case. This issue need not be reached, however, because regardless of which provision applies, the case must be remanded. If the amended statute applies, the case must be remanded because the the RTC did not remove the case within ninety days of informing the state court of its appointment as receiver for defendants. If the unamended statute applies, the case must also be remanded because the RTC did not remove the case within ninety days of its appointment as receiver.
A. The Amended Statute
The RTC's December 31, 1990, motion for substitution informed the state court that the RTC was appointed receiver. By the terms of the amended statute, the RTC has ninety days to remove after filing "such other pleading informing the Court that the Corporation has been appointed . . . receiver. . . ." 12 U.S.C. § 1441a(1)(3). Because the RTC failed to remove within ninety days after making its substitution motion, this case must be remanded.
The RTC argues that the motion it filed in state court seeking substitution was not a pleading and thus did not trigger the ninety days limitations period. Technically speaking, the RTC is correct. The word pleading is usually defined to mean a complaint, answer, or reply. See Fed. R. Civ. P. 7(a); Black's Law Dictionary 1037 (5th ed. 1979). Thus, motions are not ordinarily considered pleadings. The issue of whether a motion for substitution triggers the ninety day period under the amended statute appears to be one of first impression. Because there is no authority construing the statute, this Court must undertake its own effort to discover the statute's meaning. See Tello v. McMahon, 677 F. Supp. 1436 (E.D.Cal. 1988).
It is axiomatic that in any exercise of statutory construction, a court's foremost duty is to give effect to the legislature's intent. The language of the amended statute itself makes clear that Congress did not intend the narrow meaning of the word "pleading" to be applied. Under the terms of the amended statute, the filing of the order appointing the RTC receiver or such other pleading informing the court that the RTC has been appointed receiver, triggers the ninety day period. 12 U.S.C. § 1441a(1)(3) (emphasis added). Thus, Congress included the order appointing the RTC as receiver within the term pleading. As noted above, the technical definition of pleading does not include such an order. It is evident therefore, that Congress was not using the word pleading in its strict sense.
Moreover, this Court can discern no rational reason to draw a distinction between a pleading informing the state court that the RTC was appointed receiver and a motion for substitution based on the RTC's appointment as receiver. Both filings have the effect of alerting the state court that the RTC has been appointed receiver. As such, both should trigger the ninety day limitations period. Thus, common sense dictates that this Court not construe the word pleading in its most narrow and hyper-technical sense. See First United Methodist Church v. United States Gypsum Co., 882 F.2d 862 (4th Cir. 1989) (Most fundamental guide to statutory construction is common sense). Thus, under the amended statute, because the RTC did not remove this case within ninety days after filing its substitution motion informing the state court that it was appointed receiver, this case must be remanded.
B. The Unamended Statute
Even if the unamended statute applies, this case still must be remanded to state court. The unamended statute provides that the RTC must remove the case within ninety days after it is substituted as a party in the state action. The provision is silent, however, with respect to when substitution should be deemed to occur for the purpose of triggering the ninety day limitations period. The RTC argues that the ninety day period should not begin to run until it is formally substituted in the state court action. Plaintiffs argue that the ninety day period should begin to run from the day the RTC is appointed receiver.
Although there is no relevant authority in this circuit clarifying this point, other courts have decided the issue. Most courts that have faced the issue have determined that the ninety day period begins to run from the day the RTC is appointed receiver. See Montalvo Santiago v. Resolution Trust Corp., 779 F. Supp. 632, 633-34 (D.P.R. 1991); Towns Real Estate & Appraisal v. Resolution Trust Corp., 753 F. Supp. 914 (N.D.Ala. 1991). Cf. Woburn Five Cents Sav. Bank v. Hicks Inc., 930 F.2d 965 (1st Cir. 1991) (holding that the limitation period for the FDIC to remove begins to run when the FDIC is appointed receiver).
According to these courts, to hold otherwise would be to give the RTC unfettered control over when a pending case can be removed. The removal statute vests no discretion in the state courts with respect to substituting the RTC. Rather, a state court must substitute the RTC as a party. See Montalvo Santiago v. Resolution Trust Corp., 779 F. Supp. 632, 633 (D.P.R. 1991). Thus, if the RTC must be formally substituted before the ninety day limitations period is triggered, the RTC can simply take a wait and see attitude in state court. It can delay moving for formal substitution and yet still control the litigation in state court. If its case sours in state court, the RTC could then move for formal substitution and remove to federal court. Such a result is untenable. It makes a nullity of the ninety day limitations period. This Court therefore holds that the ninety day period begins to run when the RTC is appointed receiver.
In this case the RTC was appointed receiver on November 16, 1990. It removed the case to federal court on May 27, 1992. Because the RTC failed to remove the case within 90 days of its appointment as receiver, this case must be remanded to state court under the unamended removal provision.
For the above-stated reasons, this case is hereby remanded to state court.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
April 12, 1993