          Case: 15-11774   Date Filed: 12/08/2015   Page: 1 of 8


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11774
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:14-cv-24669-JLK



FLAGLER INVESTMENT MARIETTA, LLC,
CHRIS COOTS,
DIDIER CHOUKROUN,

                                            Plaintiffs - Appellees,

versus

MULTIBANK 2009-1 CRE VENTURE, LLC,

                                            Defendant,

FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Integrity Bank,

                                            Defendant - Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                           (December 8, 2015)
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Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

         The Federal Deposit Insurance Corporation, as receiver for Integrity Bank,

appeals an order of the district court remanding this action to state court. The

district court, relying on our decision in FDIC v. North Savannah Prop., LLC, 686

F.3d 1254 (11th Cir. 2012), ruled that the FDIC’s motion to remove was untimely

because it came more than 90 days after the FDIC filed its motion to intervene in

the state court action. The FDIC argues that North Savannah is inapposite because,

unlike the situation in that case, here the FDIC was not substituting itself for a

failed bank. Instead, it sought to intervene because it retained the liabilities related

to a loan it sold to Multibank, the defendant in the state court action. The FDIC

asserts that, under 12 U.S.C. § 1819(b)(2)(B), it had 90 days from November 10,

2014—the date the state court granted its motion to intervene—to remove the

action.

         We agree with the FDIC, and therefore reverse the district court’s remand

order.

                                           I

         In March of 2007, Flagler Investment Marietta, LLC, obtained a commercial

real estate construction loan from Integrity Bank in the amount of $5.8 million.

The loan was to be used to purchase property on Marietta Street in Atlanta,


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Georgia. In August of 2008, the Georgia Department of Banking and Finance

closed Integrity Bank and appointed the FDIC as receiver. In this capacity, the

FDIC succeeded to “all rights, titles, powers, and privileges” of Integrity Bank by

operation of federal law. See 12 U.S.C § 1821(d)(2)(A).

      In January of 2010, the FDIC sold the Flagler loan to Multibank. Under the

terms of the agreement, the FDIC retained all liabilities pertaining to the loan.

      On August 24, 2010, Flagler and two individuals filed suit against

Multibank in a Florida circuit court. The complaint alleged that Integrity Bank had

breached the terms of the loan agreement by failing to fund the amounts agreed to

for tenant improvements. On August 15, 2014, the FDIC filed a motion to

intervene on the ground that it had retained the liabilities that formed the basis of

Flagler’s complaint. The state court granted the FDIC’s motion on November 10,

2014, and the FDIC removed the case to federal court on December 10, 2014.

      This appeal follows the district court’s February 9, 2015, order of remand.

The district court ruled that the FDIC’s motion to remove was untimely. See D.E.

at 12. The district court recognized that in this case, unlike in North Savannah, “the

FDIC did not seek substitution for a failed institution. Rather, the FDIC sought to

substitute itself for an assignee of certain assets of a failed institution for which the

FDIC maintained liability.” Id. at 2. Nonetheless, the district court applied the

“bright-line rule” from North Savannah, and ruled that “the FDIC was entitled to


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remove this action the moment it filed its motion for intervention . . . in the state

court action. And, it follows that the time for removal must have begun running at

the same moment.” Id. at 3. Finding that the 90-day removal period began to run

on August 15, 2014, and ended on November 14, 2014, the district court ruled that

the FDIC’s removal on December 10, 2014, was untimely.

                                          II

      Under § 1819(b)(2)(C), the FDIC, in any capacity, “may appeal any order of

remand entered by any United States district court.” We review de novo the issue

of subject-matter jurisdiction and the granting of a motion to remand. See Pacheco

de Perez v. AT&T Co. 139 F.3d 1368, 1373 (11th Cir. 1998). See also North

Savanah, 686 F.3d at 1257.

      The FDIC argues that the district court erred in granting Flagler’s motion to

remand because it removed the action within the 90-day removal period set forth in

§ 1819(b)(2)(B) (providing that the FDIC may remove any action from state court

“before the end of the 90-day period beginning on the date the action . . . is filed . .

. or the [FDIC] is substituted as a party”). The FDIC contends that the 90-day

removal period began on November 10, 2014, when its motion to intervene was

granted by the state court. Flagler, on the other hand, argues that the 90-day

removal period began on August, 15, 2014, the date that the FDIC filed its motion

to intervene.


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      In North Savannah, we established the following “bright-line rule”: “[B]y

virtue of § 1821(d)(2)(A)(i), the FDIC is automatically substituted for [a] failed

institution as a matter of federal law the moment that it files a notice of substitution

in court, and the 90-day removal period set forth in § 1819(b)(2)(B) begins to run

from the filing of that notice.” North Savannah, 686 F.3d at 1260. Here, however,

Multibank—the state court defendant—is not a failed bank; it is instead the bank

that purchased all the assets of a failed bank from the FDIC. The FDIC retained all

liabilities for loans entered into by Integrity Bank prior to December 4, 2009,

including the loan in this case, but it did not move to substitute itself for Multibank

or anyone else in the state court action.

      We conclude that the district court applied North Savannah too broadly. In

North Savannah the 90-day removal period began on the date the FDIC substituted

itself for a failed bank because substitution was automatic as a matter of law. North

Savannah, 686 F.3d at 1260 “Otherwise, there would be no party remaining on one

side of the action.” Id. Here, had the state court denied the FDIC’s motion to

intervene there would still have been a party—Multibank—on the defense side of

the action. Although the FDIC retained all potential liabilities for the loan made by

Integrity Bank, Multibank was never a failed bank and always remained a party in

the action filed by Flagler and the other plaintiffs.




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      In this scenario, the FDIC was not a party in the case until the state court

granted its motion to intervene. As the Sixth Circuit has explained, “[i]ntervention

cannot, as a general rule, create jurisdiction where none exists.” Village of

Oakwood v. State Bank, 481 F.3d 364, 367 (6th Cir. 2007).

      In Village of Oakwood, the FDIC, as receiver for a bank that had been

placed in federal receivership, moved to intervene in a state court action because it

had purchased the assets and deposits of the bank that was being sued. Before the

state court ruled on its motion, however, the FDIC removed the case, and the

plaintiffs filed a motion to remand. The district court denied the motion to remand,

and granted summary judgment in favor of FDIC.

      The Sixth Circuit reversed, holding that the district court did not have

jurisdiction because “intervention requires an existing claim within the court’s

jurisdiction” and “the FDIC’s intervention cannot create jurisdiction where none

existed.” Id. at 368. Because the FDIC was not being substituted for a failed

bank—and, therefore, was not a party in the state action until its motion to

intervene was granted—the district court was without jurisdiction at the time of

removal. See id.

      In Allen v. FDIC, 710 F.3d 978, 980 (9th Cir. 2013), the FDIC was the

supervising bank for the financial institution sued in the state action. The FDIC

moved to intervene, but prior to its motion being granted, the FDIC removed the


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case to federal court. The district court granted the plaintiffs’ motion to remand,

explaining that “the FDIC could not remove the case because it was not a party to

the state court action.” The Ninth Circuit affirmed, “conclud[ing] that §

1819(b)(2)(B) authorizes removal by the FDIC after it has obtained party status.

Simply filing a motion to intervene does not open the removal window.” Id. at 982.

      As the Ninth Circuit explained, § 1819(b)(2)(B) allows the FDIC to remove

cases to district court where it has been substituted as a party. Allen, 710 F.3d at

981. “As drafted, 12 U.S.C. § 1819(b)(2)(B) does not authorize removal by the

FDIC where it is not a party to the state court action and its role in the litigation is

limited to a prospective, would-be intervenor.” Id. at 985.

      As in Allen and Village of Oakwood, the FDIC in this case was not a party to

the state court action because it was not substituting for a failed bank. As a result it

could not have sought removal until it became a party—i.e., until its motion to

intervene was granted. The motion to intervene was granted on November 10,

2014, and the FDIC removed the action on December 10, 2014, well within the

statutory 90-day removal period under 12 U.S.C. § 1819(b)(2)(B). The district

court therefore erred in remanding the action to state court.

                                          III

      We reverse the district court’s remand order, and remand for further

proceedings.


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REVERSED AND REMANDED.




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