NBH Bank NA et al v. Marlin Atlantis White Ltd et al

Filing 30

Memorandum Opinion and Order Denying 18 Motion to Remand filed by MA BB Owen LP, Roscoe F White, III. This court is without authority to remand this action to state court. (Ordered by Judge Sam A Lindsay on 7/28/2014) (cea)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NBH BANK, N.A. f/k/a Bank Midwest
NA, Successor by Merger to Hillcrest Bank
NA as Successor-in-interest to Hillcrest
Bank,
Plaintiff,
v.
MARLIN ATLANTIS WHITE, LTD.;
JOHN MARLIN; ROSCOE F. WHITE,
III; WHITESTONE HOUSTON
HOLDINGS, LLC; and WMA
WHITESTONE LAND, LP.,
Defendants,
and
MA BB OWEN, L.P.,
Intervenor Plaintiff.

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Civil Action No. 3:13-CV-3470-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ (Roscoe F. White, III (“White”) and MA BB Owen, L.P.
(“BB Owen”), collectively referred to as Defendants)1 Motion to Remand, filed January 27, 2014.
After careful consideration of the motion, brief, response, record and applicable law,2 the court
denies Defendants’ Motion to Remand.

1

BB Owen is referred to as a “defendant” in Defendants’ motion; however, in the caption of the motion and
in the caption of Plaintiff’s response, BB Owen is referred to as “Intervenor Plaintiff.” To avoid confusion in this
opinion, the court treats BB Owen as a defendant.
2

Defendants did not file a reply to Plaintiff’s response to their motion to remand.

Memorandum Opinion and Order – Page 1

I.

Background
Defendants filed the motion to remand because the Federal Deposit Insurance Corporation

(“FDIC”) has been dismissed and is no longer a party to this action. Defendants contend that the
court should exercise its discretion and remand this action to state court because no federal claims
remain, rather than exercise its supplemental jurisdiction over the state claims.
Plaintiff NBH Bank, N.A. (“Plaintiff” or “NBH”) disagrees and contends that the court has
no authority to exercise its discretion and remand the remaining state law claims. The court agrees
with NBH.
II.

Discussion
In their amended pleadings, White and BB Owen made the following statement regarding

federal jurisdiction:
This Court’s jurisdiction was premised upon the joinder of the Federal Deposit
Insurance Corporation (“FDIC”) as a party to this lawsuit involving state law
claims. On August 28, 2013, the FDIC timely removed this case under 12 U.S.C.
§ 1819(b)(2) and 28 U.S.C. §1442(a)(1). On December 23, 2013, [Defendants]
filed a Notice of Voluntary Dismissal of the FDIC without Prejudice under Federal
Rule of Civil Procedure 41(a)(1). As a result, the FDIC is no longer a party to this
lawsuit; thus no federal question is presented. [Defendants intend] to file a Motion
to Remand this case back to state court. The Court’s jurisdiction going forward is
based upon the Court’s exercise of supplemental jurisdiction over the remaining
state law claims.
Defs.’ Mot. to Remand 3, ¶ 11. Defendants correctly state that the court dismissed the FDIC as a
party to this action on December 23, 2013. Defendants rely on 28 U.S.C. § 1367(c)(3) and
Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988), which concluded that “a district
court has discretion to remand to state court a removed case involving pendent claims upon a
proper determination that retaining jurisdiction over the case would be inappropriate.” While this
is a correct statement of the law insofar as it goes, there is more to the story.

Memorandum Opinion and Order – Page 2

Defendants overlook or disregard authority directly on point from the Fifth Circuit. As
Defendants acknowledge, the FDIC timely removed this action from state court pursuant to 12
U.S.C. § 1819(b)(2). When the FDIC removes a case pursuant to this statute and is later dismissed
as a party, federal jurisdiction continues over all claims in the action, “regardless of their state or
federal origin.” Adair v. Lease Partners, Inc., 587 F.3d 238, 244-45 (5th Cir. 2009). In other
words, once this case was removed by the FDIC pursuant to 12 U.S.C. § 1819(b)(2), the case
became “federalized.” As federal jurisdiction continues in this case, this court is without authority
to remand it to state court. Id. at 245 (footnote omitted).
III.

Conclusion
For the reasons herein stated, this court is without authority to remand this action to state

court. Accordingly, the court denies Defendants’ Motion to Remand.
It is so ordered this 28th day of July, 2014.

_________________________________
Sam A. Lindsay
United States District Judge

Memorandum Opinion and Order – Page 3