Marietta Franklin Securities Co. v. Muldoon, No. 90-CV-565.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtGEORGE C. SMITH
Citation770 F. Supp. 1212
Decision Date25 July 1991
Docket NumberNo. 90-CV-565.
PartiesMARIETTA FRANKLIN SECURITIES CO., Plaintiff, v. Larry MULDOON, District Director of the Office of Thrift Supervision, Defendant.

770 F. Supp. 1212

MARIETTA FRANKLIN SECURITIES CO., Plaintiff,
v.
Larry MULDOON, District Director of the Office of Thrift Supervision, Defendant.

No. 90-CV-565.

United States District Court, S.D. Ohio.

July 25, 1991.


770 F. Supp. 1213

Stanley Lee Myers, Columbus, Ohio, for plaintiff.

Albert Raymond Ritcher, Asst. U.S. Atty., Columbus, Ohio, and Elizabeth Moore, Office of Thrift Supervision, Washington, D.C., for defendant.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This matter is before the Court upon the motion of the Defendant, Larry Muldoon, District Director of the Office of Thrift Supervision (hereinafter "OTS") to Dismiss or for Summary Judgment filed September 28, 1990. Defendant OTS's motion was submitted the same day with two other filings; namely, a Request for Hearing on Defendant's Motion to Dismiss or for Summary Judgment, as well as a Notice of Filing of the Administrative Record. Plaintiff, Pioneer Federal Savings and Loan Association, (hereinafter "Pioneer")1 filed a response on October 17, 1990, which was a memorandum contra Plaintiff Office of Thrift Supervision's motion to Dismiss or for Summary Judgment. These two motions were followed by Pioneer's Motion for Temporary Restraining Order and OTS's Response filed October 19, 1990 and October

770 F. Supp. 1214
23, 1990 respectively.2 On November 2 and 7, 1990, Pioneer submitted Corrected Supplemental Memoranda concerning their opposition to OTS's motion to Dismiss/Summary judgment. OTS filed a Reply Memorandum In Support of their Motion to Dismiss or for Summary Judgment on November 21, 1990. Pioneer filed a Response on December 11, 1990, for which in a series of three more motions, the parties disagreed as to whether or not said supplemental memos following OTS's Reply should be permitted. This Court, after reviewing all of the pleadings within this matter, now turns it attention to the issues presented herein

FACTS

Pioneer Savings and Loan Association is a state chartered savings and loan association with deposits insured by the Federal Government. On June 29, 1990, the Director of the Office of Thrift Supervision appointed Resolution Trust Corporation ("RTC") as receiver for Pioneer after OTS determined that the institution was in "an unsafe or unsound condition to transact business, including having substantial insufficient capital or otherwise." (AR 3-4); See also 12 U.S.C. § 1464(d)(2)(C)(iii). At that same time, the Director of OTS signed orders chartering a new savings and loan association, Pioneer Federal Savings and Loan Association ("New Pioneer") and with New Pioneer's consent, appointed the RTC as conservator for New Pioneer to administer certain of Pioneer's assets. (AR pages 5-10). The Decision and Order of the Director of OTS was based upon the recommendation, memorandum, and supporting materials prepared by the OTS staff. (AR 15-22; 41-48). It was from these concerns that the Director of OTS appointed the RTC as receiver for Pioneer. (AR 41-48).

On August 9, 1989, the United States Congress enacted the Financial Institutions Reform, Recovery and Enforcement Act of 1989, ("FIRREA") Pub.L. No. 101-73, 103 Stat. 183. This enactment was an effort by the United States Congress, through the new agencies created, to bring in line and properly address this Country's ever increasing problem of failed financial institutions. FIRREA resulted in many significant changes in both the structure and regulation of savings and loans or "thrift" institutions. The Federal Home Loan Bank Board ("FHLBB") and the Federal Savings and Loan Insurance Corporation ("FSLIC") were both abolished. In their place other agencies, including OTS, took over the functions previously administered by FHLBB and FSLIC. Also created was the Savings Association Insurance Fund ("SAIF") which is maintained under the jurisdiction of the Federal Deposit Insurance Corporation ("FDIC"). SAIF insures deposits within thrift institutions.

OTS is an office within the Department of the Treasury. OTS, acting through its Director, serves as the primary federal regulator of savings associations which are insured by SAIF. 12 U.S.C. § 1463. The Director is vested with the authority to appoint conservators or receivers for trouble savings and loans. 12 U.S.C. § 1464(d)(2)(E). The Director may appoint said conservator or receiver ex parte. Id. The Director may appoint said conservator or receiver for state associations if one of six criteria are met. 12 U.S.C. § 1464(d)(2)(C). In this particular case, the Director relied upon 12 U.S.C. § 1464(d)(2)(C)(iii) referenced above.

The RTC is a federal corporation under the management of FDIC. 12 U.S.C. § 1441a(b)(1). The Director of OTS, until August 9, 1992, is required to appoint the RTC as receiver for all failed savings associations. Id. see also §§ 1464(d)(2)(H)(ii); 1441a(b)(3)(A). On July 30, 1990, Pioneer and its holding company Marietta filed this action challenging the Director's decision.

STANDARD OF REVIEW

In considering this motion, the Court is mindful that the standard for summary judgment "mirrors the standard for a directed

770 F. Supp. 1215
verdict under Rule 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234-35, 88 L.Ed. 239 (1943)). Thus, the Supreme Court concluded in Anderson that a judge considering a motion for summary judgment must "ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair minded jury could return a verdict for the plaintiff on the evidence presented." 477 U.S. at 252, 106 S.Ct. at 2512

Rule 56(c) of the Federal Rules of Civil Procedure provides in pertinent part:

The judgment sought shall be rendered forthwith if 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 judgment as a matter of law.

In essence, the inquiry is whether the evidence presented a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

Such an inquiry necessarily implicates the evidentiary standard of proof that would apply at the trial on the merits. As a result, the Court must view the evidence presented through the prism of the substantive evidentiary burden. Rule 56(e) therefore "requires the nonmoving party to go beyond the pleadings and by their own affidavits, or by the `depositions, answers to interrogatories, and admissions on file', designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

In Banks v. Rockwell International N.Am. Aircraft Operations, 666 F.Supp. 1053 (S.D. Ohio 1987) (Graham, J.), this district enunciated the importance of granting summary judgments in appropriate situations by stating as follows: "Although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules which are designed `to secure the just, speedy and inexpensive determination of every action.'" Id. at 1056 (citing Celotex Corp. v. Catrett, 477 U.S. at 327, 106 S.Ct. at 2555, (quoting Fed. R.Civ.P. 1)); Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Thus, the mere existence of a scintilla of evidence in support of a plaintiff's claim is insufficient — there must be evidence upon which a jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. Having discussed the Rule 56 standard of review, the Court now turns to the merits.

LAW AND ANALYSIS

A. JURISDICTION

12 U.S.C. § 1464(d)(2)(E) provides in pertinent part:

The Director shall have exclusive power and jurisdiction to appoint a conservator or receiver for a Federal savings association. If, in the opinion of the Director, a ground for the appointment of a conservator or receiver for a savings association exists, the Director is authorized to appoint ex parte and without notice a conservator or receiver for the savings association. In the event of such appointment, the association may, within 30 days thereafter, bring an action in the United States district court for the judicial district in which the home office of such association is located, or in the United States District Court for the District of Columbia, for an order requiring the Director to remove such conservator or receiver, and the court shall upon the
770 F. Supp. 1216
merits dismiss such action or direct the Director to remove such conservator or receiver. Upon the commencement of such an action, the court having jurisdiction of any other action or proceeding authorized under this subsection to which the association is a party shall stay such action or proceeding during the pendency of the action for removal of the conservator or receiver.

Within this section, it is specifically stated that "the association may, within 30 days thereafter, bring an action ..." Id. (Emphasis Added). It is OTS' contention that in filing this action on the thirty first day, (the thirtieth day falling on a Sunday) this action necessarily is time-barred3 causing this Court to lose jurisdiction. Pioneer vehemently objects.

In support of their claims, OTS relies upon Hilliard v. United States Postal...

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1 practice notes
  • In re Amdura Corp., Bankruptcy No. 90 B 03811 E-90 B 03816 E
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • June 29, 1992
    ...Even within Butcher's own circuit, courts have declined to follow that appellate decision (Marietta Franklin Securities Co. v. Muldoon, 770 F.Supp. 1212 (S.D.Ohio 1991)). The Marietta court declared "While this Court recognizes its duty to follow the precedents established within the 6th Ci......
1 cases
  • In re Amdura Corp., Bankruptcy No. 90 B 03811 E-90 B 03816 E
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • June 29, 1992
    ...Even within Butcher's own circuit, courts have declined to follow that appellate decision (Marietta Franklin Securities Co. v. Muldoon, 770 F.Supp. 1212 (S.D.Ohio 1991)). The Marietta court declared "While this Court recognizes its duty to follow the precedents established within the 6th Ci......

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