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MITCHELL v. GREENWOOD BANK OF BETHEL

July 17, 1993

ROBERT KIMBERLY MITCHELL, JR., Plaintiff,
v.
GREENWOOD BANK OF BETHEL, INC., CHARLES V. AUSTIN, JAMES M. MANNION, ARTHUR J. MANNION, JR., EDWARD J. PARADISE, SR., ANTHONY E. CARALUZZI, JR., MICHAEL S. CARDILLO, SR., JOHN D. CARROLL, ELSIE DEL MONTE, ROBERT G. KOVACS, MARY G. McCOLLAM and CHARLES A. STECK, III, Defendants.


McAvoy


The opinion of the court was delivered by: THOMAS J. MCAVOY

DECISION and ORDER

 I. FACTS

 This action, commenced on June 21, 1991, was originally brought by First Albany Corporation and Robert Kimberly Mitchell, Jr. ("Mitchell" or "plaintiff") against Greenwood Bank of Bethel, Inc. ("Greenwood Bank"), its present officers and directors and one former director.... Thereafter, First Albany Corporation settled with all defendants and withdrew from the lawsuit.

 A series of stipulations and conferences followed.... Mitchell, as the sole remaining plaintiff, finally served his Amended Complaint on September 23, 1992, therein setting forth five causes of action alleging various securities and common law violations.... By stipulation dated October 8, 1992, plaintiff and defendant Greenwood Bank, and its directors and officers, by and through their attorneys, agreed that defendants would have until December 16, 1992 to answer or otherwise plead to the Amended Complaint.

 On December 17, 1992, the Federal Deposit Insurance Corporation ("FDIC") submitted a "Verified Application For Substitution Of Party Defendant And Application For Stay." This court granted that application on December 19, 1992, effectively staying the instant action and substituting the FDIC as receiver for Greenwood Bank.

 Plaintiff, by his attorneys, Fritzsch & Nagel, has now duly moved for an Order for a default judgment pursuant to Federal Rule of Civil Procedure 54.... Plaintiff asserts that defendants are in default as a result of their failure to answer or plead by December 16, 1992 and, impliedly, that the action is no longer stayed pursuant to the court's December 19, 1992 order ("Order").

 For the reasons that follow, the stay is no longer in effect. Nevertheless, the court denies plaintiff's motion for a default judgment and directs defendants to answer the Amended Complaint.

 II. DISCUSSION

 The applicable provisions of the December 19, 1992 Order which effectively stayed the instant action *fn1" are as follows:

 
ORDERED, that this action in which the FDIC, Receiver for Greenwood Bank, is a party defendant be stayed as follows:
 
(a) up to and including such period which during which claims against the Bank and/or FDIC as Receiver thereof may be filed with the FDIC pursuant to 12 U.S.C. Section 1821(d)(3);
 
. . .
 
(emphasis added).

 Because the period of time described in subparagraph (a) has expired and plaintiff has satisfied the requirements of subparagraph (c), the court ...


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