Rosciti Construction, Inc. v. Lot 10 of East Greenwich Town Assessor's Plat 14

754 F. Supp. 14, 1991 U.S. Dist. LEXIS 653, 1991 WL 3285
CourtDistrict Court, D. Rhode Island
DecidedJanuary 17, 1991
DocketCiv. A. No. 90-0300 L
StatusPublished
Cited by1 cases

This text of 754 F. Supp. 14 (Rosciti Construction, Inc. v. Lot 10 of East Greenwich Town Assessor's Plat 14) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosciti Construction, Inc. v. Lot 10 of East Greenwich Town Assessor's Plat 14, 754 F. Supp. 14, 1991 U.S. Dist. LEXIS 653, 1991 WL 3285 (D.R.I. 1991).

Opinion

MEMORANDUM AND ORDER

LAGUEUX, District Judge.

This matter is before the Court on the petition of Rosciti Construction, Inc. (“Rosciti Construction”), to overrule the removal of this action from Rhode Island Superior Court to the United States District Court. This is, essentially, a motion to remand, pursuant to 28 U.S.C. § 1447(c), and the Court will treat it as such. The underlying action is for the enforcement of a mechanic’s lien, brought by Rosciti Construction against the East Greenwich, Rhode Island, property where the work allegedly took place, and against the property owners, Michael Cinquegrano and Anthony J. Regine. The suit was removed by the National Credit Union Administration Board (“NCUA”), after it became a party to the suit and filed notice of its claim on the property.

BACKGROUND

On May 8, 1990, Rosciti Construction filed a petition for enforcement of a mechanic’s lien in the Rhode Island Superior Court for the County of Kent (K.M. No. 90-538). Notice of the filing of this petition was sent to NCUA on May 11, 1990. [16]*16Under the mechanic’s lien statute, R.I.Gen. Laws § 34-28-14 (1956), notice must be sent to “all persons who have any title, claim, lease, mortgage, attachment or other lien or encumbrance to or in the property which is the subject matter of such petition.” This description includes NCUA because, since November 15, 1989, it has served as conservator for the Fairlawn Credit Union, which holds a mortgage on the property. NCUA entered its appearance in the mechanic’s lien action and filed a claim on June 20, 1990. One day later, on June 21, 1990, NCUA filed a notice of removal. Rosciti Construction filed the instant remand petition on August 30, 1990.

DISCUSSION

Pursuant to 28 U.S.C. § 1447(c), the Court may grant a motion to remand if it finds it lacks subject matter jurisdiction over the suit, or if removal was procedurally defective.1 Rosciti Construction’s objections to removal fall into both categories: procedural and jurisdictional. The Court will address the procedural objections first.

Rosciti Construction asserts that NCUA’s removal notice is inadequate under the removal statute, 28 U.S.C. § 1446(a), which requires “a short and plain statement of the grounds for removal.” NCUA has submitted a three-page document, setting out succinctly its claim on the property as conservator for Fair-lawn Credit Union, as well as its removal powers under 12 U.S.C. § 1789(a)(2), the section of the Federal Credit Union Act that confers upon NCUA power to act in such matters. The Court finds the removal notice is more than adequate to satisfy the requirements of § 1446(a).

Second, Rosciti Construction claims that NCUA’s removal notice was not timely filed as required by 28 U.S.C. § 1446(b)2, because it was not filed within thirty days of NCUA’s receipt of the notice of the mechanic’s lien petition. In Federal Deposit Ins. Corp. v. Otero, the First Circuit Court of Appeals found that the time limit in § 1446(b) was not triggered until the FDIC actually became a party to the suit:

We reject as frivolous appellant’s claim that the removal petition was untimely under 28 U.S.C. § 1446(b). Although ap-pellees had notice of the assignment of the notes to the FDIC in November 1977, the case was not “removable” within the meaning of the statute until the FDIC actually intervened in February 1978. The petition for removal was timely filed within 30 days of the FDIC’s intervention.

598 F.2d 627, 633 n. 7 (1979). Because the FDIC has jurisdictional powers to intervene and remove virtually identical to those of NCUA, the Court may analogize that, in the present matter, the statute did not begin to toll until NCUA became a party to the action on June 20, 1990. Its entry as a party was timely under the mechanic’s lien statute, R.I.Gen.Laws § 34-28-16, and its removal notice, filed the day after the suit became “removable,” was timely as well.

Moreover, as to Rosciti Construction’s procedural objections, the Court finds that they are moot because Rosciti Construction missed the time limit for filing its motion to remand, which constitutes a waiver of its objections to NCUA’s removal procedures. Title 28 U.S.C. § 1447(c) requires that a motion to remand [17]*17based on a defect in removal procedure be made "within 30 days after the filing of the notice of removal under section 1446(a)." Here, NCUA filed its notice of removal on June 21, 1990. Rosciti Construction did not file the motion to remand until August 30, 1990, some seventy days later, and thus has waived its right to make procedural objections.

Section 1447(c), however, as well as Federal Rule of Civil Procedure 12(b)(1), both permit Rosciti Construction to raise an objection concerning the Court's subject matter jurisdiction after the 30-day time limit has expired. It is to subject matter jurisdiction that the Court will now turn its attention.

NCUA receives its broad grant to invoke federal court subject matter jurisdiction from two sources. Because NCUA is a federal agency 3, 28 U.S.C. § 1345 provides federal court jurisdiction for all suits it initiates:

Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

The Federal Credit Union Act, which created NCUA, also authorizes NCUA to remove to federal court any suit to which it is a party. The Act, specifically 12 U.S.C. § 1789(a)(2), provides in part:

(a) In carrying out the purposes of this subchapter, the Board may-
(2) sue and be sued, complain and defend, in any court of law or equity, State or Federal. All suits of a civil nature at common law or in equity to which the Board shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

ASG Employees Federal Credit Union v. Gurr
26 Am. Samoa 2d 87 (High Court of American Samoa, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
754 F. Supp. 14, 1991 U.S. Dist. LEXIS 653, 1991 WL 3285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosciti-construction-inc-v-lot-10-of-east-greenwich-town-assessors-plat-rid-1991.