FDIC v. Niblo

Decision Date06 May 1993
Docket NumberCiv. A. No. 1:92-CV-107-C,1:92-CV-110-C and 1:92-CV-128-C.
Citation821 F. Supp. 441
PartiesFEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff, v. Sidney E. NIBLO, et al., Defendants.
CourtU.S. District Court — Northern District of Texas

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Clifford Charles Ruder, F.D.I.C., Legal Div., USA, Brenda H. Collier, Collier & Associates, Paul Christopher Wolf, F.D.I.C., Dallas, TX, William E. Minkley, F.D.I.C., San Antonio, TX, Roy B. Longacre, Diann D. Waddill, Wagstaff Alvis Stubbeman Seamster & Longacre, Abilene, TX, for F.D.I.C.

W.C. Bratcher, Philip W. Johnson, Crenshaw Dupree & Milam, Lubbock, TX, for Sydney E. Niblo and John A. Wright.

Stephen H. Suttle, McMahon, Surovik Suttle Buhrmann Cobb & Hicks, Abilene, TX, William Franklin (Pete) Baker, McCleskey Harriger Brazill & Graf, Lubbock, TX, for

Robert L. Adkins, John R. Cox, Jr. and Luther C. Martin.

Charles Dick Harris, Harris & McBeath, Abilene, TX, for Kenneth L. Burgess, Paul Cain and Byron L. Calcote.

William Franklin (Pete) Baker, McCleskey, Harriger Brazill & Graf, Lubbock, TX, for Ronnie L. Cox.

J. Donald Bowen, Helm Pletcher Hogan Bowen & Saunders, Houston, TX, John Franklin Maner, Maner & Maner, Lubbock, TX, Kenneth Leroy Maxwell, Jr., Moore Dickson Roberts & Ratliff, Inc., Sweetwater, TX, for R. Temple Dickson.

Charles Randall Griggs, Nunn Griggs Sheridan & Conard, Sweetwater, TX, Stephen H. Suttle, McMahon, Surovik Suttle Buhrmann Cobb & Hicks, Abilene, TX, William Franklin (Pete) Baker, McClesky Harriger Brazill & Graf, Lubbock, TX, for Robert W. Hampton, Kevin Hutson, Leslie F. Wootan.

D. Grant Seabolt, Jr., pro se.

MEMORANDUM OPINION AND ORDER

CUMMINGS, District Judge.

The above-styled and -numbered action is before the Court on Plaintiff's Motion to Strike Affirmative Defenses, filed in this action on March 16, 1993. The court has carefully considered the motion, brief in support, responses and other items of record. Upon consideration, the Court is of the opinion that the motion should be GRANTED IN PART, DENIED IN PART in accordance with the discussion below. Accordingly, the Defendants' affirmative defenses of laches, contributory or comparative negligence, contribution (including offset and recoupment), indemnity, assumption of risk, unconstitutionality of exemplary damages, no liability to FDIC as subrogee, ratification by officers and shareholders, good faith reliance on the advice of others, waste of receivership assets, and no approval and confirmation of acquisition of action from receivership court are hereby stricken to the extent discussed below. All other affirmative defenses of the Defendants, to the extent that they are not stricken, shall remain a part of Defendants' pleadings and, as such, remain contested issues for trial.

OPINION
I. Jurisdiction

Jurisdiction is found in this matter because the FDIC is Plaintiff in this action, and thus an agency of the United States,1 giving rise to United States Plaintiff jurisdiction.2 Furthermore, all civil suits to which the FDIC is a party in any capacity are deemed to arise under the laws of the United States,3 giving rise to federal question jurisdiction.4

II. Standard for Grant of Motion to Strike

Rule 12(f) of the Federal Rules of Civil Procedure states:

Upon motion made by a party before responding to a pleading, or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter.5

Both because striking a portion of a pleading is a drastic remedy, and because it often is sought by the movant simply as a dilatory tactic, motions under Rule 12(f) are viewed with disfavor and are infrequently granted.6 In order to succeed on a motion to strike surplus matter from an answer, it must be shown that the allegations being challenged are so unrelated to plaintiff's claims as to be unworthy of any consideration as a defense and that their presence in the pleading throughout the proceeding will be prejudicial to the moving party.7 The court must deny a motion to strike if there is any question of fact or law.8 The granting of the motion is within the discretion of the court.9

III. Background Facts

This action arises out of the transfer of Texas Bank and Trust Company, Sweetwater, Texas, (TBT) to the State of Texas for liquidation, on July 27, 1989. The State of Texas appointed FDIC as receiver that same day, and the FDIC accepted the receivership pursuant to 12 U.S.C. § 1821(c)(3)(A).10 FDIC, in its corporate capacity,11 filed the instant action on July 24, 1992, against certain former officers and directors of TBT, alleging negligence, breach of fiduciary duty, and breach of contract.12 The complaint alleges that certain acts and/or omissions of the Defendants, with respect to 6 loan transactions, resulted in losses to TBT of at least $3 million. This case is just one in a line of many "second-tier" asset recovery cases brought by the FDIC in its attempt to resolve the nationwide banking crisis.13

On March 16, 1993, Plaintiff was granted leave to file its Motion to Strike Defendants' Affirmative Defenses. Plaintiff seeks to strike the numerous affirmative defenses asserted by the Defendants in their answers.

IV. What Law Governs

Plaintiff has brought suit against certain former officers and directors of TBT, claiming negligence and breach of fiduciary duty. These claims are clearly state-law claims. As such, Texas law will govern these actions and any defenses asserted by Defendants, except in such areas where there is a clear preemption by federal law.14

V. The Individual Affirmative Defenses
A. Limitations (All Defendants)

Statute of limitations is a defensive matter which must be set forth in the affirmative.15 The question of limitations was raised in Defendants' Motion to Dismiss or Alternatively, for Summary Judgment, previously considered by this court. An order was entered on March 16, 1993, denying summary judgment to the Defendants on limitations grounds. There are fact issues which relate to the limitations defense which must be borne out at trial.16 Additionally, the defense of limitations is not one which is invalid as a matter of law against the FDIC. The special limitations periods for the FDIC specify the time in which the FDIC must assert acquired tort claims.17 This defense should not be stricken.

B. Laches (All Defendants)

Laches is an equitable affirmative defense which must be pled and proved by the defendant.18 It is analogous to statutes of limitation at law.19 The doctrine of laches prevents parties from seeking equitable relief if they have improperly rested on their claims and the defendants would be prejudiced as a result of the delay.20 There are three interrelated elements to the defense of laches: 1) delay in asserting a right or claim; 2) that the delay was inexcusable; and 3) that undue prejudice resulted from that delay.21

FDIC argues that laches is not available against the United States as a matter of law.22 This is only partially true. Laches may not be asserted as a defense against the United States when acting in its sovereign capacity to enforce a public right or protect the public interest.23

As a matter of law, the FDIC is an agency of the United States government.24 However, the issue of whether the FDIC is acting in a sovereign capacity to enforce a public right or protect a public interest need not be reached. Laches is usually available only in suits brought in equity or in actions at law involving claims which are essentially equitable, and applies when there is no analogous statutory limitation.25 Under Texas law, the doctrine of laches is inapplicable to an action that comes within the provision of a particular statute of limitations.26

FDIC brings this suit in its corporate capacity as assignee of TBT's causes of action against the officers and directors. FDIC alleges in its pleadings that FDIC-Receiver acquired this cause of action when FDIC-Receiver was appointed by the State as liquidating agent. In the Fifth Circuit, there is no authority which dictates whether FDIC-Corporate, in prosecuting actions such as the case at bar, acts in a sovereign capacity to enforce a public right or protect the public interest. However, it is clear that, under Texas law, laches is not available in this case because 1) the case is an action at law, not equity, and 2) there is an applicable statute of limitations.27 The affirmative defense of laches should be stricken.

C. Waiver (Niblo, Wright, Dickson)

Waiver is an affirmative defense which must be pled in the affirmative.28 Under Texas law, waiver is the voluntary, intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.29 The elements of waiver are 1) an existing right, benefit, or advantage; 2) knowledge, actual or constructive, of the existence of that right, benefit, or advantage; and 3) actual intent to relinquish the right, which can be inferred from conduct.30 Generally, waiver is a fact question turning on the question of intent.31 The acts, words, or conduct relied upon to establish intention must be such as to manifest an unequivocal intention to no longer assert the right.32 Waiver becomes a matter of law only where the material facts and circumstances are undisputed and there is no room for argument or inference.33

Plaintiff argues that the defense of waiver is insufficient as a matter of law because it calls into question the conduct of the FDIC.34 Plaintiff asserts that this court should strike the affirmative defense of waiver because the FDIC owes no duty to the Defendants. The assertion that waiver is not a...

To continue reading

Request your trial
131 cases
  • Hindes v. F.D.I.C.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • February 19, 1998
    ...other claimants are incidental to the primary intended beneficiaries, the insurance fund and the taxpayers. See FDIC v. Niblo, 821 F.Supp. 441, 455 n. 59 & 456 (N.D.Tex.1993); FDIC v. Updike Bros., Inc., 814 F.Supp. 1035, 1041-42 In a similar context, we have noted that the FDIC does not ha......
  • Encore Bank, N.A. v. Bank of Am., N.A.
    • United States
    • U.S. District Court — Southern District of Texas
    • January 23, 2013
    ...1105, 103 S.Ct. 729, 74 L.Ed.2d 953 (1983). The court has considerable discretion whether to grant a motion to strike. FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D.Tex.1993).Defendants' Motion to Dismiss and Motion to Strike (# 37) Defendants contend that the First Amended Complaint fails to cu......
  • Mercado v. Dall. Cnty.
    • United States
    • U.S. District Court — Northern District of Texas
    • January 17, 2017
    ...these motions seek a "drastic remedy" and are often "sought by the movant simply as a dilatory tactic." FDIC v. Niblo , 821 F.Supp. 441, 449 (N.D. Tex. 1993) (Cummings, J.) (citing Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla. , 306 F.2d 862, 868 (5th Cir. 1962) ). "Matter wil......
  • Williams v. Hawkeye Community College
    • United States
    • U.S. District Court — Northern District of Iowa
    • June 27, 2007
    ...of the Amended Complaint would prejudice Defendant. Accordingly, the court declines to grant the motion to strike. See FDIC v. Niblo, 821 F.Supp. 441, 449 (N.D.Tex.1993) (stating that a motion to strike should generally not be granted absent a showing of irrelevance or prejudice) (cited wit......
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 2-1 Officer and Director Liability—Breach of the Duty of Care
    • United States
    • Full Court Press Texas Commercial Causes of Action Claims Title Chapter 2 Business Management Litigation
    • Invalid date
    ...order to overcome the business judgment rule).[8] F.D.I.C. v. Benson, 867 F. Supp. 512, 521 (S.D. Tex. 1994).[9] See F.D.I.C. v. Niblo, 821 F. Supp. 441, 460 (N.D. Tex. 1993).[10] Meyers v. Moody, 693 F.2d 1196, 1212 (5th Cir. 1982).[11] Meyers v. Moody, 693 F.2d 1196, 1212 (5th Cir. 1982).......
  • Chapter 2-2 Officer and Director Liability—Breach of the Duty of Loyalty
    • United States
    • Full Court Press Texas Commercial Causes of Action Claims Title Chapter 2 Business Management Litigation
    • Invalid date
    ...F.2d 707, 721 (5th Cir. 1984) (Texas law).[31] F.D.I.C. v. Benson, 867 F. Supp. 512, 521 (S.D. Tex. 1994).[32] See F.D.I.C. v. Niblo, 821 F. Supp. 441, 460 (N.D. Tex. 1993).[33] Meyers v. Moody, 693 F.2d 1196, 1212 (5th Cir. 1982).[34] Meyers v. Moody, 693 F.2d 1196, 1212 (5th Cir. 1982).[3......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT