Federal Deposit Ins. Corp. v. Bachman
| Decision Date | 30 January 1990 |
| Docket Number | No. 88-1827,88-1827 |
| Citation | 894 F.2d 1233 |
| Parties | FEDERAL DEPOSIT INSURANCE CORPORATION, Plaintiff-Appellee, v. William S. BACHMAN; Anthony A. Trutanich; William T. Baird; Albert M. Birnie; James N. Donnerstag; Stephen G. Hoy; W.A. Hull; Jerry W. Neely; King Cooper, Jr.; Donald M. Koll; F. Michael Krotz; L & E Oil Venture, a partnership consisting of Rudy A. Landry and unknown others; Owen H. Lewis; Bruce Ludwig; Raymond I. Mahan; Kathlyn A. Mahan; Lowell W. Morse; Vera Morse; Beverly J. Oetting; Peter B. Reich; Roger C. Schultz; Priscilla Schultz; Dorothy D. Stanton; Harold James Schafer; Jess C. Wilson, Jr., Defendants, and Michael B. Birnie; William H. Birnie; Barbara P. Birnie; Laurence A. Bolton; Kenneth T. Carey; Robert M. Ellis; Ray Elner; Terry D. Evans; George H. Fox, Jr.; John M. Gilchrist, Sr.; Michael J. Gregoire; Brent F. Howell; David D. Hurford, Jr.; Christopher M. Job; Eldred J. Kunkel; Evelyn R. Kunkel; Paul J. Lupo; Key B. Lupo; J. Frank Mahoney, III; Judith M. Mahoney; Richard E. Oetting; Robert K. Ostengaard; Delmar D. Stanton; A.P. Tiddens; Boyd Van Ness; Donald R. Wheeler, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Brinda K. White (Ronald L. Ripley with her on the briefs) of Linn & Helms, Oklahoma City, Okl., for defendants-appellants.
Mack J. Morgan, III, (Denise Cotter Villani with him on the brief) of Crowe & Dunlevy, Oklahoma City, Okl., for plaintiff-appellee.
Before LOGAN, BARRETT, and EBEL, Circuit Judges.
The limited partners (defendants) of Brookwood Drilling Partnership 1980-I (Brookwood) appeal the district court's summary judgment that they are liable to the Federal Deposit Insurance Corporation (FDIC) for unpaid capital contributions under Okla.Stat.Ann. tit. 54, Sec. 158, Unif. Limited Partnership Act (ULPA) Sec. 17. The issues on appeal are (1) whether the FDIC, as successor to a creditor of Brookwood, can bring an action based upon Sec. 158; if so, (2) whether the suit is barred by a statute of limitations, and (3) whether the limited partners are liable under Sec. 158 in the circumstances presented by this case. We hold that the defendant limited partners waived the first issue by failing to raise it in the district court, and we affirm the district court's ruling that the FDIC's action is not time barred and that the limited partners are liable.
The original limited partnership certificate of Brookwood filed with the Oklahoma Secretary of State, effective April 11, 1980, stated capitalization at one hundred dollars cash. The Brookwood limited partnership agreement was subsequently amended to provide that each limited partnership unit could be purchased by a capital contribution of $75,000 in cash or, alternatively, $20,000 cash and a $55,000 letter of credit to be used to secure a capitalization loan. The amended limited partnership certificate filed effective May 14, 1980, however, stated that all capital contributions made by limited partners, an aggregate of $3,525,000, had been made "in cash" and that no further capital contributions would be required; the certificate did not specify that some portion of the stated contributions were in the form of letters of credit.
On May 14, 1980, the effective date of the amended certificate, Penn Square Bank made the capitalization loan to Brookwood in the amount of $2,585,000, secured by the letters of credit provided by Brookwood's limited partners. When the capitalization loan came due, the bank renewed it as a production loan, released the letters of credit, took a security interest in certain oil and gas wells, and required each limited partner to guarantee a prorated share of the loan. Eventually, after an extension and recollateralization, Brookwood defaulted on this loan. The FDIC (as successor through a series of bank failures) sued the limited partners, seeking the difference between the limited partners' capital contributions as stated in the amended certificate and their actual cash contributions, relying upon Okla.Stat.Ann. tit. 54, Sec. 158, ULPA Sec. 17. The district court granted summary judgment for the FDIC.
We will affirm the grant of summary judgment if it is clear from the record that there are no genuine issues of material fact and the FDIC is entitled to judgment as a matter of law. See Willner v. Budig, 848 F.2d 1032, 1033-34 (10th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989).
The defendant limited partners argue that even if they owe the partnership the sums sought, the FDIC, not having first proceeded against the partnership, may not sue for amounts due to the partnership. Although they did not present this argument to the district court, defendants contend that determining whether the FDIC can properly pursue this cause of action is a question of "standing," which is a nonwaivable jurisdictional issue. We disagree.
Even if the proper construction of Okla.Stat.Ann. tit. 54, Sec. 158, ULPA Sec. 17, is that only a judgment creditor of a limited partnership can sue the limited partners under that provision, the requirement can be, and was, waived by defendants' failure to raise it in the district court. Defendants confuse the doctrine of standing with that of real party in interest.
"The law of standing is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action." C. Wright, The Law of Federal Courts Sec. 13, at 60 (4th ed. 1983) [hereinafter Law of Federal Courts ]. The term "standing," however, is used loosely in many contexts to denote the party with a right to bring a particular cause of action. This practice leads to much confusion when it is necessary to distinguish between "standing" in its most technical sense and the concept of real party in interest under Fed.R.Civ.P. 17(a). See generally 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1542 (1971) [hereinafter 6 Federal Practice and Procedure ]; 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3531, at 338-45 & nn. 6-8 (2d ed. 1984 & Supp.1989) [hereinafter 13 Federal Practice and Procedure ]; Law of Federal Courts Sec. 13, at 59-60 & Sec. 70, at 452-53 & n. 2. Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1147 (6th Cir.1975); see also K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1154 n. 7 (10th Cir.1985) ().
Using the term "standing" to designate real-party-in-interest issues tempts courts to apply standing principles outside the context in which they were developed. The instant case illustrates the problems that can result. Defendants are correct that standing may implicate the Article III requirement of a an issue of subject matter jurisdiction which cannot be waived. However, failure to timely raise a real-party-in-interest defense operates as a waiver. K-B Trucking, 763 F.2d at 1153 n. 2; Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1373-74 (10th Cir.1982); 6 Federal Practice and Procedure Sec. 1542, at 640 & 642-43. Even if standing jurisprudence is helpful by analogy in resolving real-party-in-interest issues, this does not convert real party in interest into a nonwaivable issue of subject matter jurisdiction. 1
Although the cases may refer to the question of whether a creditor can sue to enforce limited partners' obligations to make their stated capital contributions as a question of "standing," properly considered, these cases implicate the principle of the real party in interest under Fed.R.Civ.P. 17(a). Because the real-party-in-interest defense is for the benefit of defendants, they can waive it. Audio-Visual Marketing Corp. v. Omni Corp., 545 F.2d 715, 719 (10th Cir.1976). Since this defense was not asserted in the district court, the limited partners should not be allowed to raise it for the first time on appeal.
The district court held that the six-year statute of limitations contained in 28 U.S.C. Sec. 2415(a) applies to this action and that the FDIC commenced suit well within that limit. 2 The limited partners contend that the district court should have applied the three-year statute of limitations contained in Okla.Stat.Ann. tit. 12, Sec. 95 2d. We disagree.
The general rule is that "[w]here the government acquires a derivative claim ... and that claim is not then barred by the state statute of limitations, the state statute ceases to run against the government at the time of such acquisition." United States v. Sellers, 487 F.2d 1268, 1269 (5th Cir.1973); see also United States v. Essley, 284 F.2d 518, 521 (10th Cir.1960) (); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3652, at 166-71 & n. 5 (2d ed. 1985 & Supp.1989). Defendants make no contention that this cause of action was time-barred when the FDIC acquired it.
In bank failure cases in which the FDIC succeeds to claims to enforce notes, guaranties, or other contracts, we have applied the six-year statute of limitations of Sec. 2415(a). See, e.g., Federal Deposit Ins. Corp. v. Petersen, 770 F.2d 141, 142-43 (10th Cir.1985). A suit to enforce the statutory liability of a limited partner for stated...
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