F.D.I.C. v. Schuchmann, 01-2003.

• Decision Date: 18 February 2003
• Docket Number: No. 01-2003.,01-2003.
• Citation: 319 F.3d 1247
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, as successor to Resolution Trust Corporation, as receiver for First American Savings Bank, Plaintiff-Appellant, v. Tara SCHUCHMANN, Defendant-Appellee, and Bernard Schuchmann, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

319 F.3d 1247

FEDERAL DEPOSIT INSURANCE CORPORATION, as successor to Resolution Trust Corporation, as receiver for First American Savings Bank, Plaintiff-Appellant, v. Tara SCHUCHMANN, Defendant-Appellee, and Bernard Schuchmann, Defendant.

No. 01-2003.

United States Court of Appeals, Tenth Circuit.

February 18, 2003.

Lawrence H. Richmond, Counsel, Federal Deposit Insurance Corporation, (Ann

S. DuRoss, Assistant General Counsel, and Colleen J. Boles, Senior Counsel, Federal Deposit Insurance Corporation, Washington, DC; F. Thomas Hecht and Claudette P. Miller, Ungaretti & Harris, Chicago, IL, with him on the briefs), for the Plaintiff-Appellant.

Douglas P. Lobel, Kelley Drye & Warren LLP, (Alice Tomlinson Lorenz, Miller, Stratvert & Torgerson, P.A., Albuquerque, New Mexico; Joseph F. Yenouskas, Kelley Drye & Warren LLP, Washington, DC, with him on the brief), for the Defendant-Appellee.

Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Federal Deposit Insurance Corporation (FDIC) appeals the district court's award of attorney fees and costs to defendant Tara Schuchmann.¹ We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and reverse and remand with directions to vacate the judgment appealed.

I.

In 1985, a group of investors led by defendant's spouse, Bernard Schuchmann, acquired First American Savings Bank. In 1986, First American was converted to a federally-chartered savings and loan and, at all relevant times, it was insured by the FDIC. Tara Schuchmann, a stock broker, was a director of First American from November 1986 through September 1989. She also served as a member of its loan/investment committee from the spring of 1988 through September 1989. Bernard Schuchmann was the controlling shareholder and chairman of the board of First American.

First American failed and, in 1990, was put under the receivership of the Resolution Trust Corporation (RTC). In 1993, RTC brought suit against various officers and directors of First American and one of its attorneys and the attorney's law firm, alleging state common law claims for breach of fiduciary duties, gross negligence, and negligence. In 1996, the FDIC succeeded to the interests of RTC as receiver and was substituted as plaintiff in this action. All defendants but the Schuchmanns settled their claims before trial.

The case was stayed in 1995 pending a criminal prosecution against Bernard Schuchmann. The stay was lifted in 1997 and the case against the Schuchmanns went to trial in 1998. At the close of the FDIC's case, the district court granted Tara Schuchmann judgment as a matter of law. However, the case continued as to Bernard Schuchmann, ending with a jury verdict in his favor (the jury found him negligent with respect to certain transactions, but declined to award damages because of lack of proximate cause). The district court granted Tara Schuchmann's motion for attorney fees and costs and awarded her $862,600.50. The amount represented all of her attorney fees and costs ($159,059.00) and one-half of the Schuchmanns' common defense costs and fees ($703,541.50).

II.

The district court awarded attorney fees and costs under the bad faith exception to the "American Rule" pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b). Section 2412(b) makes the United States liable for attorney fees "to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award." An award of attorney fees and expenses under the bad faith exception of the EAJA "is committed to the discretion of the district court and will be reversed only when there is a showing of abuse of discretion." United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481, 1488 (10th Cir.1984); see also United States v. McCall, 235 F.3d 1211, 1216 (10th Cir.2000).

III.

Under the "American Rule," each party bears the financial burden of litigating a civil claim. See McCall, 235 F.3d at 1216. Thus, "the prevailing party is not entitled to collect attorney fees from the loser." Id. However, under the bad faith exception, a court may award attorney fees when a party's opponent acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Sterling Energy, Ltd. v. Friendly Nat'l Bank, 744 F.2d 1433, 1435 (10th Cir.1984). "A party acts in bad faith only when the claim brought is entirely without color and has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons." Id. (internal quotations omitted). This court has repeatedly recognized that the exception is a narrow one and may be resorted to only in exceptional cases. E.g., Autorama Corp. v. Stewart, 802 F.2d 1284, 1287 (10th Cir.1986). "Hence, it is not surprising that attorneys' fees are awarded only when there is `clear evidence' that challenged actions are taken entirely without color and are pursued for reasons of harassment or delay." Id. at 1288.

Nature of FDIC claims

The first issue is whether the FDIC claims were entirely without color. The claims against Tara Schuchmann "essentially arose from her abdication of responsibility as a director of First American." Aplt. Br. at 9. The claims against her "clustered around three sets of transactions: the Intervest Note Acquisitions, the Westmoreland Loan and certain securities acquisitions." Id. at 14. In 1998, after Tara Schuchmann filed a motion for summary judgment as to the securities claim, the FDIC filed a motion for leave to withdraw, inter alia, the securities claim against her purportedly because the damages from this claim were comparatively small and the FDIC needed to simplify and expedite its case because the case was set for a five-day trial. The district court granted the FDIC's motion and thus deemed the motion for summary judgment moot. In November 1998, the district court rejected the Schuchmanns' motion for leave to file a motion for summary judgment out of time. The parties did not provide this court with the Schuchmanns' untimely motion for summary judgment; therefore, we are uncertain which claim or claims it addressed. However, the FDIC's brief states that the motion asked for summary judgment as to all claims against defendants. Finally, in December 1998, the district court denied the Schuchmanns' motion for partial summary judgment. The motion argued that several of the FDIC's claims were barred by New Mexico's statute of limitations. The court denied the motion, holding that the applicable statute of limitations was tolled under the adverse domination doctrine. The court stated:

Finally, in the case at bar, the Court finds that the Plaintiff has presented a genuine issue of material fact as to whether the Defendants' positions and conduct warrant tolling the New Mexico statute of limitations under the adverse domination doctrine. Clearly, in this case, the Defendants held key positions within First American and were personally involved in the alleged transactions now before the Court. Moreover, the Plaintiff has presented a question of fact as to whether any of First American's directors would have exposed the Defendants' alleged wrongdoings on behalf of First American. Therefore, the Court will deny the Defendants' summary judgment motion.

Aplee. App. at 179-80 (emphasis added). The two remaining claims against Tara Schuchmann went to trial in December 1998.

At the conclusion of the FDIC's case at trial, Tara Schuchmann moved for judgment as a matter of law. In granting the motion, the district court stated:

I am going to grant the motion. I am going to tell the FDIC attorneys, I believe that if Mrs. Schuchmann's name had been Mrs. Bouty or Mrs. Shriver or Mrs. Neary, she probably wouldn't have been indicted at all. And if Mr. Schuchmann owes money, I am sure that the jury will so find. If he doesn't, I am sure the jury will so find. I have all the faith in that.

I do resent — in any type of criminal or civil proceeding, and I see it all the time in the U.S. Attorney's Office, in order to get the husband to plead guilty to something, we indict the wife, too. She was there in the car when the dope took place, changed hands or something, when the wife didn't have a damn thing to do with it. Frankly, if I was Mrs. Schuchmann, I would resent, as any defendant would, being sued. But in this case, it's obvious to the Court that the reason she was sued is to try to get at her husband. That motion will be granted.

Aplee. App. at 267.

In order to invoke the bad faith exception to the "American Rule," there must be clear evidence that the FDIC claims were entirely without color. See Autorama Corp., 802 F.2d at 1288. In its order awarding costs, however, the district court did not provide any explanation for finding the claims to be completely without merit. Indeed, the only reference to that fact was the court's conclusory statement that the claims were "meritless." Aplt. App. at 576. Nor did the court explain why the claims lacked merit in its oral ruling granting the motion for judgment as a matter of law.

The district court's conclusory ruling is similar to that of the district court in FDIC v. Calhoun, 34 F.3d 1291 (5th Cir. 1994). In Calhoun, the district court entered sanctions against the FDIC pursuant to Rule 11. Like here, the district court ruled that the FDIC claims were legally without merit and that the claims were intended to burden the defendant with litigation costs in order to extract an unwarranted settlement. Id. at 1295. In holding that the district court abused its discretion, the Fifth Circuit stated:

To begin with, the district court was not pellucid in explaining what legal issues were insufficiently researched or unwarranted. This failure to lay out the grounds for such serious sanctions may itself be reversible error. We have long held that a district court, in applying sanctions, may have to make a detailed explanation for its legal reasons....

The purpose...