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ULLAH v. FDIC

May 9, 1994

AHSAN ULLAH, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiff Ahsan Ullah, a customer of the former Dollar Dry Dock Bank, later taken over by the FDIC, brought suit in the Civil Court of the City of New York, Queens County in March, 1994 for "failure to return legal expenses in connection with approval of loans due to Bank's fault." Queens falls within the Eastern District of New York.

 On April 8, 1994 the FDIC removed plaintiff's suit to the United States District Court for the Southern District of New York, where the bank had been located. The bank involved had its principal place of business in this district, thus permitting suit to have been filed here under 12 USC 1821(d)(6)(A).

 II

 The statute setting forth criteria and procedures for removal of state court suits to federal district courts (28 USC 1441) provides:

 
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the division embracing the place where such action is pending . . . .

 This general removal statute makes no reference to the propriety or impropriety of venue in the district to which a state court suit is removed.

 Removal may proceed regardless of venue considerations, which may be addressed after removal under 28 USC 1441(a) is accomplished. Improper venue is not a jurisdictional defect, but can be waived by failure to assert it, as provided in Fed.R.Civ.P. 12(b) and 12(h)(1). It can also be corrected by transfer under 28 USC 1406, or by a transfer for convenience under 28 USC 1404(a).

 A more specific statute, 12 USC 1819(b)(2)(B), permits the FDIC to remove cases involving it "to the appropriate United States district court". The term "appropriate" leaves the determination of the district to which removal may be made to other sources of law. The question presented here is whether the term "appropriate" authorizes the FDIC to remove a private state court action to any district in which venue may be proper.

 III

 It would be difficult to read the FDIC removal provision in Title 12 (12 USC 1819) as displacing the procedures of the general removal statute (28 USC 1441[a]). The Title 12 section does not "expressly" provide for any departure from the general removal statute, merely authorizing removal to the "appropriate" court, which must thus be determined by resort to generally applicable law. The distinction between 28 USC 1441 with its explicit statement of the courts to which cases are to be removed, and the Title 12 section should hardly be treated ...


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