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PYLE v. MERITOR SAV. BANK

April 27, 1993

DOUGLAS H. PYLE
v.
MERITOR SAVINGS BANK, LOUIS CULLEN and DAVID WILSON DOUGLAS H. PYLE v. MERITOR SAVINGS BANK, LOUIS CULLEN and DAVID WILSON



The opinion of the court was delivered by: BY THE COURT; HERBERT J. HUTTON

 HUTTON, J.

 April 27, 1993

 Presently before the Court is the plaintiff Douglas H. Pyle's Motion for Remand, the Federal Deposit Insurance Corporation's ("FDIC") Opposition, and the plaintiff's response. *fn1"

 FACTUAL AND PROCEDURAL BACKGROUND

 Plaintiff, Douglas H. Pyle, was a former executive and officer of the Meritor Investment Company ("TMIC"), a division of Meritor Savings Bank ("Meritor"). TMIC managed Meritor's mutual funds pursuant to a written employment contract. Pursuant to the same agreement, the plaintiff became the president of TMIC. The contract provided for a term of employment of four and one-half years. Meritor allegedly terminated the plaintiff prematurely and without justification.

 Plaintiff filed a complaint in October of 1987 in the Court of Common Pleas of Philadelphia County. The plaintiff seeks compensatory and punitive damages for breach of contract, defamation, disparagement of product, wrongful discharge and civil conspiracy against Meritor, Louis Cullen and David Wilson. The plaintiff also filed a companion case in December of 1988 seeking equitable relief against Meritor and Sigma Management, Inc. with regard to profits and earnings from the mutual funds which were the subject of the parties' employment contract.

 On December 11, 1992, after approximately five years of litigation at the state level in this matter, the Secretary of Banking for the Commonwealth of Pennsylvania declared Meritor unsafe and unsound. The Federal Deposit Insurance Corporation ("FDIC") was appointed the Receiver for Meritor. On December 22, 1992, the FDIC removed the plaintiff's claims to the district court pursuant to 12 U.S.C. § 1819 (B). Defendants Louis Cullen and David Wilson joined in the removal on January 22, 1993. Similarly, defendant Sigma Management, Inc. joined in the removal on February 1, 1993. FDIC was not substituted as a party for Meritor in the state action.

 After removal, numerous motions were filed with this Court. Initially, on December 29, 1992, the FDIC filed its Omnibus Motion to Amend the Pleadings, Dismiss the Action or in the Alternative for a Stay. In the motion, FDIC requested, inter alia, to be substituted for Meritor Savings Bank. On January 13, 1993, in response to the motion, the plaintiff filed a Motion to Extend Time. The plaintiff requested the Court to extend plaintiff's time to respond so that he could file a motion to remand. The plaintiff then filed his Motion to Remand on January 19, 1993. On January 21, 1993, the FDIC filed a motion to have its Omnibus Motion treated as uncontested. Plaintiff filed a Second Motion to Remand on February 17, 1993.

 Since the plaintiff's motions to remand raise issues of jurisdiction, the Court will address these motions first. The plaintiff argues that removal was inappropriate. The plaintiff raises three arguments to support his contention. First, he argues that the Court lacks jurisdiction because the action is exempt from removal under 12 U.S.C. § 1819(b)(2)(D). Next, he contends that removal was improper because all defendants failed to timely join in the removal. Finally, the plaintiff avers that the FDIC's actions at the state court level constitute a waiver of the right to remove.

 DISCUSSION

 A. Removal under 12 U.S.C. § 1819

 The FDIC asserts 12 U.S.C. § 1819(b)(2)(B) as the basis for removal of the plaintiff's claims. Section 1819(b) in pertinent part provides:

 
(2) Federal court jurisdiction

 (A) In general

 
Except as provided in subparagraph (D), all suits of a civil nature at common law or in equity to which the [FDIC], in any capacity, is a party shall be deemed to arise under the laws of the United States.

 (B) Removal

 
Except as provided in subparagraph (D), the [FDIC] may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States district court before the end of the 90-day period beginning on the date the action, suit, or proceeding is filed against the [FDIC] or the [FDIC] is substituted as a party. *fn2"

 12 U.S.C. § 1819. Subparagraph (D), entitled "State actions" provides:

 
Except as provided in subparagraph (E) [not applicable in this matter], any action--
 
(i) to which the Corporation, in the Corporation's capacity as receiver of a State insured depository institution by the exclusive appointment by State authorities, is a party other than as a plaintiff;
 
(ii) which involves only the preclosing rights against the State insured depository institution, or obligations owing to, depositors, creditors, or stockholders by the State insured depository institution; and
 
(iii) in which only the interpretation of the law of such State is necessary, shall not be deemed to arise under ...

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