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FDIC v. PELLETREAU & PELLETREAU

June 3, 1997

FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF UNION SAVINGS BANK, Plaintiff, against PELLETREAU & PELLETREAU, JOHN B. BROWN, CHARLES E. FALKNER, EDWARD KRUG, EDWARD McGOVERN, DUDLEY W. NORTON, LOUIS A. PFEIFLE, PETER V. SNYDER, and CARROLL M. SWEZEY, Defendants.


The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 This action was commenced on August 25, 1995 by the plaintiff Federal Deposit Insurance Corp. ("FDIC") in its capacity as receiver of the Union Savings Bank ("Union"). The complaint alleges that the defendants, who were officers, trustees, committee members of Union, as well as Union's general and regulatory counsel, failed to properly manage the bank's joint venture real estate lending activity, and that as a result, the bank sustained over 60 million dollars in losses and was forced to close its doors. The defendant Pelletreau & Pelletreau ("Pelletreau"), which served as Union's general counsel, regulatory counsel and transaction counsel on the joint ventures at issue, moves the Court for an Order pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Seventeenth, Eighteenth and Nineteenth causes of action. In addition, the plaintiff moves to strike the Third, Fourth, Sixth, Seventh and Eighth affirmative defenses of defendants Edward McGovern, Dudley W. Norton, and Louis A. Pfeifle; the Second and Fifth affirmative defenses of defendants Charles E. Faulkner and Edward Krug; the Second, Fifth, Sixth, Seventh, Eighth and, to the extent applicable, the Ninth affirmative defenses of defendant Peter V. Snyder; the Second, Third, Fourth, Fifth, Sixth and, to the extent applicable, the Ninth affirmative defenses of defendants John B. Brown and Carroll M. Swezey; and the Third affirmative defense of defendant Pelletreau & Pelletreau, all pursuant to Fed. R. Civ. P. 12(f).

 Previously, the defendants Charles E. Falkner and Edward Krug, former officers of Union (the "officer defendants"), and the defendants John Brown, Edward McGovern, Dudley W. Norton, Louis A. Pfeifle and Carroll M. Swezey, former trustees of Union (the "trustee defendants"), moved the Court for an Order pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss portions of the complaint against them. The officer and trustee defendants also made a motion for a more definite statement of the claims against them pursuant to Fed. R. Civ. P. 12(e). By an Order dated February 24, 1996 (the "Order"), familiarity with which is assumed, the Court denied the defendants' motions to dismiss portions of the complaint pursuant to Rule 12(b)(6), but granted the defendants' motions for a more definite statement, pursuant to Rule 12(e):

 
to the extent that the plaintiff is to [1] serve and file an amended complaint containing a more definite statement of the specific laws it claims were violated by the defendants, as well as [2] a more definite statement distinguishing which of the causes of actions and which of the wrongful acts refer to each defendant.

 Order at 4. As a result, the plaintiff filed an amended complaint on March 20, 1996.

 The amended complaint, brought by the FDIC in its capacity as Receiver of Union and in furtherance of its legislative mandate to maximize recovery of all damages sustained by failed banks, alleges against each individual defendant: negligence, breach of fiduciary duty and violation of applicable statutes and regulations against the former officers and trustees of Union. These claims arise out of the defendants' blanket alleged failure to properly execute, control and supervise Union's lending function. The amended complaint also alleges against Union's outside law firm, Pelletreau, attorney malpractice, breach of contract and breach of fiduciary duty for its failure to properly render legal advice and services to Union. Finally, the amended complaint alleges fraud, self-dealing, breach of fiduciary duty and violation of applicable statutes and regulations against Charles E. Falkner and T. John Folks for improperly extracting personal benefits from the Bank's participation in at least one of the joint ventures.

 On June 17, 1996, the action was dismissed against defendant Ronald M. Bentley. On April 17, 1997, this action was discontinued nunc pro tunc as to defendant T. John Folks. A Suggestion of Death was filed on May 16, 1997 as to defendants Dudley W. Norton and Louis A. Pfeifle. During oral argument on this matter, the plaintiff's oral application to substitute Alfred Volkmann, as executor of the estate of Dudley W. Norton, and John Hart, as executor of the estate of Louis A. Pfeifle, for the deceased defendants was granted. In addition, J.C. Boggs of Butera & Andrews, attorneys for defendants Edward McGovern, Alfred Volkmann, as executor of the estate of Dudley W. Norton, and John Hart, as executor of the estate of Louis A. Pfeifle, was admitted pro hac vice.

 I. DISCUSSION

 A. Defendant Pelletreau's motion to dismiss

 Defendant Pelletreau moves to dismiss the following three claims asserted against it: (1) negligence and professional malpractice (Seventeenth cause of action); (2) breach of contract (Eighteenth cause of action); (3) breach of fiduciary duty (Nineteenth cause of action).

 1. The Rule 12(b)(6) standard

 On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993), 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994). The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).

 It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the Court must accept the allegations of the complaint as true, see LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 109 S. Ct. 1642, 104 L. Ed. 2d 158 (1989).

 The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief", Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice", Fed. R. Civ. P. 8(f).

 The issue before the Court on a Rule 12(b)(6) motion "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (citing Scheuer, supra, 416 U.S. at 235-36). Recovery may appear remote and unlikely on the face of the pleading, but that is not the test for dismissal. Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (citing Scheuer, supra, 416 U.S. at 236).

 It is within this framework that the Court addresses the present motion to dismiss.

 2. Statute of limitations

 The defendant Pelletreau moves to dismiss as time barred all claims that arose prior to three years before the FDIC was appointed as the receiver for Union on August 28, 1992. The Financial Institutions Reform Recovery and Enforcement Act of 1989 ("FIRREA") provides a three year statute of limitations for claims such as this one brought by the FDIC in its capacity as receiver for Union. See 12 U.S.C. § 1821(d)(14). It is undisputed that this suit was commenced within three years of the FDIC's appointment as receiver. Federal banking regulation permits the FDIC to pursue any and all claims that Union may have had once it becomes receiver of the insolvent institution. See 12 U.S.C. § 1821(d); RTC v. MacKenzie, 60 F.3d 972, 977 (2d Cir. 1995). However, Pelletreau contends that the state law claims acquired by the FDIC when it took over Union are time barred in that FIRREA does not revive any state claims for which the state limitations period had already expired. See e.g., FDIC v. Cocke, 7 F.3d 396, 400 (4th Cir. 1993), cert. denied, 513 U.S. 807, 115 S. Ct. 53, 130 L. Ed. 2d 12 (1994). The defendant maintains that New York's applicable statute of limitations provides that an action such as this one, for negligence and professional malpractice, breach of contract and breach of fiduciary duty, are subject to New York's three year statute of limitations. See N.Y. C.P.L.R. 214(6).

 Prior to the September 4, 1996 amendment, N.Y. C.P.L.R. 214(6) provided in relevant part as follows:

 
The following actions must be commenced within three years:
 
* * *
 
6. an action to recover damages for malpractice, other than medical, dental or ...

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