The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Donald and Wendy Buczkowski have filed a motion for
remand pursuant to 28 U.S.C. § 1447, which is now before this
court. For the reasons set forth below, the motion is granted,
and the case is remanded to the Circuit Court of Cook County.
A. Early Litigation of the State Court Case
In April 1999, plaintiffs filed a negligence action against
Elaine Oliva and Dollar Rent A Car System, Inc. ("Dollar") in the
Circuit Court of Cook County for alleged injuries resulting from
a March 1998 motor vehicle collision between Oliva and Donald
Buczkowski. Plaintiffs allege that Oliva struck Buczkowski on his
motorcycle while she was driving an automobile rented to her by
In March 2000, plaintiffs added an additional count alleging
respondeat superior against Superior Bank, FSB ("Superior"), Oliva's employer on the date of
the collision. The parties litigated the case for more than four
years and completed discovery.
In November 2003, the court dismissed Dollar from the case on a
motion for summary judgment. The case was assigned out for trial
on November 12, 2003.
B. The FDIC's July 2001 Appointment As Receiver for Superior
and the November 2003 Notice to Plaintiffs of the Same
In late October 2003, counsel for Oliva and Superior told
plaintiffs' counsel that Superior might no longer exist because
of bankruptcy or liquidation. On November 12, 2003, the date on
which the trial was scheduled to begin, Superior's counsel
informed the court and plaintiffs' counsel that Superior had
indeed been liquidated and the Federal Deposit Insurance
Corporation ("the FDIC") appointed as its Receiver. The court
continued the case to November 26, 2003 and ordered defense
counsel to report back at that time as to Superior's status.
On November 18, 2003, the FDIC sent a letter to plaintiffs'
counsel informing him that the FDIC had been appointed as
Receiver for Superior nearly two and a half years earlier, on
July 27, 2001. In fact, by an Order issued on that date, the
Director of the Office of Thrift Supervision ("OTS"), in
connection with the FDIC, had determined that the FDIC would
serve as Superior's Receiver. By a letter dated the same day
(July 27, 2001), the FDIC had accepted the appointment and
thereby succeeded to all rights, titles, powers and privileges of
Superior pursuant to 12 U.S.C. § 1821(c)(3)(A).
In its November 18, 2003 letter, the FDIC also represented that
it had first learned of the existence of the Buczkowskis' lawsuit
only the previous week. Pl. Exh. B. The FDIC has maintained that
position in its briefing on plaintiffs' instant motion for
remand On November 18, 2003, the FDIC also sent a letter to plaintiffs notifying
them of the requirement that they submit a Proof of Claim Form
and accompanying documentation to the FDIC in the event that they
had claims against Superior. Id.
C. Plaintiffs' Filing of Administrative Claims with the FDIC
and Related Communications
After being informed on November 18, 2003 of the FDIC's July
2001 appointment as Receiver for Superior, plaintiffs
subsequently filed administrative claims with the FDIC on
December 10, 2003. See 12 U.S.C. § 1821(d)(3)-(13)
(establishing claims procedure for all claims asserted against
the assets of a failed financial institution). On that date, they
also submitted an additional proposed agreement by which any
recovery in the case would be limited to an amount within
Superior's liability insurance policy limits ($25,000,000).
Plaintiffs also offered to provide the FDIC with a ...