Bick v. Federal Deposit Insurance Corporation

Filing 8

MEMORANDUM AND ORDER ; IT IS HEREBY ORDERED that the defendant's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(1) [Doc. # 6 ] is granted.. Signed by District Judge Carol E. Jackson on 11/13/12. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRANK C. BICK, individually and as
Trustee of the FRANK C. BICK
REVOCABLE TRUST,
Plaintiff,
vs.
FEDERAL DEPOSIT INSURANCE
CORPORATION as RECEIVER for
IRWIN UNION BANK, F.S.B.,
Defendant.

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No. 4:11-CV-1844 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion to dismiss, pursuant to FED. R.
CIV. P. 12(b)(1), filed by defendant the Federal Deposit Insurance Corporation. The
plaintiff has not filed a response, and the time allowed for doing so has expired.
In the complaint, plaintiff alleges that in September 2006, defendant Irwin Union
Bank (IUB) negligently caused money to be distributed from plaintiff’s account. On
September 18, 2009, IUB was closed and the FDIC was appointed as receiver. Plaintiff
filed suit against the bank in the Circuit Court of St. Louis County, Missouri, on
February 18, 2011. On October 21, 2011, the action was removed to this Court.
Defendant now moves to dismiss the action for lack of subject matter jurisdiction.
In 1989, Congress enacted the Financial Institutions Reform, Recovery and
Enforcement Act by which “Congress established a comprehensive claims review
process for claims against the assets of failed banks held by the FDIC as receiver.” TriState Hotels, Inc. v. Federal Deposit Insurance Corporation, 79 F.3d 707, 712 (8th Cir.
1996). Claimants must initially submit their claims to the FDIC for review, and must

exhaust the administrative review process before a court has jurisdiction to hear the
claims. Id. at 711-12. “Except as otherwise provided in this subsection, no court shall
have jurisdiction over any claim or action seeking a determination of rights with respect
to, the assets of any depository institution for which the [FDIC] has been appointed
receiver. . . .” 12 U.S.C. § 1821(d)(13)(D).

“The only exception is found in §

1821(d)(6)(A), which provides that courts have jurisdiction over claims that have first
been presented to the FDIC under its administrative review process.” Id. at 712. The
Tri-State Hotels court concluded that read together, the two provisions “mandate that
administrative exhaustion is required before any court acquires subject matter
jurisdiction over a claim against the FDIC as receiver for a failed thrift.” Id. (citing
Bueford v. Resolution Trust Corp., 991 F.2d 481, 484 (8th Cir. 1993)).
Because plaintiff does not allege in the complaint that he filed a claim with the
FDIC, nor has plaintiff presented any evidence of having done so. Plaintiff has not
exhausted his administrative remedies, and the Court therefore lacks subject matter
jurisdiction of this action.
Accordingly,
IT IS HEREBY ORDERED that the defendant’s motion to dismiss pursuant to
FED. R. CIV. P. 12(b)(1) [Doc. #6] is granted.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of November, 2012.

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