Winters v. FDIC, Civ. No. 92-94-P-C.

• Citation: 812 F. Supp. 1
• Decision Date: 29 January 1993
• Docket Number: Civ. No. 92-94-P-C.
• Parties: Kent D. WINTERS, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Defendants.
• Court: United States District Courts. 1st Circuit. United States District Court (Maine)

812 F. Supp. 1

Kent D. WINTERS, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Defendants.

Civ. No. 92-94-P-C.

United States District Court, D. Maine.

December 18, 1992.

Memorandum and Order on Motion for Reconsideration January 29, 1993.

Rubin Segal, Portland, ME, for Kent Winters.

James Barns, Drummond & Drummond, Portland, ME, for defendant FDIC.

Terry Fralich, Patricia Lerwick, Norman, Hanson & Detroy, Portland, ME, for defendant One Bancorp.

James Barns, Drummond & Drummond, Portland, ME, for Fleet Bank of Maine.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

A. PROCEDURE

The Court has before it for action at this time the Motion of Defendant Federal Deposit Insurance Corporation (hereinafter "FDIC") for Summary Judgment (Docket No. 16). The motion is supported by Defendant's Memorandum in Support of the Motion (Docket No. 17), a Statement of Material Facts Not in Dispute by Defendant FDIC (Docket No. 18), and the Affidavits of K. McDermott and T.R. Eastaugh (Docket Nos. 19 and 20). Plaintiff has filed no response to the motion.

B. STANDARD FOR SUMMARY JUDGMENT

A motion for summary judgment must be granted 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 a judgment as a matter of law.

Fed.R.Civ.P. 56(c). The Court of Appeals for the First Circuit has articulated the legal standard to be applied in deciding motions for summary judgment:

The movant must adumbrate `an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both `material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976), and `genuine,' in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. `The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Supreme Court has said:

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Anderson, 477 U.S. at 249-59, 106 S.Ct. at 2510-15.

Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir.1989).

It is well-established law in this district that Fed.R.Civ.P. 56 requires the Court to examine the merits of a motion for summary judgment even though a nonmoving party fails to object as required by Local Rule 19(c). Gagne v. Carl Bauer Schraubenfabrick, 595 F.Supp. 1081, 1084 (D.Me.1984); McDermott v. Lehman, 594 F.Supp. 1315 (D.Me.1984). However, a party who fails to object to a motion for summary judgment within ten days, as is required by Local Rule 19(c), is deemed to have consented to the moving party's statement of facts to the extent it is supported by appropriate record citations. Lehman, 594 F.Supp. at 1321.

C. DISCUSSION

The Court has examined carefully the written submissions in support of the motion and CONCLUDES that there is no genuine issue of fact and that the Defendant is entitled to judgment as a matter of law on the basis of its contention that no "change of control event" had occurred prior to the failure of Maine Savings Bank (hereinafter "MSB") and that Plaintiff, therefore, has no provable claim against the Receiver under the employment contract that existed between Plaintiff and MSB prior to the failure for benefits payable upon a change in control as provided for in the contract. The contract clearly provides that the benefits sought to be recovered by the Complaint become payable only upon the occurrence of a "change in control event" as those events are described in paragraph 2 of the agreement between Plaintiff and MSB dated November 1, 1988. Exhibit "A" to Docket No. 18. It is established by the Statement of Material Facts (Docket No. 18), in paragraphs 8-11, that no change of control event, as defined in the agreement, had occurred prior to February 1, 1991, the date of MSB's failure. Those assertions of fact are established by appropriate supporting references to materials of evidentiary quality in the record on the Motion for Summary Judgment.¹

It is, therefore, established on this record, without dispute, that the operative factual event — that is, a "change in control event" as defined in Plaintiff's employment contract with MSB — has never occurred. The language of the contract defining such event is clear and unambiguous. See Portland Valve, Inc. v. Rockwood Systems, 460 A.2d 1383, 1387-88 (Me.1983). Accordingly, there can be no genuine issue of material fact as to whether Plaintiff is entitled to the benefits sought by the Complaint under the employment agreement. It is clear that the Defendant is entitled to judgment as a matter of law.

Accordingly, it is hereby ORDERED that Defendant FDIC's Motion for Summary Judgment be, and it is hereby, GRANTED. Judgment to enter.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR RECONSIDERATION

Judgment was entered against Plaintiff in this case on December 18, 1992 (Docket No. 31) in accordance with the Court's Memorandum of Decision and Order on Defendant's Motion for Summary Judgment (Docket No. 30). Plaintiff had not filed a timely response to the motion, and in accordance with the dictates of Local Rule 19(b), the Court deemed him to have consented to Defendant's statement of material facts. Based on the undisputed facts set forth in the record, the Court then determined that there remained no genuine issue of material fact and that Defendant was entitled to judgment as a matter of law. Now before the Court is Plaintiff's motion for reconsideration (Docket Nos. 33 and 34).

Although judgment has entered for Defendant Federal Deposit Insurance Corporation (FDIC), the Court's ruling on the motion for summary judgment is an interlocutory order because there remain outstanding claims against Defendant One Bancorp, which is subject to a stay in bankruptcy. See Greene v. Union Mutual Life Insurance Co., 764 F.2d 19, 22 (1st Cir. 1985). When determining whether to grant reconsideration of an interlocutory order, the Court must determine whether the interests of justice require the requested action. Id. The Court of Appeals has recently articulated seven factors which trial courts should consider in determining whether to grant reconsideration. The list, described as illustrative rather than inclusive, includes:

(1) the nature of the case, (2) the degree of tardiness, (3) the reasons underlying the tardiness, (4) the character of the omission, (5) the existence vel non of cognizable prejudice to the nonmovant in consequence of the omission, (6) the effect of granting (or denying) the motion on the administration of justice, and (7) whether the belated filing would, in any event, be more than an empty exercise.

United States v. Roberts, 978 F.2d 17, 21-22 (1st Cir.1992). The Court will examine the facts presented here in light of this teaching.

1. The Nature of the Case. This is a civil case seeking to "contest the determination made by Defendant Federal Deposit Insurance Corporation ... to disallow the claim for severance pay and the claim for employment contract payments which was brought by Plaintiff...." Plaintiff was employed as a Vice-President of Defendant FDIC's predecessor, Maine Savings Bank, a subsidiary of Defendant One Bancorp. After Maine Savings failed, on February 1, 1991, FDIC was appointed its receiver, and on the same date, the FDIC entered into a purchase and assumption agreement with Fleet Bank of Maine,¹ under which certain of Maine Savings Banks assets and liabilities were transferred to Fleet. While Plaintiff's claims are plainly important to him, they do not have any overarching social significance as did vindication of the serious criminal accusations of drug-dealing addressed by the Court of Appeals in Roberts. This factor, therefore, does not weigh in Plaintiff's favor.

2. The Degree of Tardiness. Plaintiff filed his opposition to the motion for summary judgment on December 16, 1992. (Docket No. 26). Defendant's motion had been filed on November 27. Thus, under Local Rule 19(c), the opposition was due on December 14, 1992. See Cardente v. Fleet Bank, 146 F.R.D. 13 (D.Me.1993); Andrew Corp. v. Gabriel Electronics, Inc., 735 F.Supp. 24, 27 n. 1 (D.Me.1990). The fact that Plaintiff's delay in filing the objection was slight, only two days, weighs in favor of allowing reconsideration.

3. The Reasons for the Tardiness. Plaintiff's counsel asserts that he misunderstood the operation of Local Rule 19 in conjunction with Fed.R.Civ.P. 6(a) and 6(e), and therefore miscalculated the date upon which his response was due. Specifically, counsel argues that he thought that the Local Rule in combination with Federal Rule 6 permitted three business days for mailing, excluding intervening weekends and holidays, and 10 business days for responding, also excluding intervening weekends and holidays....