United States Court of Appeals,

Eleventh Circuit.

No. 97-5178.

NATIONAL PARTNERSHIP INVESTMENT CORP., a California Corporation, as the

managing general partner of National Corporate Tax Credit Fund V, a California limited partnership

and National Tax Credit Management Corp. I, a California Corporation, Plaintiff-Appellee,

v.

NATIONAL HOUSING DEVELOPMENT CORPORATION, a Florida non-profit corporation,

Defendant-Appellant.

Sept. 10, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 97-8434-cvKLR), Kenneth L. Ryskamp, Judge.

Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

BLACK, Circuit Judge:

Defendant-Appellant National Housing Development Corp. (NHDC) appeals the district

court's order appointing a receiver pendente lite in this foreclosure action. The appeal raises two

narrow questions of law: (1) whether the appointment of a receiver by a federal court exercising

diversity jurisdiction is governed by state or federal law; and (2) what standard of review this Court

should apply in reviewing the appointment of a receiver. We conclude that federal law governs the

appointment of a receiver and that the decision of the district court should be reviewed for an abuse

of discretion. Applying these principles to the present case, we affirm the order of the district court.

I. BACKGROUND

NHDC is the operating general partner of Mangonia Residence I, Ltd. ("the Partnership").

The Partnership is a Florida limited partnership that was organized in 1994 to build and lease a 252-

unit apartment complex for low income elderly persons in West Palm Beach, Florida.
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Plaintiff-Appellee National Partnership Investment Corp. (NAPICO) is the managing general

partner of National Corporate Tax Credit Fund V (NCTCV). NCTCV is a limited partner in the

Partnership with a 98.9% ownership interest. Plaintiff-Appellee National Tax Credit Management

Corp. I(NTC) is a special limited partner in the Partnership with a 0.1% interest. NHDC owns the

remaining 1% interest in the Partnership.

NAPICO and NTC (Appellees) brought this diversity action against NHDC to foreclose their

security interest in NHDC's 1% share of the Partnership. Appellees also filed an emergency motion

to oust NHDC as the operating general partner and to appoint a receiver to take charge of the

Partnership. The district court issued an interlocutory order appointing a receiver pendente lite.

NHDC appeals that order pursuant to 28 U.S.C. § 1292(a)(2).

II. ANALYSIS

NHDC contends that the appointment of a receiver in a diversity case is governed by state

substantive law in accordance with Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938). NHDC favors application of Florida law in the present case because the

standards governing the appointment of a receiver under Florida law are arguably more stringent

than under federal law. Compare McAllister Hotel, Inc. v. Schatzberg, 40 So.2d 201, 202-03

(Fla.1949) (emphasizing the need to show insolvency or fraud before a receiver will be appointed),

with Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 326-27 (1st Cir.1988) (discussing

six factors federal courts may consider in determining whether to appoint a receiver). NHDC further

asserts that this Court should conduct a de novo review of the district court's decision to appoint a

receiver.
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Appellees argue that federal law governs the appointment of a receiver in a diversity case.

Appellees also assert that this Court should review the decision to appoint a receiver for an abuse

of discretion.

A. What Law Governs

 As the First Circuit noted in Chase Manhattan Bank, N.A. v. Turabo Shopping Center, Inc.,

683 F.2d 25, 26 (1st Cir.1982), "[m]ost federal court decisions dealing with the appointment of a

receiver pendente lite appear to apply federal law without discussion." Of those circuits that have

directly addressed the issue, each has held that the appointment of a receiver in a diversity action

is governed by federal law. See Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316

(8th Cir.1993); Turabo, 683 F.2d at 26; see also Resolution Trust Corp. v. Fountain Circle Assocs.

Ltd. Partnership, 799 F.Supp. 48, 50 (N.D.Ohio 1992); New York Life Ins. Co. v. Watt West Inv.

Corp., 755 F.Supp. 287, 289-90 (E.D.Cal.1991). Commentators generally approve of the conclusion

reached by these courts. See 12 Charles Alan Wright et al., Federal Practice and Procedure §

2983, at 33-35 (2d ed.1997); 13 James Wm. Moore et al., Moore's Federal Practice ¶ 66.09 (3d

ed.1998).

 The conclusion that federal law governs the appointment of receivers is based on several

considerations. First and foremost, the appointment of a receiver in equity is not a substantive right;

rather, it is an ancillary remedy which does not affect the ultimate outcome of the action. Pusey &

Jones Co. v. Hanssen, 261 U.S. 491, 497, 43 S.Ct. 454, 456, 67 L.Ed. 763 (1923). The conclusion

that federal law governs the appointment of a receiver thus does not conflict with the Erie doctrine's

requirement that state law apply to matters of substance. New York Life, 755 F.Supp. at 291, 12

Wright § 2983, at 34; 13 Moore ¶ 66.09; see also Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.
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Federal Rule of Civil Procedure 66 provides:

An action wherein a receiver has been appointed shall not be dismissed

except by order of the court. The practice in the administration of estates by

receivers or by other similar officers appointed by the court shall be in accordance

with the practice heretofore followed in the courts of the United States or as

provided in rules promulgated by the district courts. In all other respects the

action in which the appointment of a receiver is sought or which is brought by or

against a receiver is governed by these rules. 

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The Advisory Committee's Note indicates that "[t]he last sentence added to Rule 66 assures

the application of the rules in all matters except actual administration of the receivership estate

itself." 

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667, 674, 70 S.Ct. 876, 880, 94 L.Ed. 1194 (1950) (noting that, in a diversity case, a declaratory

remedy may be given by a federal court even if that remedy is unavailable in state court); Guaranty

Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (stating that the

equity power of a federal court exercising diversity jurisdiction cannot be equated with state law

under the Erie doctrine).

Second, Federal Rule of Civil Procedure 661

 and the accompanying Advisory Committee's

Note2 assert the primacy of federal law in the practice of federal receiverships. New York Life, 755

F.Supp. at 289-90, 12 Wright § 2983, at 35. Thus, to the extent Rule 66 dictates what principles

should be applied to federal receiverships, courts must comply with the Rule even in the face of

differing state law. See Hanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8

(1965) (stating that in a diversity case, "[w]hen a situation is covered by one of the Federal Rules,

... the court has been instructed to apply the Federal Rule, and can refuse to do so only if the

Advisory Committee, this Court, and Congress erred in their prima facie judgment that the Rule in

question transgresses neither the terms of the Enabling Act nor constitutional restrictions."); see
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NHDC contends that in Strickland v. Peters, 120 F.2d 53, 56 (5th Cir.1941), this Court

concluded state law should govern the appointment of a receiver. The Strickland Court,

however, never directly addressed whether state or federal law applies to the appointment of a

receiver. Any such statement or implication drawn from Strickland is therefore dicta and not

controlling. 

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also 12 Wright § 2983, at 34 (stating that the conclusion that federal law governs the appointment

of a receiver is consistent with Hanna ).3

We therefore hold that federal law governs the appointment of a receiver by a federal court

exercising diversity jurisdiction.

B. Standard of Review

 Courts and commentators agree not only that federal law governs the appointment of a

receiver, but also that a court of appeals should review a district court's decision to appoint a

receiver for an abuse of discretion. See Aviation Supply Corp, 999 F.2d at 317; Lyman v. Spain, 774

F.2d 495, 497 (D.C.Cir.1985); Turabo, 683 F.2d at 27; Mintzer v. Arthur L. Wright & Co., 263 F.2d

823, 825 (3d Cir.1959); 13 Moore ¶ 66.07[3]; 12 Wright § 2983, at 30-31. We agree with these

authorities and hold that the decision to appoint a receiver should be reviewed for an abuse of

discretion.

After reviewing the record and briefs in this case, we conclude that the district court did not

abuse its discretion in appointing a receiver pendente lite.

III. CONCLUSION

The appointment of a receiver by a federal court exercising diversity jurisdiction is governed

by federal law. This Court reviews the decision to appoint a receiver for an abuse of discretion. In

this case, the district court did not abuse its discretion.

AFFIRMED.
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