Federal Deposit Insurance v. Kahlil Zoom-In Markets, Inc.

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.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________

(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.

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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.

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