Bama Bayou, LLC v. Federal Deposit Insurance Company

Filing 48

ORDER re: 9 Motion to Stay or, in the Alternative, Motion to Dismiss for Improper Venue or to Transfer. The motion to dismiss is DENIED, the alternative motion to transfer isGRANTED. The Court finds that transfer to the Northern District of Georgia is appropriate. Signed by Judge Kristi K. DuBose on 7/12/2011. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BAMA BAYOU, LLC,
Plaintiff,
vs.
FEDERAL DEPOSIT INSURANCE
CORPORATION, AS RECEIVER FOR
SILVERTON BANK, N.A.,
Defendant.

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CIVIL ACTION NO. 11-0140-KD-M

ORDER
This action is before the Court on the motion to dismiss for improper venue or to transfer
filed by defendant Federal Deposit Insurance Corporation (FDIC) as receiver of Silverton Bank,
N.A., plaintiff’s response, and the FDIC’s reply (docs 9. 37, 41). Upon consideration, and for the
reasons set forth herein, the motion to dismiss is DENIED, the alternative motion to transfer is
GRANTED, and this action is transferred to the Northern District of Georgia.
The FDIC moves the Court to dismiss this action for improper venue pursuant to Rule
12(b)(3) of the Federal Rules of Civil Procedure. Alternatively, the FDIC moves the Court to
transfer this action pursuant to 12 U.S.C. § 94 and 28 U.S.C. § 1406, to the Northern District of
Georgia where Silverton Bank, N.A., has its principal place of business.
Plaintiff responds that the FDIC waived venue because it removed a separate action
involving the FDIC and plaintiff to this district court and thus made a “conscious decision . . . to
submit itself to the jurisdiction of this court for resolution of the issues between itself and the
plaintiff.” Plaintiff also argues that because this action involves reformation of a foreclosure deed
for real property located in Baldwin County, Alabama, it is “local” and not “transitory”, and
therefore, the venue provision of 12 U.S.C. § 94 does not apply and there is no basis to transfer to
the Northern District of Georgia.
Section 94 provides that venue is proper in the district where the bank in receivership has it

principal place of business. The venue statute provides as follows:
Any action or proceeding against a national banking association for which the
Federal Deposit Insurance Corporation has been appointed receiver, or against the
Federal Deposit Insurance Corporation as receiver of such association, shall be
brought in the district or territorial court of the United States held within the district
in which that association's principal place of business is located, or, in the event any
State, county, or municipal court has jurisdiction over such an action or proceeding,
in such court in the county or city in which that association's principal place of
business is located.
12 U.S.C. § 94.
The venue provision unambiguously states that venue of any action against the FDIC or
against a bank for which the FDIC is a receiver, is proper in the district where the bank’s principal
place of business is located. Also, as the FDIC points out, the distinction between transitory and
local actions appears to have given way to the 1983 amendment which expressed the intent of
Congress for consolidation of actions involving failed banks. Additionally, plaintiff’s argument that
the FDIC waived operation of the venue statute by removing a separate case to the Southern District
of Alabama is of no consequence. This district court was the appropriate court for removal
purposes. A determination as to the appropriate court for removal is not based upon the same
criteria as determining the appropriate venue for bringing an action against the FDIC or a bank in
receivership.
Accordingly, the FDIC has not waived the transfer of this action and the distinction between
“local” and “transitory” actions does not persuade the Court to retain this action. Therefore, the
Court finds that transfer to the Northern District of Georgia is appropriate.
DONE this the 12th day of July, 2011.

s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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