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PENNSYLVANIA v. FDIC

March 28, 1995

COMMONWEALTH OF PENNSYLVANIA
v.
FEDERAL DEPOSIT INSURANCE CORPORATION



The opinion of the court was delivered by: THOMAS N. O'NEILL, JR.

 O'Neill, J.

 March 28, 1995

 I. Introduction

 Currently before the Court is defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. Rule 12(b) on the grounds that the Federal Deposit Insurance Corporation (FDIC) as receiver had no obligation to honor plaintiff's letter of credit. Plaintiff responds that its letter of credit constitutes an insured deposit which the FDIC as insurer must honor. The FDIC asserted in its reply and at oral argument that this Court must nonetheless dismiss the complaint because: (1) plaintiff has failed to exhaust its administrative remedies; (2) this Court lacks jurisdiction over plaintiff's claim against the FDIC as insurer; (3) plaintiff can not show that it was a depositor in the Meritor Savings Bank (Meritor) when the FDIC assumed control of Meritor on December 11, 1992; (4) pursuant to its take over of Meritor the FDIC transferred the liability represented by the letter of credit to Mellon Bank; (5) the letter of credit had no value on December 11, 1992 even if it were to be construed as an insured deposit and; (6) pursuant to Federal Deposit Insurance Corp. v. Philadelphia Gear Corp., 476 U.S. 426, 106 S. Ct. 1931, 90 L. Ed. 2d 428 (1986), the letter of credit fails to constitute an insured deposit.

 Also before the Court is plaintiff's Motion to Compel Production.

 For the reasons that follow, I need reach only defendant's arguments that plaintiff has failed to exhaust its administrative remedies and that this Court lacks jurisdiction over plaintiff's claim against the FDIC in its capacity as insurer. I will therefore treat defendant's motion as arising under Fed.R.Civ.P. Rule 12(b)(1).

 II. Background

 The facts as alleged in the complaint are as follows. On August 26, 1991, Greylag Technical Services of Pennsylvania, Inc. (Greylag) applied to the Pennsylvania Department of Environmental Resources (DER) for a license to transport hazardous waste. Greylag received a license on October 31, 1991 and was required to post a bond in the amount of $ 10,000.00. To fulfill this bond obligation Greylag secured from Meritor an irrevocable and automatically renewable standby letter of credit in favor of the DER.

 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). *fn1"

 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).

 IV. Discussion

 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) ...


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