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SAMUELS v. ACME MKT.

February 16, 1994

CHARLOTTE SAMUELS AND JACK SAMUELS, h/w
v.
ACME MARKET a/k/a AMERICAN STORES COMPANY, GLENNA LYNN SHOSTACK, BELL SAVINGS BANK, TIMOTHY LAPORTE, individually and d/b/a/ TRU-KARE MAINTENANCE SERVICE, and ROBERT F. GREGORY, ind. and d/b/a/ GREGORY PAVING CO., INC.



The opinion of the court was delivered by: JAMES MCGIRR KELLY

 J. M. KELLY, J.

 Presently before the Court is the Motion to Dismiss of the Resolution Trust Corporation ("RTC"), acting in its capacity as receiver for Bell Federal Savings ("Bell Savings"). RTC requests that the Court dismiss Plaintiffs Charlotte and Jack Samuels' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). RTC claims the Court lacks subject matter jurisdiction to determine these claims prior to the plaintiffs' exhaustion of the administrative remedies set forth in 12 U.S.C. § 1821(d)(3)-(13) (1989).

 Facts and Procedural History

 The accident triggering this lawsuit occurred in a shopping center where both an Acme Market ("Acme") and a Bell Savings were located. On February 4, 1991, Plaintiff Charlotte Samuels ("Samuels") slipped and fell while walking from the sidewalk onto the parking lot appurtenant to the Acme Market and Bell Savings. At the time of Samuels' fall, Bell Savings had liability insurance coverage for damage claims.

 On or about March 15, 1991, the Resolution Trust Corporation ("RTC") was appointed conservator and receiver for Bell Savings. On February 2, 1993, Plaintiffs filed a lawsuit to recover damages incurred as a result of Samuels' fall in the Court of Common Pleas of Montgomery County, Pennsylvania. Because plaintiffs' suit named Bell Savings as a party, the RTC was formally substituted as a defendant pursuant to 12 U.S.C. § 1441(a)(1)(3)(B) on October 4, 1993. RTC subsequently removed the suit to the United States District Court for the Eastern District of Pennsylvania pursuant to 12 U.S.C. § 1821(d)(13)(B).

 In its Motion to Dismiss, RTC argues that this Court lacks jurisdiction because of the mandatory administrative claims process set forth in the Financial Institution's Reform, Recovery and Enforcement Act of 1989 (FIRREA). Plaintiffs respond that the jurisdictional bar does not apply to a claim against the bank's insurance because insurance is not an asset.

 Discussion

 In response to the savings and loan crisis, Congress enacted the Financial Institution's Reform, Recovery and Enforcement Act of 1989 ("FIRREA"). Rosa v. Resolution Trust Corp., 938 F.2d 383, 388 (3d Cir.), cert. denied, 116 L. Ed. 2d 608, 112 S. Ct. 582 (1991). The FIRREA creates a comprehensive and mandatory administrative procedure for adjudicating claims against a failed savings and loan institution. 12 U.S.C. § 1821(d)(3)-(13). In arguing that this Court does not have jurisdiction over this case, RTC relies specifically on § 1821(d)(13)(D), which provides as follows:

 
(D) Limitation on judicial review
 
Except as otherwise provided in this subsection, no court shall have jurisdiction over--
 
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or
 
(ii) any claim relating to any act or omission of such institution or the ...

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