On March 1, 1993 the FDIC informed the DER by letter that the Secretary of Banking of the Commonwealth of Pennsylvania had declared Meritor unsound, that the FDIC had been appointed receiver and that all lines of credit issued by Meritor were terminated. The letter also informed the DER that if the DER believed it had a provable claim it was required to file a proof of claim with the FDIC no later than March 19, 1993.
On March 17, 1993 the DER wrote to the FDIC asserting that the DER's pre-existing agreement with Greylag entitled the DER to draw upon the Meritor letter of credit if Greylag failed to make good the bond with acceptable collateral within thirty days. Greylag failed to provide substitute collateral. By letter dated May 21, 1993 the DER demanded that the FDIC honor the letter of credit.
On June 14, 1993, the DER received a letter from the FDIC repudiating any obligation with respect to the letter of credit. In letters dated June 24, 1993 and August 6, 1993 the DER demanded that the FDIC honor the letter of credit within thirty days and threatened legal action. On August 24, 1993 the DER received a proof of claim form from the FDIC as receiver. The form stated that any claim received after March 19, 1993 would be considered legally barred pursuant to 12 U.S.C. § 1821(d)(5)(C).
III. Legal Standard
In reviewing a Rule 12(b)(1) motion that challenges the court's actual jurisdiction to hear a claim "no presumptive truthfulness attaches to plaintiff's allegations and the existence of disputed issues of material fact will not preclude the trial court from evaluating for itself the merits of the jurisdictional claims." Mortensen v. First Federal Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977), disapproved on other grounds, Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987). A district court "is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." Frankford Hospital v. Davis, 647 F. Supp. 1443, 1445 (E.D. Pa. 1986). Further, "when subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S. Ct. 2839, 115 L. Ed. 2d 1007 (1991).
I first address defendant's argument that this Court lacks subject matter jurisdiction because 12 U.S.C. § 1821(f) vests jurisdiction over plaintiff's claim in the Court of Appeals exclusively.
Title 12 § 1819(a) provides that the FDIC may "sue and be sued, and complain and defend, in any court of law or equity, State or Federal." See Ensign Financial Corp. v. FDIC 785 F. Supp. 391, 400 (S.D.N.Y. 1992). Title 12 U.S.C. § 1819(b)(2) provides, with exceptions not relevant here, that "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."
Defendant argues, however, that this Court is divested of jurisdiction in the present matter by 12 U.S.C. § 1821(f) which provides in relevant part:
(3) Resolution of disputes