Laureano v. FDIC as Receiver of RG Premier Bank of Puerto Rico et al
Filing
15
OPINION AND ORDER granting 10 Motion to Dismiss for Lack of subject-matter Jurisdiction. Accordingly, the Court will enter a separate Final Judgment dismissing the claims against FDIC with prejudice and the claims against R & G Financial without prejudice. Signed by Judge Jose A Fuste on 08/08/2011. (dv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JAIME I. LAUREANO-VEGA,
Plaintiff
v.
CIVIL NO. 10-1650 (JAF/JP)
FEDERAL DEPOSIT INSURANCE
CORPORATION, et al.,
Defendants
OPINION AND ORDER
Before the Court is a motion to dismiss (No. 10) for lack of
subject-matter
jurisdiction
filed
by
Defendant
Federal
Deposit
Insurance Corporation (“FDIC”), as Receiver of R-G Premier Bank of
Puerto Rico (“R-G”). Said motion is unopposed (No. 13). Plaintiff
brought
state
law
claims
against
FDIC
and
R
&
G
Financial
Corporation. For the reasons stated herein, Defendant’s motion to
dismiss is hereby GRANTED.
I.
FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY
Plaintiff Jaime Laureano-Vega (“Laureano”) allegedly worked for
R-G from February 3, 1992 until November 13, 2009. When Plaintiff was
dismissed from his employment, he held the position of Sales District
Manager and earned a salary of $2,346.00 per week.
CIVIL NO. 10-1650 (JAF/JP)
-2-
On November 13, 2009 and while on sick leave, Plaintiff alleges
that he received a call from Miriam Pereira informing him of his
dismissal. Plaintiff was allegedly dismissed because Heriberto Mendez
(“Mendez”), Vice President of Sales, was upset with Plaintiff for
Plaintiff’s statements that there were irregularities in the process
for evaluating personnel and managers. Plaintiff stated that a
different metric was being used and, allegedly, the Human Resources
Director agreed with Plaintiff. As such, Plaintiff alleges that
Mendez began to harass Plaintiff and eventually retaliated by having
him dismissed from his employment with R-G.
On December 11, 2009, Plaintiff brought the instant action in
the Puerto Rico Court of First Instance (No. 8-1, p. 57-62) against
R-G and R & G Financial Corporation (“R & G Financial”). On April 30,
2010, the Office of the Commissioner of Financial Institutions of the
Commonwealth of Puerto Rico closed R-G and caused the FDIC to be
appointed as receiver. As such, on June 15, 2010, the Court of First
Instance of Puerto Rico entered an order substituting FDIC as the
Defendant and real party in interest in place of R-G.
This case was removed to the United States District Court for
the District of Puerto Rico on July 13, 2010 (No. 1). Based on the
FDIC’s appointment as receiver, the FDIC sent Plaintiff a letter
informing him of his right to submit an administrative claim to the
FDIC on or before August 4, 2010. Plaintiff timely filed a proof of
CIVIL NO. 10-1650 (JAF/JP)
-3-
claim. On September 30, 2010, the FDIC mailed to Plaintiff, by
certified mail return receipt requested, the disallowance notice
denying the claim. The instant motion was then filed on December 16,
2010.
II.
LEGAL STANDARD FOR RULE 12(b)(1) MOTION
Federal courts are courts of limited jurisdiction. Destek Group
v.
State
of
New
Hampshire
Public
318 F.3d 32, 38 (1st Cir. 2003).
Utilities
Commission,
The party claiming there is
jurisdiction carries the burden of showing that the court has
jurisdiction.
Murphy
v.
United
States,
45
F.3d
520,
522
(1st Cir. 1995).
Motions
brought
under
Federal
Rule
of
Civil
Procedure
(“FRCP”) 12(b)(1) are subject to a similar standard as FRCP 12(b)(6)
motions.
Torres Maysonet v. Drillex, S.E., 229 F. Supp. 2d 105,
107 (D.P.R. 2002).
A court must “treat all allegations in the
complaint as true and draw all reasonable inferences therefrom in
favor of the plaintiff.”
Rumford Pharmacy, Inc. v. City of East
Providence, 970 F.2d 996, 997 (1st Cir. 1992); see also Torres
Maysonet, 229 F. Supp. 2d at 107.
CIVIL NO. 10-1650 (JAF/JP)
-4III.
ANALYSIS
Defendant FDIC argues that the motion to dismiss should be
granted
because
procedural
Plaintiff
requirements
of
failed
the
to
comply
Financial
with
the
mandatory
Institutions
Recovery and Enforcement Act of 1989 (“FIRREA”).
Reform,
The Court will now
consider Defendant’s unopposed argument.
A.
Claims against FDIC
When serving as receiver, the FDIC has authority under FIRREA
to determine claims in accordance with the procedures established in
12 U.S.C. § 1821(d)(3)-(6). The FDIC is provided with 180 days to
either allow or disallow claims which are timely filed with the FDIC.
12 U.S.C. § 1821(d)(5)(A)(i). The FDIC should allow claims which are
proven to its satisfaction. Id. § 1821(d)(5)(B).
When the FDIC disallows a claim, the claimant may proceed to
file suit for such a claim or continue an action which was commenced
prior to the appointment of the receiver in specific courts and in
accordance with limitations periods provided for in 12 U.S.C. §
1821(d)(6). Specifically, said statute provides:
(A) In general
Before the end of the 60-day period beginning on the
earlier of (i) the end of the [180 day termination] period
described in paragraph (5)(A)(i) with respect to any claim
against a depository institution for which the Corporation
is receiver; or (ii) the date of any notice of
CIVIL NO. 10-1650 (JAF/JP)
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disallowance of such claim pursuant to paragraph
(5)(A)(I), the claimant may . . . file suit on such claim
(or continue an action commenced before the appointment of
the receiver) in the district or territorial court of the
United States for the district within which the depository
institution’s principal place of business is located or
the United States District Court for the District of
Columbia (and such court shall have jurisdiction to hear
such claim).
(B) Statute of limitations
If any claimant fails to . . . file suit on such claim (or
continue an action commenced before the appointment of the
receiver), before the end of the 60-day period described
in subparagraph (A), the claim shall be deemed to be
disallowed (other than any portion of such claim which was
allowed by the receiver) as of the end of such period,
such disallowance shall be final, and the claimant shall
have no further rights or remedies with respect to such
claim.
Id. § 1821(d)(6)(A)-(B) (emphasis added).
Thus, within 60 days of receiving the notice of disallowance,
claimant has to either file a new action in the appropriate federal
court or continue an action that started prior to the appointment of
the FDIC as receiver. To continue an action requires some affirmative
act by the claimant. See, e.g., Lakeshore Realty Nominee Trust v.
FDIC, 1994 WL 262913, at *1-2 (D.N.H. May 25, 1994) (dismissing case
where Plaintiff did nothing to reactivate his claim); First Union
National Bank of Florida v. Royal Trust Tower, Ltd., 827 F. Supp.
1564, 1567-68 (S.D. Fla. 1993).1 Failure to comply with these
1
There is some case law suggesting that in order to “continue”
an action there is no need to take affirmative action. See New Bank
CIVIL NO. 10-1650 (JAF/JP)
requirements
deprives
courts
-6of
jurisdiction.
See
12
U.S.C.
§
1821(d)(13)(D).
After considering the argument, the Court agrees with Defendant
FDIC. Plaintiff timely filed a proof of claim. The FDIC disallowed
Plaintiff’s claim on September 30, 2010.2 Based on said disallowance,
Plaintiff had 60 days to either start a new action in the appropriate
federal court or “continue” with the instant suit that he filed prior
to the FDIC being appointed as receiver for R-G. 12 U.S.C. §
1821(d)(6). The 60 day period expired on November 29, 2010.
In the instant case, Plaintiff did not provide the Court with
any information as to whether he timely filed a new action in federal
court. Moreover, Plaintiff has taken no action in this case. As such,
the Court finds that Plaintiff’s action against the FDIC fails since
he did not comply with the 60 day statute of limitations provided for
in 12 U.S.C. § 1821(d)(6).
B.
Claims against Defendant R & G Financial Corporation
In addition to his claims against the FDIC, Plaintiff brought
Puerto Rico law claims against Defendant R & G Financial. However,
with the dismissal of the claims against the FDIC, there are no
of New England, N.A. v. Callahan, 798 F. Supp. 73, 76 (D.N.H. 1992).
However, after examining the other relevant case law on the matter,
the Court finds the Callahan decision to be unpersuasive.
2
It is important to note that the disallowance that was mailed
to Plaintiff actually warned him of the consequences of not filing
a new suit and not continuing his current suit within 60 days.
CIVIL NO. 10-1650 (JAF/JP)
-7-
pending claims giving rise to federal jurisdiction. 12 U.S.C. §
1819(b)(2)(A). As such, dismissal of pending state law claims is
proper because an independent jurisdictional basis is lacking.
Exercising jurisdiction over pendent state law claims once the
federal
law
claims
discretionary.
are
no
longer
present
in
the
lawsuit
is
See Newman v. Burgin, 930 F.2d 955, 963 (1st
Cir. 1991) (holding that “[t]he power of a federal court to hear and
to determine state-law claims in nondiversity cases depends upon the
presence
of
at
least
one
‘substantial’
federal
claim
in
the
lawsuit . . . [and] the district court has considerable authority
whether
or
not
considerations
as
to
exercise
judicial
this
economy,
power,
in
light
convenience,
of
fairness
such
to
litigants, and comity[]”).
Here, the Court chooses not to hear the state law claims brought
by Plaintiff against Defendant R & G Financial. As such, the Court
will enter judgment dismissing the claims against R & G Financial
without prejudice.
IV.
CONCLUSION
Thus, the Court grants Defendant FDIC’s motion to dismiss for
lack of subject-matter jurisdiction. Accordingly, the Court will
enter a separate Final Judgment dismissing the claims against FDIC
CIVIL NO. 10-1650 (JAF/JP)
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with prejudice and the claims against R & G Financial without
prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of August, 2011.
S/JOSE ANTONIO FUSTE
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE
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