NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAUL FEINSTEIN, No. 24-5823 D.C. No. Plaintiff-ctr-defendant - 2:23-cv-03674-GW-AJR Appellant,
v. MEMORANDUM*
FIRST REPUBLIC SECURITIES COMPANY, LLC; FIRST REPUBLIC INVESTMENT MANAGEMENT, INC.,
Defendant-ctr-claimants - Appellees,
FIRST REPUBLIC BANK,
Counter-claimant - Appellee.
PAUL FEINSTEIN, No. 24-7839 Plaintiff-ctr-defendant - D.C. No. Appellant, 2:23-cv-03674-GW-AJR
v.
FIRST REPUBLIC SECURITIES COMPANY, LLC; FIRST REPUBLIC INVESTMENT MANAGEMENT, INC.,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-ctr-claimants - Appellees,
Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding
Argued and Submitted October 22, 2025 Pasadena, California
Before: R. NELSON and VANDYKE, Circuit Judges, and COLE, District Judge.**
Plaintiff–Appellant Paul Feinstein appeals a district court order denying his
motion to remand to arbitration, denying his alternative motion to compel
arbitration, and transferring the dispute to the Northern District of California. We
have jurisdiction over the portion of the order denying the motion to remand as a
certified question for interlocutory appeal under 28 U.S.C. § 1292(b), and
jurisdiction over the portion of the order denying the motion to compel arbitration
under 9 U.S.C. § 16(a)(1). Reviewing de novo, see Kamm v. ITEX Corp., 568 F.3d
752, 754 (9th Cir. 2009); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th
Cir. 2017), we affirm in part, vacate in part, and remand.
1. We affirm the district court’s order denying the motion to remand and
** The Honorable Douglas Russell Cole, United States District Judge for the Southern District of Ohio, sitting by designation.
2 transferring the case to the Northern District of California. A motion to remand
under 28 U.S.C. § 1447(c) may assert either a jurisdictional or procedural defect.
See Kamm, 568 F.3d at 754. If at any point the district court discovers a
jurisdictional defect, it “shall” remand the removed case to state court. See Int’l
Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991)
(emphasis removed). The district court properly found that it lacked jurisdiction
over Feinstein’s claims against the Federal Deposit Insurance Corporation (FDIC)
under 12 U.S.C. § 1821(d)(6)(A)(ii). See MTB Enters., Inc. v. ADC Venture 2011-
2, LLC, 780 F.3d 1256, 1259 (9th Cir. 2015). But the district court cured that defect
by transferring the case to the Northern District of California under 28 U.S.C.
§ 1631.
A plaintiff must move to remand based on a procedural error within 30 days
of a defendant’s removal. 28 U.S.C. § 1447(c). Feinstein filed his motion after the
30-day window had elapsed, but the district court still held that it could extend the
deadline under Federal Rule of Civil Procedure 6(b)(1)(B). But that rule does not
allow the district court to enlarge “time periods set out in statutes.” 4B Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1165 (4th ed. 2025). As
Feinstein moved to remand after this 30-day deadline expired, the district court had
no authority to grant the motion, and thus properly denied it. N. Cal. Dist. Council
3 of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995).1
2. We also affirm the district court’s order denying Feinstein’s motion to
compel arbitration with the FDIC, as receiver to First Republic Bank. The duty to
arbitrate arises from contract. E.g., CVS Health Corp. v. Vividus, LLC, 878 F.3d
703, 706, 708 n.1 (9th Cir. 2017). Feinstein and First Republic agreed to “arbitration
in accordance with the FINRA Bylaws.” Read in context, this submission agreement
consolidated and modified all previous agreements between the parties to submit to
arbitration. On September 20, 2023, the FDIC sent a letter to FINRA repudiating
the agreement “under 12 U.S.C. Section 1821(e).”
Feinstein claims he should have received actual, rather than constructive,
notice of the repudiation. But our caselaw does not require the FDIC to provide
actual notice. See Sharpe v. FDIC, 126 F.3d 1147, 1157 (9th Cir. 1997).
3. We vacate the district court’s order denying the motion to compel
arbitration with First Republic Securities Company LLC (FRSC) and First Republic
Investment Management, Inc. (FRIM, and together with FRSC, the Subsidiaries).
The Subsidiaries advance two arguments as to why they have no duty to arbitrate,
neither of which we can evaluate on this record.
1 We also affirm the district court’s denial of attorney’s fees. See Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1066 (9th Cir. 2008) (holding attorney’s fees are appropriate only when “the relevant case law clearly foreclosed the defendant’s basis of removal”).
4 First, the Subsidiaries argue that 12 U.S.C. § 1821(d)(13)(D) strips the
arbitration proceeding of jurisdiction over their counterclaims. In general,
§ 1821(d)(13)(D) does not bar jurisdiction over counterclaims. See Resol. Tr. Corp.
v. Midwest Fed. Sav. Bank of Minot, 36 F.3d 785, 793 (9th Cir. 1993). Our cases
establish, however, that certain affirmative defenses to counterclaims—such as the
affirmative defense of offset—may be “a determination of rights with respect to[]
the assets of any depository institution for which the Corporation has been appointed
receiver.” 12 U.S.C. § 1821(d)(13)(D); see also McCarthy v. FDIC, 348 F.3d 1075,
1079 (9th Cir. 2003).
Second, the Subsidiaries argue that the FDIC repudiated the agreement to
arbitrate “all claims brought by all parties, including third parties.” The FDIC’s
repudiation letter states: “This repudiation shall only affect the obligation of the
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 26 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAUL FEINSTEIN, No. 24-5823 D.C. No. Plaintiff-ctr-defendant - 2:23-cv-03674-GW-AJR Appellant,
v. MEMORANDUM*
FIRST REPUBLIC SECURITIES COMPANY, LLC; FIRST REPUBLIC INVESTMENT MANAGEMENT, INC.,
Defendant-ctr-claimants - Appellees,
FIRST REPUBLIC BANK,
Counter-claimant - Appellee.
PAUL FEINSTEIN, No. 24-7839 Plaintiff-ctr-defendant - D.C. No. Appellant, 2:23-cv-03674-GW-AJR
v.
FIRST REPUBLIC SECURITIES COMPANY, LLC; FIRST REPUBLIC INVESTMENT MANAGEMENT, INC.,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-ctr-claimants - Appellees,
Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding
Argued and Submitted October 22, 2025 Pasadena, California
Before: R. NELSON and VANDYKE, Circuit Judges, and COLE, District Judge.**
Plaintiff–Appellant Paul Feinstein appeals a district court order denying his
motion to remand to arbitration, denying his alternative motion to compel
arbitration, and transferring the dispute to the Northern District of California. We
have jurisdiction over the portion of the order denying the motion to remand as a
certified question for interlocutory appeal under 28 U.S.C. § 1292(b), and
jurisdiction over the portion of the order denying the motion to compel arbitration
under 9 U.S.C. § 16(a)(1). Reviewing de novo, see Kamm v. ITEX Corp., 568 F.3d
752, 754 (9th Cir. 2009); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th
Cir. 2017), we affirm in part, vacate in part, and remand.
1. We affirm the district court’s order denying the motion to remand and
** The Honorable Douglas Russell Cole, United States District Judge for the Southern District of Ohio, sitting by designation.
2 transferring the case to the Northern District of California. A motion to remand
under 28 U.S.C. § 1447(c) may assert either a jurisdictional or procedural defect.
See Kamm, 568 F.3d at 754. If at any point the district court discovers a
jurisdictional defect, it “shall” remand the removed case to state court. See Int’l
Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991)
(emphasis removed). The district court properly found that it lacked jurisdiction
over Feinstein’s claims against the Federal Deposit Insurance Corporation (FDIC)
under 12 U.S.C. § 1821(d)(6)(A)(ii). See MTB Enters., Inc. v. ADC Venture 2011-
2, LLC, 780 F.3d 1256, 1259 (9th Cir. 2015). But the district court cured that defect
by transferring the case to the Northern District of California under 28 U.S.C.
§ 1631.
A plaintiff must move to remand based on a procedural error within 30 days
of a defendant’s removal. 28 U.S.C. § 1447(c). Feinstein filed his motion after the
30-day window had elapsed, but the district court still held that it could extend the
deadline under Federal Rule of Civil Procedure 6(b)(1)(B). But that rule does not
allow the district court to enlarge “time periods set out in statutes.” 4B Charles Alan
Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1165 (4th ed. 2025). As
Feinstein moved to remand after this 30-day deadline expired, the district court had
no authority to grant the motion, and thus properly denied it. N. Cal. Dist. Council
3 of Laborers v. Pittsburg-Des Moines Steel Co., 69 F.3d 1034, 1038 (9th Cir. 1995).1
2. We also affirm the district court’s order denying Feinstein’s motion to
compel arbitration with the FDIC, as receiver to First Republic Bank. The duty to
arbitrate arises from contract. E.g., CVS Health Corp. v. Vividus, LLC, 878 F.3d
703, 706, 708 n.1 (9th Cir. 2017). Feinstein and First Republic agreed to “arbitration
in accordance with the FINRA Bylaws.” Read in context, this submission agreement
consolidated and modified all previous agreements between the parties to submit to
arbitration. On September 20, 2023, the FDIC sent a letter to FINRA repudiating
the agreement “under 12 U.S.C. Section 1821(e).”
Feinstein claims he should have received actual, rather than constructive,
notice of the repudiation. But our caselaw does not require the FDIC to provide
actual notice. See Sharpe v. FDIC, 126 F.3d 1147, 1157 (9th Cir. 1997).
3. We vacate the district court’s order denying the motion to compel
arbitration with First Republic Securities Company LLC (FRSC) and First Republic
Investment Management, Inc. (FRIM, and together with FRSC, the Subsidiaries).
The Subsidiaries advance two arguments as to why they have no duty to arbitrate,
neither of which we can evaluate on this record.
1 We also affirm the district court’s denial of attorney’s fees. See Lussier v. Dollar Tree Stores, Inc., 518 F.3d 1062, 1066 (9th Cir. 2008) (holding attorney’s fees are appropriate only when “the relevant case law clearly foreclosed the defendant’s basis of removal”).
4 First, the Subsidiaries argue that 12 U.S.C. § 1821(d)(13)(D) strips the
arbitration proceeding of jurisdiction over their counterclaims. In general,
§ 1821(d)(13)(D) does not bar jurisdiction over counterclaims. See Resol. Tr. Corp.
v. Midwest Fed. Sav. Bank of Minot, 36 F.3d 785, 793 (9th Cir. 1993). Our cases
establish, however, that certain affirmative defenses to counterclaims—such as the
affirmative defense of offset—may be “a determination of rights with respect to[]
the assets of any depository institution for which the Corporation has been appointed
receiver.” 12 U.S.C. § 1821(d)(13)(D); see also McCarthy v. FDIC, 348 F.3d 1075,
1079 (9th Cir. 2003).
Second, the Subsidiaries argue that the FDIC repudiated the agreement to
arbitrate “all claims brought by all parties, including third parties.” The FDIC’s
repudiation letter states: “This repudiation shall only affect the obligation of the
Institution or the Receiver, and it is not a repudiation on behalf of other parties, if
any, to the Agreement.” On its face, this appears to exclude the Subsidiaries. The
letter repudiates, however, “the Agreement to the full extent . . . it represents an
enforceable obligation of the Institution or of the Receiver.” Some of Feinstein’s
affirmative defenses may impose an obligation against the FDIC.
We cannot evaluate any of Feinstein’s affirmative defenses now. The district
court expressly declined “to determine whether or not FIRREA applies to Plaintiff’s
affirmative defenses outside of his offset defense.” Thus, we vacate the order and
5 remand for the district court to develop the record further. On remand and after
transfer, the Northern District of California should determine in the first instance
whether any of Feinstein’s affirmative defenses are (1) “a determination of rights
with respect to[] the assets” of First Republic Bank under § 1821(d)(13)(D), or
(2) “an enforceable obligation of the Institution or of the Receiver” under the
September 20 letter. If they are not, the Northern District should compel arbitration.
If they fall within the scope of § 1821(d)(13)(D) or the September 20 letter, the
Northern District should determine whether it can compel arbitration under
§ 1821(b)(6)(A) or any other provision of the September 20 letter. We do not
express any views on these questions in the first instance.
AFFIRMED IN PART, VACATED IN PART, REMANDED.