Bender v. CenTrust Mortg. Corp.

Decision Date06 July 1992
Docket NumberNo. 91-2521-CIV.,91-2521-CIV.
Citation833 F. Supp. 1525
PartiesGeorge R. BENDER, Plaintiff, v. CENTRUST MORTGAGE CORP., a California corporation, and Resolution Trust Corp., Conservator/Receiver for CenTrust Bank Professional Regulation, Defendants.
CourtU.S. District Court — Southern District of Florida

COPYRIGHT MATERIAL OMITTED

Timothy D. Naegel, Washington, DC, John E. Herndon, Jr., Hollywood, FL, for plaintiff.

Alan J. Kluger, Miami, FL, for defendants.

ORDER ON MOTIONS TO DISMISS AND FOR MORE DEFINITE STATEMENT

MARCUS, District Judge.

THIS CAUSE comes before the Court upon CenTrust Mortgage Corporation's Motion to Dismiss the First Amended Complaint, and Motion for More Definite Statement etc., filed February 5, 1992, and Resolution Trust Corporation's Motion to Dismiss the First Amended Complaint and Motion for More Definite Statement etc., filed February 18, 1992.In addition to the response and reply briefs, with leave of the Court, Plaintiff filed a response to Defendants' replies, and Defendants' filed supplemental responses thereto.Plaintiff is the former President of CenTrust Mortgage Co.("CenTrust Mortgage"), which was a wholly owned subsidiary of CenTrust Bank, and he seeks to recover on a variety of claims arising out of his alleged employment relationship with the CenTrust entities.

Plaintiff alleges that on or about June 10, 1985, George Bender entered into an employment contract in which he agreed to serve as the Chief Executive Officer of CenTrust Mortgage.SeeFirst Amended Complaintat ¶ 7.Pursuant to the employment contract, Bender was to be paid an annual salary, retirement benefits, an initial bonus, and annual incentive bonus, and a long-term incentive bonus.Seeid.Despite the fact that the contract named Bender and CenTrust Bank as the parties, and that only Bender and the Chief Executive Officer of CenTrust Bank signed the contract, Plaintiff maintains that it was the intent of the signers that CenTrust Bank and its subsidiary CenTrust Mortgage be jointly and severally liable for compensation owed Bender.First Amended Complaintat ¶ 9.On February 2, 1990, the Director of the Office of Thrift Supervision took possession of CenTrust Bank and appointed the Resolution Trust Corporation("RTC") as Conservator of the bank.The RTC repudiated Bender's contract on February 5, 1990.

Plaintiff has filed an eleven count complaint seeking a variety of relief.Significantly, Plaintiff attempts to distinguish CenTrust Bank from CenTrust Mortgage and seeks to impose liability upon CenTrust Mortgage.Count I is an action for breach of contract against Centrust Mortgage.Count II is a second action for breach of contract against Centrust Mortgage, based upon third party beneficiary theory.Count III is a breach of contract action against the RTC.Count IV is a claim for quantum meruit recovery against Centrust Mortgage.Count V is a count in quantum meruit against the RTC.Count VI alleges a breach of contract against Centrust Mortgage based on estoppel theory.Count VII is an action for breach of fiduciary duty against Centrust Mortgage.Count VIII is an action for reformation of contract against RTC.Count IX is an action for improper repudiation of the employment contract against the RTC, alleging that RTC abused its discretion in repudiating the employment contract.Count X is a count for tortious interference raised against persons unknown, for improperly causing Bender's termination.Finally, Count XI seeks the imposition of a constructive trust against CenTrust Mortgage and in favor of Bender.

For the reasons detailed below, Defendants' motions to dismiss are DENIED as to Counts I, II, III, IV, V, VI, VII, VIII, IX, and X, and GRANTED as to Count XI, and Defendants' motions for more definite statement are DENIED as to Counts I, III, IV, V, VI, VII, VIII, IX, X, and XI, and GRANTED as to Count II.

I.The Motion to Dismiss Standard

Defendants by these motions seek to dismiss all counts except Count IX's wrongful repudiation claim.A 12(b)(6) motion tests the facial sufficiency of the statement of claim for relief.As the Eleventh Circuit wrote in Jackam v. Hospital Corp. of America Mideast Ltd., the issue is not whether the plaintiffs will prevail ultimately, "but whether the allegations are sufficient to allow them to conduct discovery in an attempt to prove their allegations."800 F.2d 1577, 1579(11th Cir.1986).In addition, a motion to dismiss must be considered in light of Rule 8(a) of the Federal Rules of Civil Procedure which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."Fed.R.Civ.P. 8(a)

The rule is not designed to strike inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity, and the analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto.See5 C. Wright & A. Miller, Federal Practice and Procedure§ 1356 at 590-92(1969).Moreover, for the purposes of the motion to dismiss, the complaint must be construed in a light most favorable to the plaintiff and the factual allegations taken as true.SeeSEC v. ESM Group, Inc.,835 F.2d 270, 272(11th Cir.), cert. denied, Peat Marwick Main & Co. v. Tew,486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923(1988).

The Eleventh Circuit has recently written:

The Supreme Court has stated that the "accepted rule" for appraising the sufficiency of a complaint is "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson,355 U.S. 41, 45-46, 78 S.Ct. 99 101-02, 2 L.Ed.2d 80(1957);Tiftarea Shopper, Inc. v. Georgia Shopper, Inc.,786 F.2d 1115, 1117-18(11th Cir.1986)(quotingConley).

Id.A complaint may not be dismissed because the plaintiff's claims do not support the legal theory he relies upon since the court must determine if the allegations provide for relief on any possible theory.Robertson v. Johnston,376 F.2d 43(5th Cir.1967).We hasten to add that this motion is viewed with disfavor and rarely granted.See e.g., Madison v. Purdy,410 F.2d 99, 100(5th Cir.1969);International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Service,400 F.2d 465, 471(5th Cir.1968)("Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate.").The pleadings must show, in short, that Plaintiff has no claim before the 12(b)(6) motion may be granted.It is against this standard that we consider Defendants' motion to dismiss.

Defendants have also moved for a more definite statement.The Eleventh Circuit considered the interaction of a motion to dismiss for failure to state a claim and a motion for more definite statement in Barnett v. Bailey,956 F.2d 1036(11th Cir.1992):

Under circumstances where, as here, a complaint may not have contained sufficient information to allow a responsive pleading to be framed, "a district court should give a plaintiff an opportunity to amend his complaint rather than dismiss it when it appears that a more carefully drafted complaint might state a claim upon which relief could be granted."Friedlander v. Nims,755 F.2d 810, 813(11th Cir.1985), citingConley v. Gibson, supra.See alsoSisk v. Texas Parks and Wildlife Department,644 F.2d 1056, 1059(5th Cir.1981)("if a complaint is ambiguous or does not contain sufficient information to allow a responsive pleading to be framed, the proper remedy is a motion for a more definite statement under Rule 12(e) F.R.C.P.....")

Fed.R.Civ.P. 12(e) provides as follows:

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.The motion shall point out the defects complained of and the details desired.If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Fed.R.Civ.P 12(e).

II.D'Oench, Duhme and Related Statutory Provisions

Defendants have asserted various state and federal grounds for dismissal.The pre-dominant point of contention between the parties, and the major focus of the memoranda filed regarding these motions, has been the extent to which D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp.,315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956(1942), its progeny, and 12 U.S.C. § 1823(e) bar enforcement of the employment contract against CenTrust mortgage.See12 U.S.C.A. § 1823(e)(West 1989).Because we have serious doubts as to whether D'Oench and its statutory companions apply to the facts of this case, we decline now to grant the motions to dismiss based on the D'Oench doctrine arguments.

In D'Oenchthe Supreme Court considered a situation in which a bank and notemaker had an unwritten understanding that the bank would not enforce the note.D'Oench,315 U.S. at 454, 62 S.Ct. at 678.The FDIC subsequently attempted to collect on the note, and the notemaker contended that he was not required to pay, pursuant to his unwritten agreement with the bank.The Supreme Court held that the FDIC was not bound by the secret agreement, and wrote that there exists "a federal policy to protect the FDIC, and the public funds which it administers, against misrepresentations as to the securities or other assets in the portfolios of the banks which the FDIC insures or to which it makes loans."Id. at 457, 62 S.Ct. at 679.As the Eleventh Circuit explained in Vernon v. Resolution Trust Corporation,907 F.2d 1101(11th Cir.1990):

The purpose of the federal policy articulated by the Supreme Court in D'Oench is
to allow federal and state bank examiners to rely on a
...

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