Vision Bank v. Bama Bayou, LLC et al

Filing 42

Order STAYING the execution of the remand order 33 Order Adopting Report and Recommendations, pending the appeal of this matter.. Signed by Judge Kristi K. DuBose on 3/12/2012. (cmj)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION VISION BANK, Plaintiff, v. BAMA BAYOU, LLC, et al., Defendants/Counterclaim Plaintiffs, v. VISION BANK, et al., Counterclaim Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION 11-568-KD-M ORDER This matter is before the Court on the Federal Deposit Insurance Corporation (“FDIC”)’s Motion for Relief from Order brought pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (Doc. 38). Specifically, the FDIC urges the Court to “recall its Order of Remand” on the grounds that “remand was improper because[,] under [12 U.S.C.] § 1819(b)(2)(C)[,] the FDIC ‘may appeal any order of remand entered by any United States district court.’” (Id. at 3). Although the FDIC has noticed this matter for appeal (Doc. 36), this Court has jurisdiction to consider and assess the merits of the FDIC’s motion. Mahone v. Ray, 326 F.3d 1176, 1180 (11th Cir. 2003). However, the procedural posture of this case is such that the Court’s ability to rule on the motion has been significantly curtailed. As the Eleventh Circuit has held, “following the filing of a notice of appeal[,] district courts do not possess jurisdiction to grant a Rule 60(b) motion.” Id. However, the Court agrees with the FDIC that this matter should not have been remanded until the FDIC’s time for appeal had expired. Therefore, the execution of the remand order is 1 STAYED pending the appeal of this matter. The Clerk of Court is DIRECTED to notify the state court that the remand has been stayed. DONE and ORDERED this the 12th day of March 2012. /s/ Kristi K. DuBose KRISTI K. DuBOSE UNITED STATES DISTRICT JUDGE 2

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