IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-1339
Summary Calendar
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FEDERAL DEPOSIT INSURANCE CORPORATION,
As Successor in Interest to, o/b/o
NCNB Texas National Bank,
Plaintiff-Appellee,
VERSUS
KAHLIL ZOOM-IN MARKETS, INC., et al.,
Defendants,
KAHLIL ZOOM-IN MARKETS, INC.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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(November 13, 1992)
Before JONES, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
We clarify today, in light of our recent holding in Federal
Deposit Insurance Corp. v. Meyerland Co. (In re Meyerland Co.),
960 F.2d 512 (5th Cir. 1992) (en banc), the question of the ju-
risdiction of a federal court of appeals where a matter has been
removed to federal district court while appeal is pending in a
state court of appeals. Concluding that in the instant case we
are without jurisdiction in the absence of a final judgment en-
tered by the federal district court, we vacate and remand.
I.
NCNB Texas National Bank ("NCNB") brought suit against Donal
J. Delp and the instant appellant, Kahlil Zoom-In Markets, Inc.
("Kahlil"), for enforcement and collection of promissory notes
and for foreclosure of a lien against property. NCNB had
acquired the notes from the Federal Deposit Insurance Corporation
("FDIC") as receiver for First RepublicBank Fort Worth, N.A.,
following the failure of the bank that previously had owned the
notes; NCNB later assigned the notes to the FDIC in its corporate
capacity ("FDIC/Corporate").
The state trial court entered summary judgment in favor of
FDIC/Corporate, and Kahlil filed notice of appeal in state court.
FDIC/Corporate then removed the matter to federal district court
pursuant to 12 U.S.C. § 1819(b)(2)(A) and (B), the same removal
provision utilized in Meyerland. See Meyerland, 960 F.2d at 514.
A few days later, Kahlil filed a notice of appeal to this court,
seeking review of the state trial court's summary judgment and
four of its orders. Again within a few days, Kahlil filed in the
district court a motion to transfer the action to this court
pursuant to 28 U.S.C. § 1631.1 The district court promptly
1
Section 1631 reads as follows:
Transfer to cure want of jurisdiction
Whenever a civil action is filed in a court as defined in
section 610 of this title or an appeal, including a petition for
review of administrative action, is noticed for or filed with such
a court and that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice, transfer
such action or appeal to any other such court in which the action
or appeal could have been brought at the time it was filed or
(continued...)
2
granted the motion to transfer and, without entering a judgment
of any kind, directed the clerk of court to close the proceeding
and transmit the records to this court.
II.
This court plainly does not have jurisdiction stemming from
a purported transfer pursuant to section 1631. By its very
terms, that section may be utilized only for a transfer from a
court that lacks jurisdiction. But in light of Meyerland, it is
uncontrovertible that the federal district court had jurisdiction
once the removal petition was filed. See Meyerland, 960 F.2d at
515-20. Specifically, as we noted in Meyerland, id. at 514-15,
section 1819(b)(2)(B) provides that removal pursuant thereto is
to "'the appropriate United States district court.'" (Emphasis
added in Meyerland, footnote omitted.)
III.
We also conclude that in the absence of a final, appealable
judgment from the district court, we are without jurisdiction.
As we have reasoned that the transfer order entered pursuant to
section 1631 cannot suffice, we must look to some other order or
pleading that confers appellate jurisdiction; we find none.
It is true that before the transfer order was entered,
1
(...continued)
noticed, and the action or appeal shall proceed as if it had been
filed in or noticed for the court to which it is transferred on
the date upon which it was actually filed in or noticed for the
court from which it is transferred.
3
Kahlil filed a notice of appeal. That notice, however, cannot
divest the district court of jurisdiction and confer jurisdiction
on this court without the existence of an appealable order from
the district court.
A proper course for the district court to take under these
circumstances is set forth in 5300 Memorial Investors, Ltd. v.
RTC (In re 5300 Memorial Investors, Ltd.), 973 F.2d 1160 (5th
Cir. 1992). There, we held that the district court "correctly
entered the state court's judgment as its own, complying with the
requirement set forth in Granny Goose Foods [v. Brotherhood of
Teamsters, Local No. 70, 415 U.S. 423, 435-36 (1974)]. Accord
Walker v. FDIC, 970 F.2d 114, 121 & n.12 (5th Cir. 1992)." Id.
at 1163.2
Thus, we conclude that we are without jurisdiction. The
district court's transfer order is VACATED, and this matter is
REMANDED to the federal district court for entry of a final,
appealable judgment.
2
In First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119
(5th Cir. 1992), decided before Meyerland, we noted that Fed. R. Civ. P. 60(b)
"was the appropriate mechanism for challenging the state court judgment once
it was removed to the federal district court." (Citations omitted.) We
concluded that we have "no jurisdiction to entertain an appeal until the
district court has issued a final or otherwise appealable order [, and t]hat
order, in a case which has been removed to federal court following the entry
of judgment in state court, will be one resolving a timely filed Rule 60(b)
motion . . . . The intervenors could not have perfected an appeal from the
state court judgment until they filed a timely Rule 60(b) motion." Id. at
119-20.
Meyerland, as an en banc case, supplants the statements in First
RepublicBank that a rule 60(b) motion is the means to effect an appeal upon
removal. As in 5300 Memorial, the district court may adopt the state court's
judgment as its own, whereupon the federal district court's judgment becomes
appealable.
4