United States Court of Appeals
For the First Circuit
No. 19-1845
FEDERAL DEPOSIT INSURANCE CORPORATION,
as Receiver for Doral Bank,
Plaintiff, Appellant,
v.
CONSTRUCTORA JAPIMEL, INC.,
Defendant, Appellee,
MAPFRE PRAICO INSURANCE CO. OF PUERTO RICO,
Defendant, Third-Party Plaintiff, Appellee,
and
ECHANDI GUZMAN & ASSOCS., INC., Echandi, Inc.; EFRAIN ECHANDI-
OTERO; ACE INSURANCE CO.,
Third-Party Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Duncan N. Stevens, with whom Colleen J. Boles and J. Scott
Watson were on brief, for appellant.
Manuel Sosa, with whom Ian P. Carvajal and Saldaña, Carvajal
& Vélez-Rivé, P.S.C. were on brief, for appellee Constructora
Japimel, Inc.
November 24, 2020
LYNCH, Circuit Judge. The Federal Deposit Insurance
Corporation ("FDIC") appeals from a March 2019 order remanding
this removed case to Puerto Rico's Court of First Instance. We
hold that the district court erred when, contrary to the text of
12 U.S.C. § 1819(b)(2)(B), it remanded to the local Puerto Rico
court a suit asserting claims by Constructora Japimel, Inc.
("Japimel") against Doral Bank ("Doral"), a failed bank, after the
FDIC had become Doral's receiver, had filed a notice of
substitution in state court to become a party to the suit, and had
timely removed the suit to federal court.
I. Facts and Procedural History
On February 14, 2007, Pórtico del Sol, Inc. ("Pórtico")
contracted with Japimel to build a housing project in Carolina,
Puerto Rico. Mapfre Praico Insurance Company ("Mapfre")
guaranteed Japimel's performance. Pórtico financed the project
through Doral. The project was never finished.
In October 2009, Doral1 sued Japimel and Mapfre in Puerto
Rico's Court of First Instance alleging breach of contract.
Japimel counterclaimed, alleging that Doral breached the contract,
acted in bad faith, and violated Article 1802 of the Puerto Rico
Civil Code, P.R. Laws Ann. tit. 31, § 5141. It sought
1 Through contracts entered into in March 2007 and May
2009, Pórtico assigned Doral its rights and obligations related to
the project.
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$6,317,865.67 in damages plus costs and attorneys' fees. Mapfre
also counterclaimed for breach of contract and sought
$4,317,865.67 in damages plus costs and attorneys' fees. The
contract contained an arbitration clause. In February 2012, the
Court of First Instance stayed the case pending arbitration.
Three years later, on February 27, 2015, Puerto Rico's
Office of the Commissioner of Financial Institutions determined
that Doral had failed and appointed the FDIC as Doral's receiver.
In March 2015, the FDIC sold Doral's Pórtico loan to Bautista REP
PR Corp. ("Bautista"). Japimel sent a Proof of Claim to the FDIC
on June 4, 2015, describing Japimel's claim against Doral. The
FDIC disallowed this claim on December 2, 2015. It told Japimel
that Doral's obligation had been assumed by Bautista. It also
told Japimel that if it did not agree with the disallowance of its
claim, it could dispute the disallowance pursuant to 12 U.S.C.
§ 1821(d)(6).
Meanwhile, on June 15, 2015, Bautista moved to
substitute itself for Doral in the arbitration proceeding
involving Doral, Japimel, and Mapfre. Japimel opposed this motion.
The arbitration panel did not substitute Bautista for Doral.2
2 The arbitrators could not decide whether substitution
was appropriate. They stated that, without more information, they
did not know if Bautista's purchase of Doral's loan to Pórtico
also included Pórtico's contractual claims against Japimel. They
demanded that Bautista provide details of its transaction with the
FDIC. Instead of complying, Bautista filed a motion for
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Bautista also moved to substitute itself for Doral in
the Court of First Instance on June 23, 2015. The court determined
that it lacked jurisdiction to substitute Bautista for Doral
because of the pending arbitration. Doral remained a party to the
suit.
On February 22, 2018, the FDIC filed a notice of
substitution to substitute itself for Doral in Doral's action
against Japimel and Mapfre in the Court of First Instance.3 The
next day, it removed the case to the U.S. District Court for the
District of Puerto Rico under 12 U.S.C. § 1819(b)(2)(B) and 28
U.S.C. § 1442(a)(1).
On March 16, 2018, Japimel moved to remand the case to
the Court of First Instance. The FDIC opposed Japimel's motion
and moved to dismiss all of Japimel's claims against it.
The district court granted Japimel's remand motion and
denied the FDIC's motion to dismiss as moot. The court
acknowledged that the plain language of § 1819(b)(2)(B) says that
reconsideration. It later sought injunctive relief from the Court
of First Instance to stay the arbitration panel's discovery
request, but the court refused to consider Bautista's motion
because Bautista was not a party to Doral's suit against Japimel
and Mapfre.
3 At oral argument, the FDIC explained that it waited to
substitute itself for Doral and remove the case because it
originally expected Bautista and Japimel to work out the terms of
Bautista's substitution for Doral on their own. It took action
only after Bautista and Japimel had reached an impasse.
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the FDIC has the right to remove a case to federal court if the
FDIC is a party to it. It also acknowledged that other courts
have held that whether a state court has approved the FDIC's
substitution is irrelevant to removal under § 1819(b)(2)(B)
because a state court is "statutorily 'compelled' to grant [the]
FDIC's substitution request."
Nonetheless, the district court granted the motion to
remand over the objection of the FDIC. As for its reasons, the
court said that the plain language of § 1819(b)(2)(B) and the
precedent the FDIC cited "presuppose[] that the underlying
substitution request triggering the FDIC’s removal right was
appropriate." It held that the FDIC "has no standing to remove in
2018 a case that involves [a loan] . . . it had already sold to
Bautista." It remanded the case to the Court of First Instance on
March 22, 2019. The FDIC filed a motion for reconsideration, which
the district court denied.
The FDIC timely appealed the remand order4 and the denial
of its motion to dismiss.
II. Legal Analysis
Our review of the district court's remand order, which
turned on the interpretation of a statute, is plenary. See Fayard
4 While remand orders are generally not reviewable, see 28
U.S.C. § 1447(c), 12 U.S.C. § 1819(b)(2)(C) allows the FDIC to
"appeal any order of remand entered by any United States district
court."
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v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 45 (1st Cir. 2008);
F.D.I.C. v. Keating, 12 F.3d 314, 316 (1st Cir. 1993).
The FDIC argues that the district court erred by
remanding the case to the Court of First Instance. It says that
the FDIC is a party to the case and that the text of § 1819(b)(2)(B)
forbids the district court from remanding to state court a case
the FDIC has removed. Japimel argues that the FDIC, having sold
Doral's loan and associated liabilities to Bautista, is not a real
party in interest and had no right to remove the case to federal
court under § 1819(b)(2)(B).
The text of 12 U.S.C. § 1819(b)(2)(B) says:
[T]he Corporation 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 Corporation or the
Corporation is substituted as a party.
The statute defines "state" to include Puerto Rico. 12
U.S.C. § 1813(a)(3). There is an exception to the FDIC's ability
to remove cases under certain conditions, see 12 U.S.C.
§ 1819(b)(2)(D), but they are not present here. Japimel does not
argue that § 1819(b)(2)(D) applies.
When interpreting a statute, "courts must presume that
a legislature says in a statute what it means and means in a
statute what it says." Barnhart v. Sigmon Coal Co., 534 U.S. 438,
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461–62 (2002) (quoting Conn. Nat'l. Bank v. Germain, 503 U.S. 249,
253–54 (1992)). When a statute's text is unambiguous, "judicial
inquiry is complete." Id. at 462 (quoting Conn. Nat'l. Bank, 503
U.S. at 254). The text of § 1819(b)(2)(B) is clear and
unambiguous: When the FDIC is substituted as a party to a case in
state court, it can remove the case to federal court within ninety
days. The failure of the district court to adhere to the text was
obvious error. The statute does not permit it to act as it did.
A district court has no discretion to remand a case
removed under § 1819(b)(2)(B) provided the statute's requirements
are satisfied. Nothing in the statute's text permits the district
court to inquire into whether the FDIC should be a party to the
case or whether the FDIC's notice of substitution was appropriate
under the circumstances. The fact that the FDIC has become a party
to the case is sufficient for removal. This court stated this
proposition clearly in 1992. See F.D.I.C. v. Cabral, 989 F.2d
525, 526 (1st Cir. 1992) ("Section 1819(b)(2)(B) authorizes
removal by the FDIC whenever it is a party."); see also Castleberry
v. Goldome Credit Corp., 408 F.3d 773, 784 (11th Cir. 2005) ("[T]he
plain language of § 1819 requires that the action be 'filed'; it
does not require that an action be properly filed."); Mizuna, Ltd.
v. Crossland Fed. Sav. Bank, 90 F.3d 650, 655 (2d Cir. 1996) ("12
U.S.C. § 1819(b)(2)(B) . . . provides for removal solely by virtue
of the fact that the FDIC is a party.").
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The parties to the state court case immediately prior to
the FDIC's substitution of itself for Doral were Doral, Japimel,
and Mapfre. The FDIC succeeded to "all rights, titles, powers,
and privileges" of Doral when it became Doral's receiver. 12
U.S.C. § 1821(d)(2)(A). The Court of First Instance never
substituted Bautista for Doral. Doral was still a party when the
FDIC filed its notice of substitution in the Court of First
Instance on February 22, 2018.
Contrary to Japimel's argument that the FDIC cannot be
a party because it sold Doral's loan to Bautista, the FDIC
immediately became a party when it filed its notice of
substitution. See F.D.I.C. v. N. Savannah Properties, LLC, 686
F.3d 1254, 1260 (11th Cir. 2012) ("[T]he FDIC is automatically
substituted for the failed institution as a matter of federal law
the moment that it files a notice of substitution in court.");
Allen v. F.D.I.C., 710 F.3d 978, 982 (9th Cir. 2013) ("Substitution
of the FDIC for a failed bank is essentially a ministerial matter
. . . . The FDIC is appointed receiver when a bank has failed and
the FDIC, upon substitution, immediately becomes the real party in
interest."). As a party, the FDIC could remove the case to federal
court under § 1819(b)(2)(B). The district court erred by ignoring
§ 1819(b)(2)(B)'s clear language and remanding the case to the
Court of First Instance.
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III.
Reversed. We remand for further proceedings, including
the resolution of the FDIC's motion to dismiss. Costs are awarded
to the FDIC.
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