* Local Rule 47.5.1 provides: "The publication of

opinions that merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the

public and burdens the legal profession." Pursuant to that Rule,

the court has determined that this opinion should not be

published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20144

_____________________

WILNA BURR,

Plaintiff-Appellant,

v.

TRANSOHIO SAVINGS BANK,

ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

December 28, 1995

Before KING, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Wilna Burr appeals the district court's order dismissing

without prejudice her slip-and-fall negligence claim against

TransOhio Savings Bank ("TransOhio"), TransOhio Federal Savings

Bank ("TransOhio Federal"), the Resolution Trust Corporation (the

"RTC") as receiver for both banks, TransCapital Financial

Corporation ("TransCapital"), and Omni Mortgage Services
2

Corporation ("Omni"). The district court, in an order devoid of

reasons, dismissed the case without prejudice. For the reasons

assigned we affirm in part and reverse and remand in part.

I. BACKGROUND

On March 13, 1992, at the Comfort Inn Greensboro (the

"Inn"), in Greensboro, North Carolina, Wilna Burr tripped and

fell headfirst down a flight of stairs, allegedly sustaining

severe and disabling injuries. At the time of Burr's accident,

TransOhio was a record titleholder to the property, having

acquired the Inn via foreclosure approximately one year earlier. 

Four months after Burr's accident, on July 10, 1992, TransOhio

was declared insolvent, the RTC was appointed as receiver for

TransOhio, and TransOhio Federal was chartered. On July 15,

1992, a notice to the creditors of TransOhio was published in THE

CLEVELAND PLAIN DEALER, specifying October 20, 1992, as the last

date to file claims against TransOhio with the RTC.

On March 14, 1994, Burr filed a lawsuit in Texas state court

against TransOhio and TransOhio Federal, and under an alter-ego

theory, against TransCapital and Omni. Claiming that the

defendants were negligent in failing to maintain safe premises at

the Inn, she sought to recover money damages for her injuries. 

The case was removed to the United States District Court for the

Southern District of Texas on April 14, 1994. On June 14, 1994,

Burr was notified by the RTC that TransOhio had been declared

insolvent, that the RTC had been appointed receiver, and that
 

2 Congress enacted FIRREA to remedy problems it perceived

in the existing regulatory scheme in the savings and loan

industry. The RTC was established by FIRREA to act as a

conservator and receiver of failed financial institutions. See

12 U.S.C. § 1441a(b)(1)(A), et seq. 

3

there was a deadline for submitting a claim against TransOhio. 

On August 12, 1994, Burr filed her Proof of Claim against

TransOhio with the RTC. On September 16, 1994, TransOhio Federal

was closed and the RTC was appointed as receiver. Burr was

notified of this closure on October 5, 1994, when the RTC

informed Burr that the deadline for her to file a claim against

TransOhio Federal was December 30, 1994. 

In a motion filed on December 6, 1994, the RTC moved the

district court to dismiss all claims against all defendants--

TransOhio, TransOhio Federal, TransCapital, and Omni. The RTC

argued that, under the Financial Institutions Reform, Recovery

and Enforcement Act of 1989 ("FIRREA"),2 the district court did

not have subject matter jurisdiction to consider claims filed

against TransOhio and TransOhio Federal until Burr had exhausted

her administrative remedies. The RTC further argued that there

was no viable cause of action against TransOhio Federal,

TransCapital, and Omni because none of these entities owned the

Inn at the time of Burr's accident--TransOhio Federal was not

even chartered until three months later. 

In a response filed December 21, 1994, Burr contended that,

rather than dismissing her pending law suit, the district court

should merely suspend it until the RTC administrative process had

run its course. As to ownership of the Inn, Burr asserted that
4

Certificates of Insurance indicated that TransCapital was at

least partially involved in its ownership, operation, or control

at the time of the accident. Burr requested that the court deny

the RTC's motion to dismiss in order to permit the parties to

conduct discovery regarding ownership of the Inn. Also on

December 21, the District Court granted the motion of the RTC--in

its capacity as receiver--to be substituted as defendant in place

of TransOhio and TransOhio Federal. Burr filed her Proof of

Claim against TransOhio Federal with the RTC, in a letter dated

December 30, 1994.

In its reply to Burr's response, filed January 5, 1995, the

RTC reiterated its subject matter jurisdiction argument, and

additionally asserted that Burr's claim failed because it had

been filed in an inappropriate venue. The district court

declined to grant Burr any of the relief she requested. Instead,

deciding that the RTC's motion to dismiss was "well taken," the

district court dismissed Burr's lawsuit in its entirety without

prejudice. This appeal followed.

II. STANDARD OF REVIEW

Dismissals for lack of subject matter jurisdiction, improper

venue, and failure to state a claim upon which relief can be

granted are premised on Federal Rules of Civil Procedure

12(b)(1), 12(b)(3), and 12(b)(6), respectively. FED. R. CIV. P.

12. The standard of review for improper venue dismissals under

Rule 12(b)(3) is a narrow one. The reviewing court reverses only
5

upon a showing of abuse of discretion. Beardon v. United States,

320 F.2d 99, 101 (5th Cir. 1963), cert. denied, 376 U.S. 922

(1964). However, we review the district court's dismissals under

Rules 12(b)(1) and 12(b)(6) de novo. See Musslewhite v. State

Bar of Texas, 32 F.3d 942, 945 (5th Cir. 1994) (noting that de

novo review is proper for 12(b)(1) dismissal), cert. denied, 115

S. Ct. 2248 (1995); Leffall v. Dallas Indep. School Dist., 28

F.3d 521, 524 (5th Cir. 1994) (noting that de novo review is

proper for 12(b)(6) dismissal). Insofar as a dismissal under

Rule 12(b)(6) is concerned, we accept the allegations of the

complaint as true, and we do not affirm the district court's

dismissal unless it appears beyond doubt that the plaintiff

cannot prove any set of facts in support of his claim which would

entitle him to relief. Benton v. United States, 960 F.2d 19, 21

(5th Cir. 1992).

III. DISCUSSION

A. Subject Matter Jurisdiction

Burr contends that the district court erred in dismissing

any of her claims for lack of subject matter jurisdiction. The

relevant date for determining whether a court has subject matter

jurisdiction is the date on which the complaint is filed. Carney

v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir. 1994). In

this case, the district court determined that, under FIRREA, it

could not obtain jurisdiction over Burr's claim because at the
 

3 FIRREA provides that the powers attributed to the FDIC

in 12 U.S.C. §§ 1821, 1822, and 1823 are applicable to the RTC. 

12 U.S.C. § 1441a(b)(4).

 

4 The "Resolution Trust Company" referred to in Meliezer

is the Resolution Trust Corporation established by 12 U.S.C. §

1441a(b)(1)(A), et seq. 

 

5 § 1821(d)(6)(A) reads in pertinent part:

Before the end of the 60-day period . . . [the claimant 

may] file suit on such claim (or continue an action 

commenced before the appointment of the receiver), in the 

district or territorial court of the United States for the 

district within which the depository institution's principal 

6

time that Burr filed her complaint the RTC already had been named

as receiver for TransOhio.

Congress created a claims determination procedure in FIRREA

that is designed to allow the RTC and the Federal Deposit

Insurance Corporation (the "FDIC")3 to deal expeditiously with

failed depository institutions. 12 U.S.C. § 1821(d)(3). After

the RTC has been named as receiver for a failed institution, a

claimant against the institution is required to present her claim

to the RTC before pursuing a judicial remedy. 12 U.S.C. §

1821(d)(3) & (5). The RTC has 180 days to determine whether to

allow or disallow the claim. Id. No court can acquire subject

matter jurisdiction over the claim until the claimant exhausts

her remedies under this accelerated administrative procedure. 12

U.S.C. § 1821(d)(13)(D); Meliezer v. Resolution Trust Co., 952

F.2d 879, 882 (5th Cir. 1992).4 However, in the event that the

RTC denies her claim or does not act on it within 180 days, the

claimant has 60 days to request administrative review or to file

suit in district court. 12 U.S.C. § 1821(d)(6)(A).5 Moreover,
place of business is located or the United States District 

Court for the District of Columbia (and such court shall 

have jurisdiction to hear such claim).

12 U.S.C. § 1821(d)(6)(A).

 

6 FIRREA provides, inter alia, that the filing of a claim

"with the receiver shall not prejudice any right of the claimant

to continue any action which was filed before the appointment of

the receiver." 12 U.S.C. § 1821(d)(5)(F)(ii) (emphasis added). 

It appears clear to us, on a careful reading of § 1821(d)(6)(A)

and the foregoing passage, that the district court continues to

have jurisdiction over claims brought before the RTC is appointed

receiver. Carney, 19 F.3d at 955-96.

7

if the district court acquired subject matter jurisdiction before

the RTC was appointed as receiver, it continues to have

jurisdiction over the claim, albeit subordinated for a time to

the administrative procedure of the RTC.6 "Courts will retain

jurisdiction over pending lawsuits--suspending, rather than

dismissing, the suits--subject to a stay of proceedings as may be

appropriate." Carney, 19 F.3d at 956 (quoting Marquis v. FDIC,

965 F.2d 1148, 1154 (1st Cir. 1992)).

In FIRREA, Congress has attempted to strike a fair balance

between the expedient resolution of claims and the protection of

creditor's interests. As we have pointed out:

Congress intended to establish a scheme for fairly 

adjudicating claims against failed financial institutions. 

It did not structure a system for the sandbagging of valid 

claims. The statute is not to be used as an easy means of 

avoiding consideration of claims on their merits. As 

demonstrated by the special provisions governing prereceivership suits, Congress had the rights of claimants in 

mind when it enacted FIRREA. RTC may not distort the 

provisions designed to facilitate the processing of claims into

a tool for subverting the right of claimants to present their

claims on the merits. 
 

7 On July 15, 1992, the RTC published notice in THE

CLEVELAND PLAIN DEALER that the bar date for filing claims

against TransOhio would be October 20, 1992. After Burr filed

suit in Texas, the RTC, in a letter dated June 14, 1994, informed

her that it had been appointed receiver and that she was required

to "present [her] claims, together with proof, to the Receiver by

August 9, 1993 [sic]." A second notification letter, dated June

23, 1994, stated that:

[a]ny claim not presented to the Receiver . . . on or 

before September 21, 1994 will be barred. . . . 

[But, n]otwithstanding the present letter, the

Receiver will not and does not extend the period for filing

claims against [TransOhio] past the Original Bar Date

[October 20, 1992] set forth in the previously published

notice.

 

8 The district court could acquire jurisdiction over

Burr's claim only after Burr had exhausted her remedies under the

RTC's accelerated administrative procedure. Apparently, while

this appeal was being pursued, the RTC denied Burr's request for

administrative relief, thereby exhausting her remedies under the

accelerated administrative procedure. Because she failed to

exercise either of her two options--to request RTC administrative

review or to file a claim in the district court--before the end

8

Whatley v. Resolution Trust Corp., 32 F.3d 905, 909-10 (5th Cir.

1994). If the RTC makes no attempt to timely communicate with a

claimant or transmits confusing and contradictory information,

the purpose of FIRREA is frustrated.7 To the extent that Burr

has conscientiously attempted to invoke the proper procedures for

asserting her claim--expending time, money, and energy in the

process, her rights should be protected. Whatley, 32 F.3d at

908-10.

It is uncontroverted that Burr filed her claim after the RTC

had been appointed receiver for TransOhio but before the RTC was

appointed receiver for TransOhio Federal. As such, the district

court was deprived of subject matter jurisdiction over the

TransOhio claim.8 Under Rule 12(b)(1), Burr's claim against
of the 60-day period following the disallowance, she has "no

further rights or remedies with respect to" her TransOhio claim. 

12 U.S.C. § 1821(d)(6)(B). 

To preserve the TransOhio claim, it was incumbent on Burr to

take some action, in addition to filing this appeal, before the

expiration of the 60-day period following the administrative

ruling because the district court did not acquire jurisdiction

over the TransOhio claim before the receivership. We agree with

those courts that have held that "12 U.S.C. § 1821(d)(6)(B)

requires some timely formal affirmative action" to prevent waiver

of a party's rights in a claim. First Union Nat. Bank v. Royal

Trust Tower, Ltd., 827 F. Supp. 1564, 1568 (S.D. Fla. 1993).

Where the original action was filed after receivership, a

judicial appeal alone would be insufficient because, as we noted

in Carney, "a claimant could not 'continue' an action that should

have been dismissed." Carney, 19 F.3d at 955 (emphasis added)

(discussing 12 U.S.C. § 1821(d)(5)(F) which provides that filing

an RTC claim "shall not prejudice any right of the claimant to

continue any action which was filed before the appointment of the

receiver"). Burr's TransOhio claim should have been, and

properly was, dismissed. 

 

9 Despite the fact that she filed her claim against

TransOhio after the RTC was appointed receiver, Burr argues that

the district court should have acquired subject matter

jurisdiction over her TransOhio claim because at the time she

filed she was unaware of the receivership. In Meliezer, we held

that exhaustion of RTC administrative remedies is a precondition

to subject matter jurisdiction in a district court, with or

without notification. Meliezer, 952 F.2d at 882-83 (holding that

alleged noncompliance by the RTC with the requirement of 12

U.S.C. § 1821(d)(3)(C)(ii) to mail creditors notice of the

statutory bar date for filing claims with the receiver did not

relieve claimant of obligation to exhaust administrative

remedies). Moreover, in this regard, contrary to Burr's attempt

to distinguish Meliezer from the case at bar, we discern no

significant difference between notice of the bar date and notice

of the fact that a receivership has been declared. As we noted

in Meliezer, the Supreme Court has indicated that "it would be

most reluctant to conclude that every failure of an agency to

observe a procedural requirement voids subsequent agency action,

especially when important public rights are at stake." Meliezer,

952 F.2d at 883 (quoting Brock v. Pierce County, 476 U.S. 253,

260 (1986)).

9

TransOhio was properly dismissed.9 In contrast, subject matter

jurisdiction over the claim against TransOhio Federal was vested

in the district court from the moment Burr filed suit. Because
10

the TransOhio Federal claim had been filed before the RTC

receivership, the claim was merely suspended when the RTC was

appointed receiver for TransOhio Federal. The district court

retained continuing jurisdiction and the timely appeal of the

district court's dismissal served to satisfy the requirements of

§ 1821(d)(6)(B). By appealing the dismissal order before the

lapse of the specified 60-day period, Burr effectively

"continue[d] an action commenced before the appointment of the

receiver." 

We conclude that the district court never acquired subject

matter jurisdiction over Burr's TransOhio claim but that

jurisdiction over the TransOhio Federal claim was ongoing. As to

the TransCapital and Omni claims, there has been no assertion

that these defendants are insured depository institutions in

receivership and under the purview of FIRREA. Therefore, the

district court has had continuing subject matter jurisdiction

over TransCapital and Omni from the time Burr filed her claim. 

B. Venue

The RTC insists that under FIRREA it is not enough that Burr

continued her claim against TransOhio Federal within the

prescribed time limit. The statute stipulates that, after

administrative review, a suit must be filed or continued either

in the district in which the bank's principal place of business

is located or in the district court for the District of Columbia. 

12 U.S.C. § 1821(d)(6)(A). TransOhio and TransOhio Federal are
11

based in Ohio. Consequently, the RTC argues, because Burr's suit

was brought in the Southern District of Texas it must fail. 

Although the RTC characterizes its argument in terms of both

venue and jurisdiction, we have pointed out that the requirements

of this provision "are treated as venue, rather than

jurisdictional, requirements." Matter of 5300 Memorial

Investors, Ltd., 973 F.2d 1160, 1163 (5th Cir. 1992); see also,

Karol v. Resolution Trust Corp., 839 F. Supp. 14, 17 n.3 (E.D.

Tex. 1993); Vinton v. Trustbank Sav., F.S.B., 798 F. Supp. 1055,

1065 (D. Del. 1992) (determining that § 1821(d)(6)(A) is a

special venue provision, notwithstanding use of the term

"jurisdiction"). 

We conclude that the district court should not have

dismissed Burr's claim against TransOhio Federal and the RTC on

the basis of improper venue. Despite the broad discretion

afforded a district court on issues of venue, we find that

dismissal of Burr's action for improper venue was an abuse of

discretion. Where it is in the interest of justice, Title 28 of

the United States Code stipulates that a district court shall

transfer a case that has been filed in the wrong district. 28

U.S.C. 1406(a); ACF Indus., Inc. v. Guinn, 384 F.2d 15, 20 (5th

Cir. 1967). Rather than dismissing it, the district court must

transfer the case to a district in which it could have been

brought. 28 U.S.C. § 1406(a). 

If by reason of the uncertainties of proper venue a mistake 

is made, Congress, by enactment of § 1406(a), recognized 

that 'the interest of justice' may require that the 

complaint not be dismissed but rather that it be transferred 
 

10 Under §§ 1441a(l)(3)(A) and 1821(d)(6)(A), venue for a

claim against TransOhio Federal and the RTC would be proper only

in Washington D.C. or in the Northern District of Ohio--the

district in which TransOhio Federal's principal place of business

was located. 12 U.S.C. §§ 1441a(l)(3)(A) and 1821(d)(6)(A). The

parties have treated all defendants as a group insofar as venue

is concerned, and we do not decide any venue issue as to

TransCapital and Omni.

12

in order that the plaintiff not be penalized by . . . 'timeconsuming and justice-defeating technicalities.'

Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962).

We instruct the district court, on remand, to transfer

Burr's claim against TransOhio Federal and the RTC to a district

that is proper under 12 U.S.C. §§ 1441a(l)(3)(A) and

1821(d)(6)(A).10 Otherwise Burr would be time-barred from

initiating another action against both TransOhio and TransOhio

Federal. Given that the "functional purpose of 28 U.S.C. §

1406(a) is to eliminate impediments to the timely disposition of

cases and controversies on their merits," such a result would

not serve the interests of justice. Minnette v. Time Warner, 997

F.2d 1023, 1027 (2nd Cir. 1993).

C. Failure to State a Claim

The RTC argues that, as to TransOhio Federal, TransCapital,

and Omni, Burr "states no claim or cause of action upon which

relief can be granted." Framed in this way, their argument

raises a 12(b)(6) issue. FED. R. CIV. P. 12(b)(6). The RTC

supported its motion to dismiss with copies of deeds to the

Comfort Inn Greensboro recorded in North Carolina. In cases

where the district court has considered material extraneous to
13

the pleadings, "an appellate court may review the lower court's

decision as one for summary judgment, even if the court

mislabeled it as a 12(b)(6) dismissal." Jackson v. Procunier,

789 F.2d 307, 310 (5th Cir. 1986). The district court did not

expressly state its grounds for dismissal. In spite of the fact

that the district court dismissed the action "without prejudice,"

thereby suggesting that the dismissal was a subject matter

jurisdiction dismissal as to all defendants, both the RTC and

Burr address the district court dismissal, in part, as if it were

a 12(b)(6) summary judgment. However, summary judgment is a

final adjudication on the merits. Hulsey v. Texas, 929 F.2d 168,

170 (5th Cir. 1991); Stanley v. Central Intelligence Agency, 639

F.2d 1146, 1156 (5th Cir. 1981), rev'd on other grounds, 483 U.S.

669 (1987). Dismissal with prejudice for failure to state a

claim is also a decision on the merits. Persyn v. United States,

935 F.2d 69, 74 (5th Cir. 1991); Mahone v. Addicks Util. Dist.

836 F.2d 921, 940 (5th Cir. 1988). Because the district court

dismissed all of Burr's claims without prejudice and because

there was no motion for summary judgment filed, we find that the

district court did not treat the RTC's motion for 12(b)(6)

dismissal as a motion for summary judgment.

A motion to dismiss for failure to state a claim should be

granted "only if it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim that would entitle

him to relief." Matter of United States Abatement Corp., 39 F.3d

556, 559 (5th Cir. 1994). Such a dismissal is disfavored in the
14

law and rarely granted. Kaiser Aluminum & Chemical Sales, Inc.

v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982),

cert. denied, 459 U.S. 1105 (1983). A complaint fails to state a

claim on which relief may be granted where the pleadings are

inadequately framed or where the law does not afford relief on

the basis of the facts alleged. Walker v South Cent. Bell Tel.

Co., 904 F.2d 275, 277 (5th Cir. 1990). The Federal Rules of

Civil Procedure require that a pleading setting forth a claim for

relief must contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." FED. R. CIV. P.

8(a). There are two grounds on which pleadings may be found to

be inadequately framed: failing to provide notice of the

circumstances giving rise to the claim; or failing to "set forth

sufficient information to outline the elements of [the] claim or

to permit inferences to be drawn that these elements exist." 

Walker, 904 F.2d at 277 (quoting 5 WRIGHT AND MILLER, FEDERAL PRACTICE

PROCEDURE § 1216 (1969)). The RTC invokes the second of these two

grounds by arguing that Burr failed to state a claim against

TransOhio Federal, TransCapital, and Omni because none of these

defendants owned the Comfort Inn Greensboro at the time of Burr's

accident.

An innkeeper has a duty to protect his guests against

unreasonable risk of physical harm. Banks v. Hyatt Corp., 722

F.2d 214, 221 (5th Cir. 1984) (citing the general rule as set out

in the RESTATEMENT (SECOND) OF TORTS § 314A (1965)). Burr alleged

that, in the course of owning, operating, or controlling the
15

Comfort Inn Greensboro, the defendants--TransOhio, TransOhio

Federal, TransCapital, and Omni--negligently failed to provide

her with safe premises. Burr linked TransOhio to TransCapital

and Omni via an alter-ego theory of liability, asserting that:

[T]hese Defendants are sham corporate structures who

failed to follow corporate formalities and, as such,

the act of one is the act of the other and their

corporate identity should be disregarded. Further,

Plaintiff would show that the management and operation

of these Defendants are assimilated to the extent that

the subsidiaries are simply a name or conduit through

which the parent conducts its business so that the

corporate fiction should be disregarded.

We find that the statement of Burr's claim satisfied the

requirements of Rule 8(a). The pleading did not need to outline

all the elements of her claim. Walker, 904 F.2d at 277. As long

as it is possible to draw an inference from Burr's complaint that

the necessary elements existed, her claim will not fail as

inadequate. Id. It does not appear beyond doubt that Burr can

prove no set of facts in support of her claim that would entitle

her to relief. Therefore, we conclude that Burr's complaint

should not have been dismissed for failure to state a claim upon

which relief can be granted. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the dismissal of Burr's

claim against TransOhio for lack of subject matter jurisdiction,

but we REVERSE the district court's dismissal of the claims

against TransOhio Federal, the RTC, TransCapital, and Omni for
16

lack of subject matter jurisdiction, improper venue, and the

failure to state a claim upon which relief can be granted, and we

REMAND with instructions that the district court transfer these

claims to a district where venue is proper. Costs shall be borne

by the defendants.