Kramer, et al v. Federal Deposit Insurance Corporation, et al

Filing 30

MEMORANDUM OPINION AND ORDER: The court ORDERS the stay be LIFTED, plaintiff's 28 MOTION to Remand is GRANTED 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
MARGERIE KRAMER, Executrix of
the Estate of Beatrice Clark
Taylor,
Plaintiff,
v.

CIVIL ACTION NO. 1:08-1430

FEDERAL DEPOSIT INSURANCE
CORPORATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is the plaintiff's motion to
remand. (Doc. # 28).
that motion.

Defendants have not filed a response to

For the reasons expressed below, that motion is

GRANTED.
On October 29, 2007, plaintiff filed this civil action, in
the Circuit Court of McDowell County, against various defendants,
including Ameribank, alleging that defendants committed various
acts of negligence, breach of contract, and civil conspiracy.
See Complaint generally.

Specifically, plaintiff contends that

Ameribank was negligent in allowing defendant Sandra Faye Parker
to withdraw the contents from decedent Taylor's safety deposit
and in allowing Sandra Parker to withdraw all Taylor's money.
See Complaint ¶¶ 9, 10.

On September 19, 2008, the Office of

Thrift Supervision closed Ameribank and appointed the FDIC as
Receiver.

On December 17, 2008, the FDIC filed a Motion to Substitute,
in the McDowell County Circuit Court,
FDIC as Receiver for Ameribank.

seeking to substitute the

On that same day, the FDIC

removed the case to federal court.

On January 20, 2009, the FDIC

moved to stay this action for a period of 90 days, pursuant to
the statutory stay provisions of 12 U.S.C. § 1821(d)(12)(A)(ii).
That motion was granted on March 4, 2009, and the case was stayed
to allow plaintiff to exhaust her administrative remedies.
Thereafter, by Memorandum Opinion and Order entered on
December 5, 2013, 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.
the stay.

Inadvertently, the court neglected to lift

Furthermore, plaintiff's claims against the remaining

defendants have not been resolved and the instant motion to
remand followed.
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)

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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.
For all the reasons discussed in the Rogers Mantese case as well
as the reasons cited in plaintiff's memorandum of law, the court
declines to exercise its supplemental jurisdiction.
Accordingly, the court hereby ORDERS the stay herein LIFTED
and plaintiff's motion to remand is GRANTED 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

*

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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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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