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Federal Deposit Insurance Corp. v. Greenberg

decided: November 6, 1973.

FEDERAL DEPOSIT INSURANCE CORPORATION, A FEDERAL CORPORATION, APPELLANT,
v.
NATHAN GREENBERG, APPELLEE



(D.C. Civil Action No. 70-2884). APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Staley, Gibbons and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge

This appeal involves a narrow question of procedural law: whether Federal Rule of Civil Procedure 4(e)(2), providing for service in quasi-in-rem actions, requires compliance with the rule of venue applied in Pennsylvania attachment proceedings. We hold that it does not.

Appellant Federal Deposit Insurance Corporation (FDIC) instituted this action against appellee Nathan Greenberg, a Massachusetts resident, to set aside the transfer of real property and capital stock from appellant's debtor (Martin Decker) to appellee.*fn1 Subject matter jurisdiction of this action is vested in the District Court pursuant to 12 U.S.C. ยง 1819.

In order to obtain quasi-in-rem jurisdiction below, FDIC caused a Writ of Foreign Attachment to issue against (1) three tracts of real estate in Montgomery County, Pennsylvania (referred to as One, Two, and Three Decker Square), (2) one tract of land in Philadelphia County, and (3) 500 shares of the capital stock of Decreal Corporation.*fn2 Pursuant to a pretrial motion by appellee (Greenberg), the District Court for the Eastern District of Pennsylvania (wherein this action was brought), sitting in Philadelphia County, vacated the attachments of the Montgomery County realty and the capital stock, 52 F.R.D. 240. FDIC appeals from the order vacating both attachments.*fn3

I. Attachment of the Realty

The District Court predicated its order on the "borrowing" provision of Fed. R. Civ. P. 4(e)(2) and on its (the Court's) interpretation of Pennsylvania foreign attachment procedure. With regard to quasi-in-rem actions originating in the federal courts, Rule 4(e) provides:

Whenever a statute or rule of court of the state in which the district court is held provides . . . (2) for service upon or notice to [a party not an inhabitant of or found within the state] to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the property located within the state, service . . . may be made under the circumstances and in the manner prescribed in the statute or rule.

The writ of attachment for One, Two, and Three Decker Square (Montgomery County) was issued in Philadelphia, there being no place within Montgomery County wherein federal district court is held.*fn4 The District Court found that this procedure did not comply with Pennsylvania foreign attachment law.*fn5 Specifically, the Court vacated the attachment of the Montgomery County property on the ground that the writ was issued against property located in a county other than the county in which the Court sits, violating Pennsylvania Rule 1254. This rule provides:

"Venue.

(a) An attachment against personal property of the defendant may be issued in and ...


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