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AUGIENELLO v. FEDERAL DEPOSIT INSURANCE CORPORATION

March 25, 2004.

SUSAN AUGIENELLO, RICHARD J. DORAN, PHILIP EINHORN, CRAIG NAZARRO, and EILEEN PAPP, Plaintiffs
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for SUPERIOR BANK FSB, Defendant



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2

OPINION

Defendant Federal Deposit Insurance Corporation ("FDIC"), as Receiver of Superior Bank, FSB ("Superior") (the "FDIC-Receiver"), has moved to dismiss the amended complaint of pro se plaintiffs Susan Augienello ("Augienello"), Richard J. Doran ("Doran"), Philip Einhorn ("Einhorn"), Craig Nazzaro ("Nazzaro") and Eileen Papp ("Papp") (collectively, the "Plaintiffs"), pursuant to Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction over the subject matter and 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion is granted.

Prior and Related Proceedings

  On June 10, 2002, the Plaintiffs commenced the instant case and on December 18, 2003 filed their amended complaint.

  According to the amended complaint, the Office of Thrift Supervision ("OTS") closed Superior and appointed the FDIC as receiver for Superior on July 27, 2001. The FDIC-Receiver refused to remit to the Plaintiffs certain deferred compensation to which the Plaintiffs allege they were entitled under their employment agreements with Superior. Amended Complaint, ¶¶ 3-5, 29, 42. In October 2001, "pursuant to the mandate of 12 U.S.C. § 1821(D)," the Plaintiffs timely filed proofs of claim with the FDIC-Receiver in order to assert, through the receivership claim process, claims for Page 3 deferred compensation they were allegedly owed under their employment agreements with Superior. Amended Complaint, ¶¶ 14, 30-34. In April 2002, the Plaintiffs' receivership claims were either disallowed by the FDIC-Receiver, deemed disallowed by operation of law, or otherwise rejected by the FDIC-Receiver. Amended Complaint, ¶¶ 14, 35-38.

  On December 20, 2001, the Plaintiffs in the instant case commenced a related action, Augienello v. Coast-To-Coast Financial Corp., U.S. District Court for the Southern District of New York, Civil Action No. 01 Civ. 11608 ("the Coast-To-Coast case") against numerous defendants (including Superior's beneficial owners, board members, and certain of Superior's officers) but not against the FDIC-Receiver or Superior. In that complaint in the Coast-To-Coast case, the Plaintiffs asserted that the defendants were liable to them for the deferred compensation that they were allegedly owed under their employment agreements with Superior.

  In an August 7, 2002 opinion in the Coast-To-Coast case, the breach of contract claims were dismissed for failure to state a claim upon which relief can be granted, holding that the Plaintiffs are not entitled to any deferred compensation under the terms of their employment agreements with Superior, as interpreted under federal law. Augienello v. Coast-To-Coast Financial Corp., 2002 WL 1822926 (S.D.N.Y. Aug. 7, 2002).

  The Plaintiffs appealed from the August 7, 2002 opinion Page 4 in the Coast-To-Coast case to the U.S. Court of Appeals for the Second Circuit. By agreement of counsel and with the consent of the court, further proceedings in the instant case were deferred until after the disposition of that appeal.

  On May 9, 2003, the Court of Appeals issued a summary order affirming the August 7, 2002 decision in the Coast-To-Coast case and stated, "Because we agree with the district court's conclusion that the plaintiffs did not have any vested rights under the employment contracts, the only remaining argument for a claim against Superior is for a breach of the implied covenant of good faith and fair dealing." Augienello v. Coast-To-Coast Financial Corp., 64 Fed. Appx. 820, 822 n. 1, 2003 WL 21069080 (2d Cir. May 9, 2003).

  After the Second Circuit issued its May 9, 2003 ruling, the Plaintiffs filed their amended complaint on November 10, 2003 which is identical to their original complaint in this case except for the addition of a new Count II, which alleges a cause of action against the FDIC-Receiver for breach of "its duty of good faith and fair dealing in its dealings with plaintiffs." Amended Complaint, ¶¶ 44-48.

  The instant motion by the FDIC-Receiver was submitted on January 28, 2004.

  The Facts Page 5

  The following facts are undisputed except as noted.

  On December 30, 1998, Lyons Savings, a Federal Savings and Loan Association located in Countryside, Illinois, was merged into Lyons Savings Bank, a Federal Savings Bank located in Hinsdale, Illinois. On April 27, 1989 Lyon Savings Bank was renamed Superior Bank, FSB. From April 27, 1989 to July 27, 2001, Superior was a federally chartered savings association.

  In December 1992, Alliance Funding Company, Inc. was merged into Superior and became Alliance Funding, a division of Superior. Thereafter, and until Superior was placed in receivership, Alliance Funding was not ...


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