Federal Deposit Ins. Corp. v. TWT Exploration Co.

• Decision Date: 14 January 1986
• Docket Number: No. 83-1857-B.,83-1857-B.
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, a corporate agency of the United States, Plaintiff, v. TWT EXPLORATION COMPANY, INC., Robert J. Piner, a/k/a R.J. Pinder, Charles E. Carter, Bob Alexander and William A. Jenkins, Defendants. Bob ALEXANDER, Defendant and Third-Party Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Penn Square Bank N.A., Third-Party Defendant.
• Court: U.S. District Court — Western District of Oklahoma

626 F. Supp. 149

FEDERAL DEPOSIT INSURANCE CORPORATION, in its corporate capacity, a corporate agency of the United States, Plaintiff, v. TWT EXPLORATION COMPANY, INC., Robert J. Piner, a/k/a R.J. Pinder, Charles E. Carter, Bob Alexander and William A. Jenkins, Defendants.

Bob ALEXANDER, Defendant and Third-Party Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of Penn Square Bank N.A., Third-Party Defendant.

No. 83-1857-B.

United States District Court, W.D. Oklahoma.

December 27, 1985.

Stipulation January 14, 1986.

William J. Reifman and Barbara Bertok of Mayer, Brown & Platt, Chicago, Ill., Jimmy Goodman of Crowe & Dunlevy, Oklahoma City, Okl., for plaintiff.

Michael E. Joseph and W. Chris Coleman of McAfee & Taft, Oklahoma City, Okl., for defendant and third-party plaintiff.

Sidney G. Dunagan of Gable & Gotwals, Tulsa, Okl., for third-party defendant.

BOHANON, District Judge.

This matter is now before the court upon three separate motions for summary judgment. The plaintiff, Federal Deposit Insurance Corporation, in its corporate capacity ("Corporate FDIC"), seeks judgment as to liability on Count V of its Amended Complaint against defendant Bob Alexander, and on Count VI against defendant William A. Jenkins, on the basis of these defendants' alleged unconditional, unlimited guarantees of $9,050,106.59 worth of indebtedness of an Oklahoma corporation, J.P. Exploration, Inc. ("J.P. Exploration"). Bob Alexander has himself filed a motion for summary judgment in his favor on Corporate FDIC's claims against him. Lastly, the third-party defendant Federal Deposit Insurance Corporation, as Receiver of Penn Square Bank, N.A. ("Receiver FDIC"),¹ moves for summary judgment against Alexander on his third-party complaint which seeks to hold Receiver FDIC accountable for alleged wrongdoing on the part of either the now defunct Penn Square Bank or Receiver FDIC itself in connection with the same guarantees used by Corporate FDIC as the basis for its claims against Alexander.

The court recognizes from the outset that Corporate FDIC and Receiver FDIC are separate and distinct legal entities. The possibility that FDIC may act simultaneously in a dual capacity under its governing statutes was recognized as early as 1961 in Freeling v. Sebring, 296 F.2d 244 (10th Cir.1961); see also Jones v. Federal Deposit Ins. Corp., 748 F.2d 1400, 1402 (10th Cir.1984); Federal Deposit Ins. Corp. v. Ashley, 585 F.2d 157 (6th Cir. 1978); Federal Deposit Ins. Corp. v. Godshall, 558 F.2d 220 (4th Cir.1977); Federal Deposit Ins. Corp. v. Glickman, 450 F.2d 416 (9th Cir.1971). The legal distinction between the two facets of FDIC's operations as corporate insurer and as receiver must be recognized even where a note is transferred from the one branch of FDIC to the other and "FDIC did not maintain separate offices for its receiver and insuror capacities, and ... the same FDIC personnel who acted for the FDIC as receiver also acted for the FDIC as corporate insuror." Gunter v. Hutcheson, 674 F.2d 862, 873-74 (11th Cir.1982); 12 U.S.C. § 1823(d).

In the present case the difference in functions is much easier to perceive than in Gunter since Corporate FDIC did not acquire the notes and guarantees underlying the suit directly from Receiver FDIC but rather from Continental Illinois National Bank and Trust Company of Chicago ("Continental") which had originally participated in the loans made by Penn Square Bank, N.A. ("Penn Square"). After Penn Square was declared insolvent, Receiver FDIC agreed to transfer all of the defunct bank's right, title and interest in the loans to Continental on July 28, 1983. Thereafter on August 3, 1983, Continental commenced this suit, though Alexander and Jenkins were not joined as defendants until the filing of an amended complaint on March 19, 1984. When Continental itself subsequently became unstable, the subject loans were purchased by Corporate FDIC on September 26, 1984, as part of the government's corrective action or "bailout" to protect the national banking system from the possible collapse of that bank. Based on this last transfer of interest, this court, on April 8, 1985, granted Continental's Motion for Substitution of Party-Plaintiff pursuant to F.R.Civ.P. 25(c), and since that date Corporate FDIC alone has been the plaintiff in this cause. Receiver FDIC did not become a party to the action until April 29, 1985, when Alexander filed his third-party complaint.

This third-party complaint must be dismissed outright because it fails to allege facts supporting this court's jurisdiction. The pleading, which asserts several claims sounding in tort against Receiver FDIC, states that this court has jurisdiction under 12 U.S.C. § 1819 which allows FDIC to "sue and be sued" and grants United States courts original jurisdiction of "all suits of a civil nature at common law or in equity to which FDIC ... shall be a party...." The FDIC is, however, a federal agency within the meaning of the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and Alexander's action, therefore, must proceed, if at all, directly against the United States in conformity with the requirements of the FTCA. Freeling v. Federal Deposit Ins. Corp., 221 F.Supp. 955 (W.D.Okla.1962) affirmed 326 F.2d 971 (10th Cir.1963); Federal Deposit Ins. Corp. v. Citizens Bank & Trust Co., 592 F.2d 364 (7th Cir.1979); Safeway Portland E.F.C.U. v. Federal Deposit Ins. Corp., 506 F.2d 1213 (9th Cir.1974); Segarra Ocasio v. Banco Regional de Bayamon, 581 F.Supp. 1255 (D.Puerto Rico, 1984); 28 U.S.C. § 2679(a). Alexander has failed to plead jurisdiction under the FTCA and also has not alleged facts constituting compliance with the procedural requirements of that Act, including the filing of an administrative claim with the appropriate federal agency and a final denial of the administrative claim by that agency. 28 U.S.C. § 2675(a). This court, therefore, lacks jurisdiction over the subject matter of Alexander's third-party complaint, and it must be dismissed. Lann v. Hill, 436 F.Supp. 463 (W.D.Okla.1977); F.R.Civ.P. 12(h)(3). Receiver FDIC's motion for summary judgment on the third-party complaint will be mooted by this dismissal.

Turning to the remaining motions, the entry of summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." F.R.Civ.P. 56(c). "In determining whether summary judgment is proper, a court ordinarily must look at the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party." Harlow v. Fitzgerald, 457 U.S. 800, 816 n. 26, 102 S.Ct. 2727, 2737 n. 26, 73 L.Ed.2d 396 (1982); Norton v. Liddel, 620 F.2d 1375 (10th Cir. 1980). In the present case, Alexander is both a moving and an opposing party, but the court deems it appropriate in the circumstances to give him the benefit of the doubt with respect to any facts alleged by him. In accordance with these principles, the relevant facts, only for the purposes of resolution of the pending motions, are as follows:

In 1980, J.P. Exploration was incorporated. Charles E. Carter, R.J. Pinder,² Bob Alexander and William A. Jenkins were named as directors of the corporation which was intended to operate as an oil and gas drilling company. Prior to the incorporation of J.P. Exploration, Alexander had already formed an oil and gas operating company, Alexander Energy Company. Because Pinder wanted to establish ties to Alexander Energy as a source of potential business for the new drilling company, Alexander agreed to participate in J.P. Exploration to the extent of a 10 percent shareholder.

In October of 1980, the four directors of J.P. Exploration met in Pinder's office in Oklahoma City to discuss corporate business, including the acquisition of additional drilling rigs. Alexander opposed the proposed acquisitions and stated that he was unwilling to finance any rigs or lend his personal credit to the financing of rigs. He did, however, agree to guarantee 10 percent of a $500,000 line of credit from Penn Square and signed a blank form of guaranty which was undated, did not state that it was furnished to guarantee debts of J.P. Exploration and did not bear on its face any express limitation of the amount of liability. According to Alexander, he orally advised Pinder that the guaranty should be completed to provide that Alexander's liability was limited to 10 percent of the $500,000 working capital line of credit, or $50,000.

The guaranty Alexander signed was delivered to Penn Square and shortly after the October, 1980, meeting Alexander called William G.P. Patterson, a loan officer at Penn Square, and confirmed with him that the guaranty was limited to 10 percent of a $500,000 working capital line of credit. Patterson also agreed to send Alexander a copy of the guaranty, but failed to do so.

Alexander never received any dividends or other financial benefits from J.P. Exploration and, in the late summer of 1981, Alexander resigned his position as director of the company and surrendered his stock in the company upon the advice of counsel in order to avoid potential conflicts of interest with Alexander Energy Corporation, which was going public. Alexander sent Patterson a copy of his letter of resignation to Pinder, dated July 27, 1981, and notified Patterson by telephone of his resignation and surrender of stock. Alexander asked Patterson that he be released and discharged from all existing and future liability under his guaranty and Patterson orally agreed, assuring Alexander that he was never liable for any J.P. Exploration debt anyway, that Penn Square had never relied on the guaranty in making loans to J.P. Exploration, and that the guaranty should not be in any of Penn Square's loan...