explicitly provided as much. In re
Meyerland Co., 910 F.2d 1257, 1264 (5th Cir. 1990). Nothing in
the legislative history of FIRREA, however, indicates Congress
intended to uncouple the FDIC's removal powers from the general
federal removal statutes. See FIRREA, Pub.L. No. 101-73, 103
Stat. 183, passim.
The FDIC's reliance on the RTC removal limitations period is
inapposite. Congress created distinctly different procedures
for removal for the FDIC and the RTC. Matrix Ski Corp. v.
FDIC, 734 F. Supp. 763, 765 (N.D.Tex. 1990). For example,
Section 1819 allows removal to any federal court, while suits
involving the RTC can be removed only to the District of
Columbia under 12 U.S.C. § 21A(l)(3). Matrix, 734 F. Supp.
at 765. Moreover, Congress explicitly provided for a removal
limitations period for the RTC, 12 U.S.C. § 1441a(l)(3),
whereas Congress declined to do so for the FDIC. RTC v. Key,
733 F. Supp. 1086, 1089-90 (N.D.Tex. 1990). The removal
provisions for the RTC and the removal provisions for the FDIC
are not interchangeable. Key, 733 F. Supp. at 1090 n. 7.
In MTech, the FDIC attempted to advance the same arguments it
makes here. There the FDIC argued the elimination of the
language referring to removal procedures in effect indicated
Congress intended to broaden the FDIC's removal powers and that
a reasonable limitations period such as the ninety day RTC
period should be applied. 729 F. Supp. at 1136 & 1136 n. 4. The
court rejected those arguments, stating:
This Court cannot countenance such a reading of FIRREA. If
Congress had sought to insulate the FDIC from § 1446(b)'s
time restrictions, it could have explicitly said so. Nowhere
is there a "reasonableness" standard set out in the amended
statute. Nor can one find a word mentioned in the voluminous
legislative history that accompanied the act as to the
applicability or inapplicability of § 1446(b); these
materials make but a scant general reference which affirms
the FDIC's authority to remove certain state court
proceedings. This general affirmance seems the better
interpretation of FIRREA's slightly modified language.
Moreover, taken to its logical extreme, the FDIC's argument
would mean that it need not comply with any provisions of the
general removal statute, including the requirement that a
removing party file a notice of removal.
Id. at 1136 (citations omitted). Accord Norwood, 726
F. Supp. at 1075.
Because Congress failed to otherwise provide, removal under
Section 1819(b)(2)(B) is governed by the general Federal
removal statute 28 U.S.C. § 1446. Accord In re Meyerland, 910
F.2d at 1264; Loyd, 744 F. Supp. at 128; Hunter's Run, 741
F. Supp. at 207; Norwood, 726 F. Supp. at 1075; MTech, 729
F. Supp. at 1136; Taylor, 727 F. Supp. at 328. "A party
contending that legislative action changed settled law has the
burden of showing that the legislature intended such a change."
Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521, 109 S.Ct.
1981, 1991, 104 L.Ed.2d 557 (1989). The FDIC has failed to meet
this burden of showing that Congress intended to uncouple
Section 1819 from Section 1446.
c. Commencement of the Removal Limitations Period
Because the thirty day limitations period derives from Section
1446, it must be applied in a manner consistent with Section
1446. Consequently, the limitations period commences upon
receipt by the FDIC of "an amended pleading, motion, order or
other paper from which it may first be ascertained that the
case is one which is or has become removable." 28 U.S.C. § 1446(b);
See, e.g., MTech, 729 F. Supp. at 1135.
Other courts have ruled differently. Some have held the
limitation period commences as soon 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)(2)(B) gives the FDIC the power
to remove a case. 12 U.S.C. § 1819(b)(2)(B). Importantly, an
order appointing the FDIC as receiver for a bank may not
outline the specific actions in which that bank was a party.
Here, for example, the order of the New Jersey Commisioner of
Banking appointing the FDIC as receiver does not set forth any
details about the Mountain Ridge action to enforce the Notes.
See FDIC Brief at Exhibit H. Therefore, an order appointing
the FDIC as receiver, when it does not mention any specific
litigation, would not place the FDIC on notice that a
particular case is removable; it only places the FDIC on notice
that it has the power to remove.*fn13
Others courts have held the limitations period begins when the
FDIC is formally substituted as a party. See, e.g., T & M
Dental Lab, 714 F. Supp. at 799-800 (decided under
12 U.S.C. § 1819(Fourth)); Heafitz, 711 F. Supp. at 95 (decided under
12 U.S.C. § 1819(Fourth)). The court in T & M Dental Lab based
its holding on the language in Section 1819(b)(2)(A) that any
action in which the FDIC is a "party" arises under the laws of
the United States. 714 F. Supp. at 799.
Such a constricted reading of Section 1819, however, does not
comport with Section 1446. Neither Section 1819 nor Section
1446 explicitly require the FDIC be formally substituted as a
party before removal is proper. Moreover, the FDIC's interest
in an action comes into being at the moment it is appointed as
receiver, not at the moment it is formally substituted. To hold
that the thirty day limitations period commences running only
when the FDIC is formally substituted allows the FDIC to ignore
an initial pleading or other paper which indicates removal is
proper. MTech, 729 F. Supp. at 1135 (citing FDIC v. Brooks,
652 F. Supp. 745, 746 (N.D.Tex. 1988)). There is no policy,
however, that justifies allowing the FDIC to delay removal of a
case it knows can be properly removed until the moment the FDIC
is formally substituted. Brooks, 652 F. Supp. at 746.
Section 1446 should govern when the limitations period
commences because Section 1446 governs the limitations period
for removal. MTech, 729 F. Supp. at 1135. As stated above,
Section 1446 provides that the limitations period commences by
through service or otherwise of either an initial pleading or
"an amended pleading, motion, order or other paper from which
it may first be ascertained that the case is one which is or
has become removable." 28 U.S.C. § 1446(b). Consequently, after
appointment as a receiver which grants removal power, the FDIC
must remove a case within thirty days of when it receives
through service of process or otherwise a pleading or other
paper which reveals that removal is appropriate. It therefore
must be determined whether a stay under Section 1821 tolls the
running of the removal period and when the FDIC received a
paper revealing removal is proper in this case.
d. Tolling the Removal Limitations Period with a Stay Under
12 U.S.C. § 1821
The tolling issue appears to be one of first
impression.*fn14 A stay is granted in order to give the FDIC
"breathing room" to familiarize itself with the case. Taylor,
727 F. Supp. at 328. "The appointment of a conservator or
receiver can often change the character of litigation; the stay
gives the FDIC a chance to analyze the pending matters and
decide how best to proceed." H.R.Rep. No. 54(I), 101st Cong.,
1st Sess. 331 (1989), reprinted in 1989 U.S. Code Cong. &
Admin. News 86, 127.
This goal, however, is not necessarily impeded if a stay is
deemed not to toll the removal limitations period. If a stay
does not toll the removal limitations period, then the FDIC
would be forced to remove the case prior to or
contemporaneously with seeking a stay. Norwood, 726 F. Supp.
at 1076-77. Forcing the FDIC to remove prior to seeking a stay
would not cause the FDIC to be prejudiced because a stay
obtained after removal would still permit the FDIC to
familiarize itself with the case. See id. at 1076.
Removal does not require an intimate knowledge of a case; all
that it requires is some sort of awareness that the case is
removable. See 28 U.S.C. § 1446(b). This can be determined upon
receipt by any means of a paper relating to the case. Id.
Moreover, prior removal should not hinder the granting of a
stay if the FDIC moves for a stay immediately after removal.
Only if the FDIC unnecessarily delays in seeking a stay or if
the FDIC has already substantially participated in the case
will a stay be denied. See, e.g., Hunter's Run, 741 F. Supp.
at 208; Tuxedo Beach Club Corp. v. City Federal Sav. Bank,
729 F. Supp. 1508, 1510 (D.N.J. 1990); Taylor, 727 F. Supp. at
Given that the thirty day period in Section 1446 is mandatory,
this construction is consistent with both the stay and removal
statutes. Consequently, a stay of proceedings under Section
1821 should not toll the limitations period of Section 1446(b)
as applied to Section 1819(b)(2)(B).
e. The FDIC's Notice of Removal
Here, the FDIC filed its notice of removal on 3 January 1991.
Because the stay of proceedings ordered by the Superior Court
does not toll the running of the thirty day limitations period,
the next relevant issue is when did the FDIC first receive by
service of process or otherwise an initial pleading or other
paper which indicated removal was possible.
On 5 October 1990, the FDIC was appointed receiver. FDIC Brief
at 3. As discussed above, the order of the New Jersey
Commissioner of Banking appointing the FDIC as receiver did not
state that Mountain Ridge was involved in any particular
litigation. See FDIC Brief at Exhibit H. It is therefore
assumed at that point in time the FDIC did not know
specifically what actions were pending in the state courts with
respect to Mountain Ridge. See Bacsik Certification at ¶ 6
("Immediately after the Commissioner closed the Bank, the
[FDIC] sought 90-day stays of action in various courts where it
had reason to believe the Bank was engaged in litigation"). In
other words, while the FDIC had the power to remove this action
on 5 October,
it could not exercise that power because the order appointing
it as receiver did not refer to this action. Accordingly, the
thirty day limitations period did not commence running in this
case on the date the FDIC was appointed receiver. At that point
in time, however, when the FDIC knew of its removal power with
respect to Mountain Ridge litigation, it should have examined
Mountain Ridge files with a view towards removal.
An argument can be made that the removal period commenced
running when the FDIC was appointed receiver because Wiley, the
firm which represented Mountain Ridge, was in possession of
papers indicating this case was removable. See Rowe, 750
F. Supp. at 721 (mere possession, not actual knowledge,
commences running of the removal period). Thus, even though the
FDIC might not have reviewed those papers on the date of
appointment, Wiley, as Mountain Ridge's and the FDIC's agent,
could have exercised the FDIC's removal power. It is unclear,
however, that Wiley was in fact the FDIC's agent at the time
the FDIC was appointed receiver. Consequently, it is assumed
Wiley could not exercise the FDIC's removal power on 5 October.
On 13 November 1990, the FDIC informally requested Wiley to
"handle" certain cases involving Mountain Ridge. FDIC Brief at
Exhibit K. Although the letter which makes this requests does
not so specify, the FDIC has conceded that Wiley was to handle
this case. FDIC Brief at 4. The FDIC also requested copies of
the files relating to Mountain Ridge litigation in Wiley's
possession. FDIC Brief at Exhibit K. It therefore appears that
this is the first point in time that the FDIC knew of this
litigation. This conclusion is further buttressed by the fact
that Wiley represented Mountain Ridge in this case prior to the
appointment of the FDIC as receiver. See FDIC Brief at
Exhibits C, D, E & F (orders of Superior Court predating FDIC's
appointment indicating Wiley represented Mountain Ridge). Wiley
therefore had an intimate knowledge of this case and certainly
was in a position to discuss with the FDIC the propriety of
removal. Consequently, the removal of this case was untimely
because it was not removed until fifty-one days after 13
Even if the FDIC did not know of this case on 13 November, it
certainly had a sufficient opportunity to make that
determination by the time it mailed a copy of the stay to the
Moving Defendants one week later on 20 November. See FDIC
Brief at 4. Because Wiley had represented Mountain Ridge prior
to the FDIC's appointment, Wiley would have been in a position
to discuss the details of this case with the FDIC. On 1
November 1990, Wiley, on the FDIC's behalf, returned a copy of
the order granting the stay to the Superior Court Judge before
whom this action was pending. Id. at 4. It is clear,
therefore, that during the almost three week period between 1
November and 20 November, the FDIC had ample opportunity to
discuss this case with Wiley. Even if the FDIC had not received
the Mountain Ridge files it had requested, the FDIC had
sufficient information to determine who was the Superior Court
Judge and who were the opposing counsel in this action.
Accordingly, the FDIC had sufficient information to determine
whether this action was removable. Under these circumstances,
removal of this action was untimely.*fn15
4. The Pending Appeal
The Moving Defendants suggest this court should defer the
exercise of jurisdiction until after the hearing in the
Appellate Division of the Superior Court on the propriety of
the appointment of the FDIC as receiver. Defendants' Brief at
15-16. There is no need, however, to consider this suggestion
because the FDIC's notice of removal was untimely filed.
However, it is doubtful the state court, appellate division or
otherwise, had any authority after removal. In point of fact,
the removal statute is clear that after removal is effected,
"the State court shall proceed no further
unless and until the case is remanded." 28 U.S.C. § 1446(d).
For the reasons set forth above, the FDIC's notice of removal
was filed beyond the thirty day limitation under 28 U.S.C. § 1446(b).
Consequently, removal is improper and this case must
be remanded to the Superior Court of the State of New Jersey,
Law Division, Essex County. The Moving Defendants' motion to
remand is granted.