Reisinger v. Connor et al

Filing 16

ORDER granting motions to substitute receiver 9 & for ext of time 11 as follows: 1. FDIC to be SUBSTITUTED as party in place of Nova Savings Bank.; 2. Clrk of Ct shall re-caption case to reflect same.; 3. Action STAYED until... (see Pars 3a-b for specifics).; 4. FDIC-Receiver shall file pleading in response to pltf's complaint w/in 60 days after expiration of stay or proceedings granted in Para 3 pursuant to FRCP 6(b)(1)(A) & 12(a)(2). (See order for complete details.) Signed by Honorable Christopher C. Conner on 12/17/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH R. REISINGER,
Plaintiff
v.
RICHARD L. CONNOR, et al.,
Defendant

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CIVIL ACTION NO. 3:12-CV-2117
(Judge Conner)

ORDER
AND NOW, this 17th day of December, 2012, upon consideration of the
concurred-in motion (Doc. 9) of the Federal Deposit Insurance Corporation, as
Receiver for NOVA Bank (“FDIC-Receiver”), to substitute the Receiver as a Party
in Place of Nova Savings Bank1 and Stay all Proceedings, and upon further
consideration of the concurred-in motion (Doc. 11) of FDIC-Receiver for an
Extension of Time to File a Responsive Pleading while Motion to Substitute and
Stay Proceedings is Pending, and it appearing that FDIC-Receiver was appointed
receiver of NOVA Bank on October 26, 2012, and that, pursuant to the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, 12 U.S.C. § 1811 et seq.
(“FIRREA”), FDIC-Receiver succeeds “to all rights, titles, powers and privileges of
the insured depository institution,” see 12 U.S.C. §§ 1821(d)(2)(A)(i), (B)(iii); see also
FED . R. CIV . P. 25(c) (“If an interest is transferred, the action may be continued by or
against the original party unless the court, on motion, orders the transferee to be
1

FDIC avers that plaintiff incorrectly identified NOVA Bank as “Nova
Savings Bank” in his complaint. (See Doc. 10, at 4).

substituted in the action or joined with the original party.”), and it further
appearing that the court does not have jurisdiction over any claims to a failed
bank’s assets, including claims pending at the time of the receiver’s appointment,2
that have not been filed with its receiver first, see 12 U.S.C. § 1821(d); FDIC v.
Shain, Schaffer & Rafanello, 944 F.2d 129, 132 (3d Cir. 1991) (“Congress expressly
withdrew jurisdiction from all courts over any claim to a failed bank’s assets that
are made outside” the FIRREA claims process.); National Union Fire Ins. Co. v.
City Sav., F.S.B., 28 F.3d 376, 383 (3d Cir. 1994) (“[I]n order to obtain jurisdiction to
bring a claim in federal court, one must exhaust administrative remedies by
submitting the claim to the receiver in accordance with the administrative scheme
for adjudicating claims detailed in § 1821(d).”),3 and that a stay pending resolution
of the FIRREA proceedings should apply to all parties in the litigation, see Glover v.
Washington Mut. Bank, F.A., Civ. A. No. 08-990, 2009 WL 798832, at *7 (W.D. Pa.
Mar. 20, 2009) (“Judicial resources would be ill-spent if [plaintiff] could continue
now in the litigation against every defendant except the FDIC.”), it is hereby
ORDERED that the motions (Doc. 9; Doc. 11) are GRANTED as follows:

2

See, e.g., Resolution Trust Corp. v. Kolea, 866 F. Supp. 197 (E.D. Pa. 1994)
(litigants must present pre-receivership claims to the administrative review process
elicited in 12 U.S.C. § 1821(d)).
3

A receiver must provide notice to potential claimants informing them that
they have 90 days to file claims. 12 U.S.C. §§ 1821(d)(3)(B), (C). After a claim is
filed, the receiver has 180 days to determine whether to allow the claim. 12 U.S.C.
§ 1821(d)(5)(A). If the receiver disallows the claim, or the 180-day period expires,
the claimant has 60 days to continue any pre-receivership litigation. § 1821(d)(6)(A).
2

1.

The FDIC shall be SUBSTITUTED as a party to this litigation
in place of Nova Savings Bank.

2.

The Clerk of the Court shall re-caption the case to reflect this
substitution.

3.

The action shall be STAYED until:
a.

Any party to this action asserting a claim against FDIC-Receiver
(“Claimant”) notifies the Court in writing that:
i.

ii.

b.

4.

FDIC-Receiver has determined claimant’s claim pursuant
to 12 U.S.C. § 1821(d) and claimant intends to continue
this action; or
The time period for FDIC-Receiver to determine whether
to allow administrative claims pursuant to 12 U.S.C.
§ 1821(d)(5)(A) has expired and Claimant intends to
continue this action; or

Any party to this action files a motion to lift the stay
demonstrating circumstances warranting such action.

FDIC-Receiver shall file a pleading in response to plaintiff’s complaint
within sixty (60) days after the expiration of the stay of proceedings
granted in Paragraph 3 pursuant to FED . R. CIV . P. 6(b)(1)(A) and
12(a)(2).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge