Steven McCoy v. USA

1The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3575
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Bohumir Marik, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Buckeye Retirement Co., L.L.C., Ltd., * [UNPUBLISHED]
*
Appellee. *
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Submitted: July 27, 2001
Filed: August 2, 2001
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Before WOLLMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and BYE, Circuit
Judges.
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PER CURIAM.
Bohumir Marik appeals the district court’s1 dismissal of his claims against the
Federal Deposit Insurance Corporation (FDIC), and the court’s subsequent dismissal
of his claims against MNSB Properties, Inc. (“MNSB”), in Marik’s quiet title action

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2While this appeal was pending, Buckeye Retirement Co., L.L.C., Ltd., was
granted leave to be substituted as appellee for FDIC and MNSB.
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removed from state court.2 He also moves for judicial notice of certain court orders in
a prior related action.
Having thoroughly reviewed the record, we agree with the district court that
Marik’s claims are subject to 12 U.S.C. § 1821(d), a provision of the Financial
Institutions Reform, Recovery & Enforcement Act of 1989 (FIRREA), which provides
mandatory administrative remedies against subject failed financial institutions and bars
courts from considering unexhausted claims. Marik’s suit is grounded in the pre-
receivership conduct of Metro North State Bank, a failed financial institution within the
meaning of 12 U.S.C. § 1821(d)(13)(D)(ii), for which FDIC was appointed receiver.
It is undisputed that Marik did not exhaust his administrative remedies. We agree with
the district court, therefore, that dismissal of FDIC without prejudice was required. See
Resolution Trust Corp. Mortgage Trust 1994-N2 v. Haith, 133 F.3d 574, 578-80 (8th
Cir. 1998).
We also conclude that the district court did not abuse its discretion in dismissing
defendant MNSB: after this lawsuit was filed, MNSB assigned to FDIC all of MNSB’s
interests in the property that is the subject of this suit. See Fed. R. Civ. P. 25 (c). We
clarify that MNSB’s dismissal also is without prejudice.
Accordingly, we grant Marik’s motion on appeal, but we affirm the district
court’s orders and judgment. See 8th Cir. R. 47B.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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