Hartong v. Blue Valley Federal Sav. & Loan Ass'n
| Decision Date | 09 July 1990 |
| Docket Number | No. 89-1058-CV-W-3.,89-1058-CV-W-3. |
| Citation | 767 F. Supp. 1017 |
| Parties | William A. HARTONG and Linda Hartong, Plaintiffs, v. BLUE VALLEY FEDERAL SAVINGS & LOAN ASSOCIATION, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Robert E. Gould, Gould & Thompson, Donald E. Bucher, Moore & Bucher, P.C., Kansas City, Mo., for plaintiffs.
James C. Wirken, Troy L. Daugherty, Wirken & King, Kansas City, Mo., Anthony Joseph Romano, David A. Welte, Polsinelli, White, Vardeman & Shalton, Kansas City, Mo., for intervenors-plaintiffs.
Brian B. Myers, Jerome D. Riffel, William C. Odle, Lathrop & Norquist, Thaddeus G. Fenton, RTC Legal Div., Edward H. Funston, U.S. Attorney's Office, Kansas City, Mo., Michael Truscott, U.S. Dept. of Justice, Torts Branch, Civ. Div., Edward J. O'Meara, Office of Thrift Supervision, Office of the Chief Counsel, Washington, D.C., for defendants.
Pending before the Court are the following motions: 1) a motion to dismiss plaintiffs' complaint filed by defendants Federal Deposit Insurance Corporation ("FDIC") and Blue Valley Federal Savings and Loan Association (the "Association");1 2) a motion to intervene pursuant to Rule 24, Fed. R.Civ.P., filed by Dr. Peter C. Boylan and Carroll J. Boylan; 3) a motion to join as party plaintiffs pursuant to Rule 20(a), Fed.R.Civ.P., filed by Mary Bishop and Harle Bishop; and 4) a motion to join as party plaintiffs pursuant to Rule 20(a) filed by Sally Burke and Jackson Burke, Jr.
On October 2, 1989, plaintiffs filed their Petition for Damages (the "Complaint") in the Circuit Court of Jackson County, Missouri, seeking damages against defendants for breach of contract, breach of duty of good faith and fair dealing, and prima facia tort. The case was removed to this Court on November 9, 1989. Plaintiffs make the following allegations.
Plaintiff William Hartong is a general partner in General's Plaza Partnership (the "Partnership"), a Missouri general partnership. Other members of the Partnership include Mary Bishop, Carroll Boylan, Jack Burke, Jr., and the Estate of Jack Burke, Sr. On April 20, 1987, the Partnership executed a promissory note evidencing a real estate loan made by the Association to the Partnership for the purpose of funding the development of a shopping center on partnership property in Independence, Missouri. The loan was secured by a Deed of Trust and Security Agreement covering General's Plaza Shopping Center. In order to further secure the promissory note, the Association required all partners and spouses of married partners to execute personal guarantees.
Plaintiffs allege that on April 3, 1989, they entered into a written contract with the Association under which the Association agreed to release the Partnership, the partners and the guarantors from all liability under the note in exchange for a deed in lieu of foreclosure and payment of the sum of $264,733.00. This contract is allegedly evidenced by two letters. Curtis Beerman, Senior Vice President for the Association, spelled out the terms of the alleged agreement in a letter dated March 24, 1989. This letter states in pertinent part:
In a letter dated April 3, 1989, the partners accepted the proposal outlined by Curtis Beerman. Plaintiffs charge that the Association now refuses to comply with the alleged agreement and seek to recover monetary damages from defendants.
Defendants have moved to dismiss plaintiffs' Complaint, arguing that plaintiffs lack legal capacity to bring this action because they have failed to join all of the general partners of the Partnership as parties-plaintiffs. Defendants have moved to dismiss plaintiffs' Complaint against defendant FDIC, contending it is not a proper defendant. Finally, defendants maintain that Count III of plaintiffs' Complaint should be dismissed because plaintiffs have failed to exhaust their administrative remedies under the Federal Tort Claims Act.
Defendants have moved for the dismissal of plaintiffs' Complaint in its entirety, arguing that plaintiffs lack legal capacity to bring this action because they have failed to join as plaintiffs all of the general partners of the Partnership. Generally, all partners are necessary parties-plaintiff in actions to enforce an obligation due the partnership, and a partner may not sue in his own name on a cause of action accruing to the partnership. Wittels v. Dubinsky, 343 S.W.2d 644, 645 (Mo.App.1961). Defendants contend that this action is a partnership cause of action, and plaintiffs' Complaint must be dismissed unless all the partners are joined as parties.
Plaintiffs counter that this is not an action to enforce an obligation due the Partnership. Instead, plaintiffs characterize this action as one to enforce a personal obligation owed to the individual guarantors. Plaintiffs maintain that the guaranty relationship between them and the Association was a contractual relationship separate and distinct from the Partnership's relationship with the Association. According to plaintiffs, this suit arises solely out of the alleged agreement between the Association and the guarantors regarding their personal liability under the guaranty.
This debate, while interesting, is academic. The arguments raised by the parties are relevant only with regard to the question whether plaintiff William Hartong, a general partner of the Partnership, has the legal capacity to maintain this cause of action. The parties have ignored the fact that plaintiff Linda Hartong clearly has legal standing to maintain this action.
Linda Hartong was not a partner in the Partnership. Her interest arises solely from the personal guarantee which she executed to secure the promissory note. Her action cannot be construed as a partnership cause of action. The requirements of partnership law cannot preclude a nonpartner from pursuing an action on her contract of guaranty even though that guaranty secured a loan made to a partnership. Therefore, defendants' motion to dismiss plaintiffs' Complaint on this ground is denied.
Plaintiffs refer in their Complaint to the FDIC as the receiver of the Association. In their motion to dismiss, defendants assert that the FDIC is not in fact the "receiver" of the Association. The FDIC is simply the managing agent for the RTC, the Association's Conservator.2 Defendants have moved that plaintiffs' Complaint against the FDIC be dismissed because the RTC, and not the FDIC, is the proper party defendant in this action. Plaintiffs accordingly dismissed their Complaint against the Association and amended the Complaint to join the RTC as a defendant.
In their suggestions in opposition to defendants' motion to dismiss, however, plaintiffs assert that despite the joinder of the RTC as a party defendant, the FDIC is still a proper party defendant. Plaintiffs have clarified their claim against the FDIC, stating that they maintain the FDIC is liable for breach of the alleged contract entered into between the Association and the guarantors. Plaintiffs apparently contend this liability arises either because the FDIC knew of and authorized the alleged contract between the Association and the guarantors, or because an agency relationship existed between the Association and the FDIC wherein the FDIC acted as an agent of the Association. In light of these clarifications, defendants filed reply suggestions asserting that plaintiffs' Complaint fails to state a claim against the FDIC upon which relief can be granted.
Upon the arguments presented and the current record, the Court declines to find that plaintiffs can prove no set of facts in support of their breach of contract claim against the FDIC which would entitle them to relief. See Loge v. United States, 662 F.2d 1268, 1270 (8th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982).3 Accordingly, defendants' motion to dismiss plaintiffs' Complaint against the FDIC is denied.
Count III of the Complaint raises a claim against defendants FDIC and RTC in tort. Defendants argue the Court lacks subject matter jurisdiction over a tort claim against the FDIC because plaintiffs failed to exhaust their administrative remedies under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. ("FTCA") prior to commencing this action.4
Plaintiffs concede they did not file an administrative claim with the FDIC regarding the alleged facts underlying this action. It is plaintiffs' position that administrative exhaustion pursuant to the FTCA is necessary only if the FDIC is acting in its corporate capacity.5 Plaintiffs maintain that in the instant case the FDIC is acting in its receivership capacity and therefore no exhaustion is required. In other words, plaintiffs contend that the FDIC is not a federal agency for the purposes of the FTCA when it is acting in a receivership capacity.
Defendants reply that the FDIC is not acting as the "receiver" of the Association. According to defendants, the FDIC, as the managing agent of the RTC, is acting only in its corporate capacity. Defendants further argue that even if the FDIC is acting in its receivership capacity, it is a federal agency for the purposes of the FTCA.
In support of their position that the FDIC, acting as a receiver, is an agency for purposes of the FTCA, defendants cite FDIC...
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