Robertson, et al. v. American Bankshares, Inc., et al.

Filing 16

MEMORANDUM OPINION AND ORDER: The court ORDERS the stay be LIFTED and this case is REMANDED to the Circuit Court of McDowell County, West Virginia. Signed by Senior Judge David A. Faber on 1/12/2016. (certified cc: counsel of record and Clerk, Circuit Court of McDowell County) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JERRY ROBERTSON, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 1:08-1429

AMERICAN BANKSHARES, INC.,
et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On June 15, 2007, plaintiffs filed this civil action in the
Circuit Court of McDowell County against various defendants,
including Ameribank, Inc., pursuing claims for constructive
discharge, age discrimination, and gender discrimination.

On

September 19, 2008, the Office of Thrift Supervision closed
Ameribank and appointed the FDIC as Receiver.

Subsequent to its

appointment as Receiver, on December 17, 2008, the FDIC removed
the case to this court.

The court granted the FDIC's motion to

stay, pursuant to 12 U.S.C. § 1821(d)(12)(B), and this action was
stayed to allow plaintiffs to exhaust their administrative
remedies.
Thereafter, by Memorandum Opinion and Order entered on
February 6, 2012, the court granted the motion to dismiss filed
by defendant Federal Deposit Insurance Corporation ("FDIC"), as
Receiver for Ameribank, Inc. and the FDIC was dismissed as a
party in this case.

Inadvertently, the court neglected to lift

the stay.

Furthermore, plaintiffs' claims against the remaining

defendants have not been resolved.
Where a case has been removed to federal court, the district
court must remand it to state court if it lacks subject matter
jurisdiction.

28 U.S.C. § 1447(c) ("If at any time before final

judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.").

Once the FDIC was

dismissed as a party herein, the court's basis for federal
question subject matter jurisdiction under 12 U.S.C. § 1819(b)(2)
no longer existed.

See Rogers Mantese & Assoc. v. Corp. One,

Inc., 929 F. Supp.2d 731 (E.D. Mich. 2013).*
Furthermore, as to the court's supplemental jurisdiction
under 28 U.S.C. § 1367(c), it declines to exercise it herein.
According to that statute:
The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection
(a) if—
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

*

The court recognizes the split of authority on this issue
discussed in the Rogers Mantese opinion. However, for all the
reasons discussed in that decision, the court finds the Rogers
Mantese reasoning to be persuasive.
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For all the reasons discussed in the Rogers Mantese case, the
court declines to exercise its supplemental jurisdiction.
Accordingly, the court hereby ORDERS the stay herein LIFTED
and this case is REMANDED to the Circuit Court of McDowell
County, West Virginia.
The Clerk is requested to send a copy of this Memorandum
Opinion and Order to counsel of record and to forward a certified
copy of the same to the Clerk of the Circuit Court of McDowell
County, West Virginia.
IT IS SO ORDERED this 12th day of January, 2016.
ENTER:

David A. Faber
Senior United States District Judge

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