Opinion
CIVIL ACTION NO: 11-2202
10-28-2011
FIRST BANK & TRUST v. CAMBRIDGE RENTAL PROPERTIES, L.L.C.
ORDER AND REASONS
IT IS HEREBY ORDERED that First Bank & Trust's ("FBT") Motion to Remand to State Court (Doc. #6) is GRANTED, and this matter is REMANDED to the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana.
This executory proceeding was brought in state court by FBT in connection with a collateral mortgage executed by defendant, Cambridge Rental Properties, L.L.C. "Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law." La. CODE CIV. PRO. Art. 2631.
"The Federal Rules of Civil Procedure were designed for ordinary, plenary civil actions." Wright & Miller, Federal Practice and Procedure: Civil 3d § 1026. Under Louisiana law, executory proceedings bypass FED. R. CIV. P. 3, 4, and 12 which require filing a complaint, service on the defendant, and allow a defendant to answer a complaint. Executory proceedings are "predicated on state law" and the Federal Rules of Civil Procedure do not provide a basis to commence nor prosecute an executory proceeding. Midsouth Bank, N.A. v. McZeal, 2011 WL 2173655, *1 (W.D. La. 6/1/11); see First Bank & Trust v. Swope, 2008 WL 4059860, *2 (E.D. La. 8/25/08).
Because this is an executory proceeding, this court does not have jurisdiction. Therefore, FBT's motion to remand to the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana, is GRANTED.
New Orleans, Louisiana, this 28th day of October, 2011.
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE