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BUCZKOWSKI v. OLIVA

July 14, 2004.

DONALD BUCZKOWSKI and WENDY BUCZKOWSKI, Plaintiffs,
v.
ELAINE OLIVA AND SUPERIOR BANK FSB, Defendants.



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.

I. Background*fn1

  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 Dollar.

  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 ...


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