Cardente v. Fleet Bank of Maine, Inc., Civ. No. 92-30-P-C.

Citation796 F. Supp. 603
Decision Date16 June 1992
Docket NumberCiv. No. 92-30-P-C.
PartiesDouglas CARDENTE and Linda A. Cardente, Plaintiffs, v. FLEET BANK OF MAINE, INC., Federal Deposit Insurance Corporation and Recoll Management Corporation, Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)


S. James Levis, Drummond, Woodsum, Plimptom & MacMahon, Portland, Me., for defendant Fleet Bank of Maine.

John S. Campbell, Poulos, Campbell & Zendzian, Portland, Me., for plaintiffs.

Kevin G. Libby, Portland, Me., for defendant F.D.I.C. and Recoll Management.


GENE CARTER, Chief Judge.

This case involves the repudiation by the Federal Deposit Insurance Corporation ("FDIC")1 as lessee of a lease with Douglas and Linda Cardente ("Plaintiffs"). As a result of this repudiation, Plaintiffs brought a Complaint filed January 21, 1992, seeking a declaratory judgment that its Note, Mortgage, and Agreement are unenforceable in light of Defendants' alleged breach of the lease. Defendants brought this motion to dismiss filed April 22, 1992, based on Plaintiffs' alleged failure to comply with the applicable statute of limitations, and failure to state a claim on the basis of the provisions of both 12 U.S.C. section 1821(e) and 12 U.S.C. section 1823(e).2

Plaintiffs' memorandum of law in opposition to Defendants' Motion to Dismiss was due on May 11, 1992, pursuant to Rule 19(c) of the Rules of the United States District Court for the District of Maine and Rule 6(a) of the Federal Rules of Civil Procedure. On May 5, 1992, Plaintiffs filed a Motion for Enlargement of Time to File Memorandum with Respect to Plaintiffs' Objection to Motion to Dismiss, requesting an enlargement of time until May 27, 1992 to file a Memorandum in Opposition to the Motion to Dismiss of Defendants the FDIC and RECOLL Management Corporation ("Plaintiffs' Memorandum"). The Court granted the motion for enlargement on May 8, 1992. Plaintiffs, however, untimely filed their Memorandum on May 28, 1992, thereby violating the Court's Order. Therefore, pursuant to Local Rule 19(c), Plaintiffs are deemed to have waived objection to Defendants' Motion to Dismiss, and the Court will grant said Motion to Dismiss. See, e.g., United Transportation Union v. Maine Central Railroad Co., 107 F.R.D. 383, 384 (D.Me.1985); McDermott v. Lehman, 594 F.Supp. 1315, 1324 (D.Me. 1984).

The Court notes in the interest of providing a complete decisional record that is likely to permit dispositive action on appeal that even had Plaintiffs timely filed their Memorandum, and the Court, on all the written submissions, had fully examined the merits of Defendants' Motion to Dismiss, it would have granted Defendants' Motion for the reasons that follow.3


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) will be granted "only if the plaintiff cannot prove any set of facts upon which relief may be granted." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The Court takes the allegations in the complaint as true, see Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987), and construes the complaint in the light most favorable to the plaintiff, see Conley, 355 U.S. at 45-46, 78 S.Ct. at 102. At the same time, the Court need not accept conclusory allegations regarding the legal effect of events that do not reasonably follow from more specific facts that have been alleged to have occurred. See Kadar Corp. v. Milbury, 549 F.2d 230, 235 (1st Cir.1977).


In light of the above standard, the Court finds the following facts to be true.4 In or about the summer of 1987, MNB made it known publicly that it was looking for a location in Auburn, Maine at which to locate a new branch. On April 4, 1988, by deed of that date, Plaintiffs purchased for $220,000 land and buildings located at 181 Center Street in Auburn, Maine ("Project").

On April 12, 1988, MNB issued a commitment letter to Douglas Cardente ("Commitment Letter"), in which it memorialized its offer to provide financing of $965,000 upon certain conditions including, inter alia, the execution and delivery of a commercial note, mortgage, and additional collateral of $250,000.5 Cardente signed the Commitment Letter on April 22, 1988.

On April 13, 1988, Douglas Cardente, on behalf of Cardente Properties and The Sheridan Corporation, entered into a construction contract under which Sheridan was to perform certain construction work on the Center Street building.

On May 19, 1988, Douglas Cardente, as landlord, and MNB, as tenant, entered into a ten year lease ("Lease") for a portion of the Project at a base rent of $44,010 per year, subject to escalators of 3% per year. This rent reflected above-market rental rates.

On June 2, 1988, MNB held a closing on the $965,000 loan, which was designated by the Bank as a loan "for construction of an office and rental facility." At the closing, Defendants executed and delivered to MNB the Note for $965,000, the Mortgage for $965,000 as security for the Note, and the Agreement. Certain documents, including the Lease, Note, Mortgage, and Commitment Letter, were incorporated with a cover sheet by MNB's counsel into a single binder, which MNB maintained as an official record.

On July 19, 1991, the FDIC, in its capacity as Receiver, notified Douglas Cardente by letter that it was disaffirming the Lease effective December 1, 1991. In the interim, Fleet Bank took possession of the premises, paid the rent beginning in September 1991 and operated out of the premises extending beyond December 31, 1991. On August 28, 1991, Cardente wrote to Fleet Bank advising it that the Project was "built specifically" for MNB, that the financing arrangement was one contract with the Lease, and that it would not have been entered into if MNB had not simultaneously agreed to be the "anchor tenant." He objected to the purported rejection of the Lease and that the loan could not be serviced without MNB as the "anchor tenant."

On October 16, 1991, Cardente filed a Proof of Claim with the FDIC, claiming damages relating to the disaffirmance of the Lease. By letter dated November 20, 1991, the FDIC notified Cardente that it had denied his claim.

On January 21, 1992, Plaintiffs filed a Complaint in this Court.


As their first argument for dismissal of Plaintiffs' Complaint, Defendants assert that the Court has no jurisdiction to hear this Complaint because Plaintiffs failed to file the Complaint within the statutory period of 60 days, as prescribed under 12 U.S.C. § 1821(d)(6)(A) and (B). See Memorandum of Defendants FDIC and Recoll Management Corporation in support of its Motion to Dismiss ("Defendants' Memorandum") at 4-5; Reply Memorandum of FDIC in Support of Motion to Dismiss at 3-5. Pursuant to FIRREA, Plaintiffs had to file their Complaint by January 18, 1992, that is, within 60 days of the date of the notice of disallowance, which was dated November 20, 1991. Defendants argue that Rule 6(a) of the Federal Rules of Civil Procedure6 may extend a federal statute of limitation only if the statute is procedural and not jurisdictional. See Reply Memorandum at 3-4. They further assert that the statute at issue here is jurisdictional and, hence, that Rule 6(a) does not apply. See id. at 4-5. Therefore, they conclude that Plaintiffs' Complaint should be dismissed because it was filed on January 21, 1991, which fell outside the statutory period under FIRREA.

Plaintiffs assert that Rule 6(a) does apply to the statute of limitations under FIRREA and, that, therefore, because the 60th day fell on a Saturday and the following Monday was Martin Luther King Day, a federal holiday, they have met the statutory deadline under section 1821(d)(6)(A) and (B). See Plaintiffs' Memorandum at 15.

The Court disagrees. The "majority rule" is that the Rule 6 exclusion of final Saturdays, Sundays, and legal holidays is applicable to federal statutes of limitation. See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1163, at 465 (1987). Where, however, the federal statute is jurisdictional, rather than merely procedural, the application of Rule 6 to extend the jurisdiction of the Court is not appropriate. See Hilliard v. United States Postal Service, 814 F.2d 325, 327 (6th Cir. 1987); King v. Dole, 782 F.2d 274, 275 (D.C.Cir.1986); Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir.1986).7

Here, because the time limitations in section 1821(d)(6) are jurisdictional prerequisites,8 the Court may not apply Rule 6(a) to extend the Court's jurisdiction over Plaintiffs' untimely filed Complaint. Cf. Allgood v. Elyria United Methodist Home, 904 F.2d 373, 375 (6th Cir.1990) ("We find that this six-month statute of limitations for hybrid section 301 suits ... is procedural, not jurisdictional."); Armstrong v. Tisch, 835 F.2d 1139, 1140 n. 1 (5th Cir. 1988) ("We have before us a regulation of the EEOC that affects another agency, the USPS.... The regulation is not a congressional grant of jurisdiction to the federal courts."). Therefore, even if Plaintiffs' counsel had not violated Local Rule 19(c), the Court would have dismissed Plaintiffs' Complaint for lack of timeliness under 12 U.S.C. section 1821(d)(6)(A) and (B).

In the interest, once again, of providing a complete record for dispositive appellate review of all issues now generated, the Court will address the remaining issues generated by Defendants' arguments on this Motion to Dismiss as it would if persuaded that it had jurisdiction over Plaintiffs' Complaint.


Defendants next argue that the Complaint should be dismissed because it alleges no basis for challenging the FDIC's repudiation of the lease under 12 U.S.C. section 1821(e) and, further, that each element of the statute has been satisfied.9 See Defendants' Memorandum at 6-8.

The Court...

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