JONES v. FEDERAL DEPOSIT INSURANCE CORPORATION

Filing 12

ORDER to Recast Complaint. Ordered by Judge Marc Thomas Treadwell on 10/1/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHN JONES,
Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE
CORP., as receiver for McIntosh State
Bank,
Defendant.

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CIVIL ACTION NO. 5:12-CV-176 (MTT)

ORDER
Before the Court is the Defendant’s Motion to Dismiss. (Doc. 7). At this time, the
Court declines to rule at this time on the Defendant’s motion given the questions of
subject matter jurisdiction that exist and the inability to resolve these questions based
on the parties’ current filings. Therefore, pursuant to Fed. R. Civ. P. 12(a)(4), the Court
postpones its ruling on the Defendant’s motion. The Court further ORDERS:
1. The Plaintiff shall recast his Complaint. In so doing, he should state his
allegations with the greatest specificity possible, fully asserting the factual
underpinnings of his claims and enumerating the precise cause(s) of action
upon which they rest. The Plaintiff is reminded to consider the interplay
between state common law and Georgia’s version of the Uniform Commercial
Code. The recast Complaint should be filed within 14 days of the entry of this
Order.

2. The Defendant, within 21 days of the Plaintiff’s filing of his recast Complaint,
shall file an Answer to the Plaintiff’s recast Complaint. In its Answer, the
Defendant is reminded to assert with specificity any and all affirmative
defenses on which it relies.
3. If the Plaintiff desires to file a motion to remand this case to state court
pursuant to 12 U.S.C. § 1819(b)(2)(D), he must do so within 14 days of the
filing of the Defendant’s Answer. The Plaintiff is further reminded that, if he
does choose to file a motion to remand, he should address the extent to
which any federal law-based defenses the Defendant raises are “colorable”
defenses. See, e.g., Diaz v. McAllen State Bank, 975 F.2d 1145 (5th Cir.
1992); Reding v. Federal Deposit Ins. Corp., 942 F.2d 1254 (8th Cir. 1991);
Lazuka v. Federal Deposit Ins. Corp., 931 F.2d 1530 (11th Cir. 1991).
4. Any response or reply occasioned by the Plaintiff’s motion to remand, if one is
filed, will proceed according to the Federal Rules of Civil Procedure.
5. Because the Court may also remand this case sua sponte, if the Plaintiff does
not file a motion to remand within the stated time period, the Court will
consider additional briefing from the Defendant addressing the colorability of
any federal defenses it raises. Any such brief must be filed within 7 days of
the expiration of the period the Plaintiff has been provided to file a motion to
remand.
SO ORDERED, this 1st day of October, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT 
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