ORDER
Before the Court for consideration is the Report and Recommendation (“Report”) of the United States Magistrate Judge Sam A. Joyner (July 21, 1997, Docket # 324), recommending that the motion to dismiss, or alternatively, for summary judgment filed by Defendants Louis W. Grant, Jr. and Charles B. Grant (Docket # 75), and the motions for summary judgment filed by Defendants Keith R. Gollust and Paul E. Teirney (Docket #76); Lawrence Mills, Jr., Edward L. Jacoby, and W.R. Hagstrom (Docket # 78); and Rod L. Reppe (Docket # 80) be denied. Defendants filed objections to the Report and Plaintiff responded to Defendants’ objections. Defendants also filed a reply to Plaintiffs response.
When a party objects to the report and recommendation of a Magistrate Judge, Rule 72(b) of the Federal Rules of Civil Procedure provides in pertinent part that:
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommendation decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b).
The Court has reviewed Defendants’ objections to the Report de novo and, based upon the reasoning and authority contained in the Report, the Court concludes that Defendants’ objections are without merit. The Court
As described above, based upon a careful review of the Report and Recommendation of the Magistrate Judge, Defendants’ objections, Plaintiffs response, and Defendants’ reply, the Court finds that the Report and Recommendation (Docket #324) should be adopted in its entirety. Thus, Defendants’ motions for summary judgment (Docket # 75, 76, 78, 80) are hereby denied.
IT IS SO ORDERED.
JOYNER, United States Magistrate Judge.
REPORT AND RECOMMENDATION
The following motions have been referred to the undersigned for report and recommendation: 1
1. “Motion to Dismiss or, In the Alternative, Motion for Summary Judgment ... of Defendants Louis W. Grant, Jr. and Charles B. Grant” [Doc. No. 75]; 2
2. “Motion for Summary Judgment of Defendants, Gollust and Tierney” [Doc. No. 76]; 3
3. “Motion for Summary Judgment of Defendants J. Lawrence Mills, Jr., Edward Jacoby and W.R. Hag-strom” [Doc. No. 78]; 4 and
4.“Motion for Summary Judgment of Defendant Rod L. Reppe” [Doc. No. 80]. 5
Messrs. Gollust, Grant, Hagstrom, Jacoby, Mills, Reppe and Tierney (hereinafter referred to as the Defendants) argue that Plaintiffs claims against them must be dismissed because (1) the applicable statute of limitations bars Plaintiffs claims, (2) Plaintiff is estopped from asserting its current accrual argument in connection with the applicable statute of limitations, and/or (3) various loans identified by Plaintiff for the first time in its November 11, 1993 court-ordered Disclosure Report cannot be asserted in this ease. For the reasons discussed below, the undersigned recommends that Defendants’ motions be DENIED.
I. INTRODUCTION
Defendants were inside officers and/or directors of Sooner Federal Savings and Loan Association (“Sooner Federal”), a federally chartered, federally insured depository institution. Defendants have previously been referred to in this litigation as the nongroup I/inside directors. Plaintiff seeks to hold Defendants liable for loans approved, made' and/or supervised by Defendants. Plaintiff alleges that by making, approving and/or supervising the loans, Defendants (1) were negligent, (2) breached their contract with Sooner Federal to serve as prudent officers and directors, and/or (3) breached their fiduciary duty to Sooner Federal.
See
Second Amended Complaint, Counts I, II and III, Doc. No. 35. Defendants argue that under all of the theories of liability asserted by Plaintiff, a claim based on a bank officer’s or director’s making, approving and/or supervising a loan accrues when the bank disburses the loan proceeds (i.e., when the loan is made). Under Defendants’ accrual theory, most, if not
A. FIRREA’s Application
By late 1989, Sooner Federal was in trouble and on November 16, 1989, the Department of the Treasury’s Office of Thrift Supervision (“OTS”) appointed the Federal Deposit Insurance Corporation (“FDIC”)
6
as conservator for Sooner Federal pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIR-REA”), 12 U.S.C. §§ 1441a(b), 1464(d)(2) and 1821(c)(6).
See
Exhibit D, Doe. No. 315. Pursuant to 12 U.S.C. § 1821(d)(2)(A)®, the FDIC steps into the shoes of a failed, federally insured depository institution and thereby obtains those rights of the institution which existed prior to the conservatorship.
O’Melveny & Myers v. FDIC,
Ordinarily, the statute of limitations applicable to an action for money damages brought by the United States or one of its agencies is 28 U.S.C. § 2415. With FIR-REA, Congress sought to strengthen the enforcement powers of Federal regulators of depository institutions. Consequently, FIR-REA provides the FDIC with a special statute of limitations in its role as conservator of a failed depository institution. This special statute expands the limitations periods in § 2415. See 12 U.S.C. § 1821(d)(14). The applicable portion of FIRREA’s special statute of limitations provides as follows:
(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the [FDIC/RTC] as conservator or receiver shall be—
(i) in the case of any contract claim, the longer of—
(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim ..., the longer of—
(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of—
(i) the date of the appointment of the [FDIC/RTC] as conservator or receiver; or
(ii) the date on which the cause of action accrues.
12 U.S.C. § 1821(d)(14).
The shortest limitations period in § 1821(d)(14) is three years from the date the FDIC/RTC is appointed as conservator. Plaintiff became Sooner Federal’s conservator on November 16, 1989 and this lawsuit was filed less than three years later on November 13,- 1992. Thus, all of Plaintiffs claims are timely under FIRREA’s extended statute of limitations.
Plaintiff must, however, pass one more hurdle for its claims to be considered timely. Plaintiff obtains the benefit of FIR-REA’s extended statute of limitations only if Plaintiffs claims were timely under state law on the date Plaintiff was appointed as conservator.
7
In other words, Plaintiff has the
B. Effect Of The United Supreme Court’s Holdings In Atherton And O’melveny
During the course of this litigation, the United States Supreme Court has decided two cases which dramatically impact eases brought by the FDIC.
See O’Melveny & Myers v. FDIC,
C. Plaintiff’s Abandonment Of Loan Claims
In its Second Amended Complaint, Plaintiff identifies 35 loans which it alleges were improperly approved, made and/or supervised by Defendants. See Doe. No. 35, ¶ 38. Throughout the course of litigation, however, Plaintiff has abandoned several of these loan claims. See Doc. Nos: 269 and 315. The following table identifies (1) the remaining loan claims being asserted by Plaintiff, (2) the Defendant against whom each loan claim is being asserted, and (3) the date each loan was made.
Tandem— Cushing 06-28-82 10-27-83 12-28-84 X X X X X
Northtown Investors I * 08-24-82 X X X X X
FHSC — Intrapark 07-10-84 X X X X X
Mager/OPI— Rolling Hills I 09-13-84 X X X X X
Tandem — Reppe 12-04-84 X X X X X
Tandem— Cherry Street 06-10-85 X X X X X X
Northtown Investors II * 10-31-86 X X X X
Three Years Betore FDIC’s Appointment as Conservator (11/16/86)
FHSC— Hunter’s Hills 05-13-87 XXX X
Mager/OPI— Rolling Hills II 11-05-87 X X X
Two Years Before FDIC’s Appointment as Conservator (11/16/87)
FDIC Appointed as Conservator (11/16/89)
D. History Of Defendants’ Motions
This case was filed and assigned to Judge Thomas R. Brett in November 1992. Defendants’ statute of limitations motions were filed in January 1994. Shortly after Defendants’ motions were filed, this case was transferred to Judge Lee R. West in the Western District of Oklahoma, due to the recusal of all judges in this district. See 1/25/94 Minute Order by Judge Brett. In August 1994, after Judge Terry C. Kern’s recent appointment to the Northern District of Oklahoma, the case was transferred back to the Northern District and assigned to Judge Kern. [Doc. No. 222].
1. Original Briefs: The Adverse Domination Doctrine
In their original statute of limitations briefs, the parties focused primarily on the doctrine of adverse domination. Under the adverse domination doctrine, the statute of limitations on a corporation’s claim against its officers and/or directors is equitably tolled while the corporation’s board of directors is controlled by culpable directors. The underlying premise of the adverse domination doctrine is that a corporation acts through its board of directors and a board of directors controlled by culpable directors will not cause the corporation to bring a lawsuit against themselves.
See RTC v. Thomas,
In
Bryan,.
the FDIC sued former officers and directors of a national bank for making imprudent loans. The officers and directors argued that the statute of limitations had run on several of the loan claims being asserted by the FDIC. The FDIC argued that its loan claims were not barred by the applicable statute of limitations because defendants had adversely dominated the bank’s board of directors and such domination acted to equita
Applying federal common law, the Court in
Bryan
held that “a cause of action on an improper loan accrues at the time the loan is made.”
Bryan,
By the time Judge Kern received the ease in the late summer of 1994, the United States Supreme Court had rendered its decision in
O’Melveny & Myers v. FDIC,
As discussed above, the Supreme Court in O’Melveny, and later in Atherton, greatly restricted the instances in which federal courts are permitted to create rules of decision under federal common law. Judge Kern found that the Supreme Court’s decision in O’Melveny undermined the Tenth Circuit’s conclusion in Bryan that application of the adverse domination doctrine would be controlled by federal common law, not state law. Judge Kern ordered the parties to address the need to certify questions regarding the adverse domination doctrine to the Oklahoma Supreme Court because Oklahoma had not squarely addressed the adverse domination doctrine. [Doc. No. 229]. After receiving the parties’ briefs, Judge Kern entered an order in December 1994 certifying to the Oklahoma Supreme Court questions of law relating to the adverse domination doctrine. [Doc. No. 240]. The Oklahoma Supreme Court was asked to decide whether Oklahoma law recognized the adverse domination doctrine and, if so, whether the doctrine would “delay accrual or toll the statute of limitations on [Plaintiffs claims] against corporate officers and directors while the wronged corporation is controlled by a majority of culpable directors and officers.” [Doc. No. 240],
The Oklahoma Supreme Court answered the certified questions relating to the adverse domination doctrine in late June 1995. [Doc. Nos. 245 and 246]. The Oklahoma Supreme Court held that the doctrine of adverse domination is part of Oklahoma’s common law, but that the doctrine only tolls the statute of limitations in those situations “involving fraudulent conduct exercised while the wronged corporation is controlled by a majority of culpable directors and officers.” [Doc. No. 246],
See RTC v. Grant,
2. Supplemental Briefs: “Accrual” of the Statute of Limitations Under Oklahoma Law
In Bryan, the Tenth Circuit also held that the question of when a cause of action against an officer and/or director of a national bank “accrues” is a question of federal common law. The Tenth Circuit’s accrual holding is no longer correct in light of O’Mel-veny and Atherton. See Section 1(B), supra. As is the question of tolling by the adverse domination doctrine, the question of when a cause of action accrues is governed by state law, not federal common law. At the time Judge Kern certified questions to the Oklahoma Supreme Court, neither the parties nor the Court focused on the accrual issue or the incorrectness of Bryan’s accrual holding in light of O’Melveny. Thus, the questions certified to the Oklahoma Supreme Court focused only on the adverse domination doctrine.
While the certified questions were pending, this case was dormant from December 1994 to October 1995. During this lull, the case was reassigned to Judge Sven Erik Holmes in March 1995. Judge Holmes ordered the parties to file a joint status report and in October 1995, all motions were referred to the undersigned for report and recommendation. [Doc. No. 249], The undersigned held a status conference in December 1995.
At the December 1995 status conference, Plaintiff sought leave to file supplemental briefs in connection with Defendants’ statute of limitation motions. For the first time, Plaintiff wanted an opportunity to brief the issue which had been ignored when questions relating to the adverse domination doctrine were certified to the Oklahoma Supreme Court. That is, Plaintiff wanted an opportunity to brief Oklahoma law regarding accrual of its negligence, contract and breach of fiduciary duty claims. Plaintiff wanted an opportunity to demonstrate that under Oklahoma law, its loan claims did not accrue for purposes of the Oklahoma statute of limitations when the loans were made, but when Sooner Federal suffered harm caused by Defendants’ negligence. It is Plaintiffs position that Sooner Federal was not harmed, and, therefore, its claims did not accrue on each loan until the loan at issue suffered an “event of default.” The undersigned permitted briefing on the accrual issue and that briefing was filed in April 1996.
Oral argument on Defendants’ statute of limitations motions was heard in October 1996. At oral argument, Defendants argued that even under Plaintiffs accrual theory, all of the loans at issue in this case suffered an “event of default” more than three years prior to the date the FDIC was appointed as Sooner Federal’s conservator. Thus, Defendants argued that even under Plaintiffs accrual theory, all of Plaintiffs claims would be barred by the Oklahoma statute of limitations. To isolate the facts relating to “events of default” on each loan, the undersigned ordered the parties to file briefs indicating where in the record the Court could find the facts which established when each loan went into default. These “default” briefs were filed in November 1996. No additional briefing has been filed since that time, and Defendants’ statute of limitations motions are finally at issue.
II. EFFECT OF FDIC’S INCONSISTENT POSITIONS
Defendants argue that Plaintiff has done a dramatic flip flop on the accrual issue. That is, Defendants' argue that before the Oklahoma Supreme Court decided the adverse domination issue against Plaintiff, Plaintiff agreed with Defendants’ assertion that the loan claims in this case accrued when the loans were made. It was not until after the Oklahoma Supreme Court answered the adverse domination questions that Plaintiff advanced its current argument that under Oklahoma law its loan claims did not accrue when the loans were made, but when Sooner Federal suffered harm as a result of Defendants’ actions (i.e., when the loans defaulted). Defendants accuse Plaintiff of keeping its accrual arguments in its hip pocket until Plaintiff saw how the Oklahoma Supreme Court would rule on the adverse domination doctrine. Defendants also argue that in light of Plaintiffs current, accrual position, the certified questions to the Oklahoma Supreme Court were a waste of time and Judge Kern would never have certified questions if he had known Plaintiff would assert the ac-
The doctrine of judicial estoppel bars a party from adopting inconsistent positions in the same or related litigation.
United States v. 49.01 Acres of Land,
The undersigned has reviewed the file and is convinced that in this case Plaintiff did not intentionally withhold its current accrual argument until after the Oklahoma Supreme Court’s answers to the adverse domination questions. As discussed above, when Defendants’ original statute of limitations motions were filed, the Tenth ■ Circuit’s decision in Bryan was the principal controlling authority. Bryan focused on the doctrine of adverse domination. So, the parties and the Court focused on the adverse domination doctrine. When it became clear that the United States Supreme Court’s decision in O’Melveny undermined the Tenth Circuit’s holding in Bryan, and the focus switched from federal common law to state law, the parties and the Court were still focused on the adverse domination doctrine. ' No one focused on the fact that O’Melveny also undermined the Tenth Circuit’s holding in Bryan that accrual was a matter of federal common law. It was not until after the Oklahoma Supreme Court rendered its decision that Plaintiff focused on the fact that accrual would also be governed by state law and not federal common law. It may be true that it was the defeat in the Oklahoma Supreme Court that caused Plaintiff to focus on the accrual issue. While that fact may merit an award of fees and costs to compensate for any resulting delay, it cannot prevent the Court from considering Plaintiffs arguments to determine the correct legal principles to be applied in this case.
III. THE NORTHTOWN INVESTORS LOANS ARE PROPERLY IN THIS LAWSUIT
Plaintiff filed its original Complaint on November 13, 1992. [Doc. No. 1]. Plaintiff filed its First Amended Complaint on February 12, 1993. [Doc. No. 24], Plaintiff filed its Second Amended Complaint on June 1,1993. [Doc. No. 35]. 10 In these complaints, Plaintiff listed 35 loans which it considered to have been imprudently authorized, made and/or supervised by Defendants. Plaintiff expressly stated that the list of 35 loans was a non-exhaustive list of “example” loans. [Doe. No. I, ¶ 28; Doc. No. 24, ¶ 31; and Doc. No. 35, ¶ 38], Neither the Northtown Investors I nor the Northtown Investors II loans were listed in either the original, first amended or second amended complaints.
Early on in this case, the parties had several ease management' conferences before Magistrate Judge John L. Wagner. Because this case is a document intensive case and because a majority of the documents relevant to this case are in Plaintiffs possession, Magistrate Judge Wagner ordered Plaintiff to prepare and file a disclosure report. [Doc. No. 60 and 6/25/93 Minute]. The disclosure report was designed to reduce the amount of discovery that would otherwise be necessary. Plaintiff served its court-ordered Disclosure Report on November 11, 1993. [Doc. No. 311].
11
The Northtown Investors loans,
Defendants argue that they cannot be held hable for the Northtown Investors loans. In support of their argument, Defendants advance two propositions. First, Defendants argue that the Second Amended Complaint violates Fed.R.Civ.P. 8(a)(2) because it fails to give Defendants reasonable notice that they may be held hable in connection with the Northtown Investors loans. Second, Defendants argue that the addition of the Northtown Investors loans in the Disclosure Report is a “de facto ” amendment of the Second Amended Complaint (i.e., a Third Amended Complaint). If the Disclosure Report is treated as an amendment to the Second Amended Compliant, Defendants argue that any claims relating to the Northtown Investors loans would be barred by the applicable statute of limitations because the newly added claims would not “relate back” under Fed.R.Civ.P. 15(c).
Plaintiff responds by arguing that its Second Amended Complaint satisfies Rule 8(a)(2)’s notice pleading requirement and it is not required to hst specific loans in a complaint. In the alternative, Plaintiff argues that if the Second Amended Complaint fails to comply with Rule 8(a)(2), then the Disclosure Report should be treated as an amendment to the Second Amended Complaint and that amendment will “relate back” to the original Complaint under Rule 15(c).
The procedural posture of the parties’ positions is not clear from their briefs. In order to clarify the appropriate standards to be applied, the undersigned will treat Defendants’ pleadings on this issue as a motion to dismiss any claims based on the Northtown. Investors loans for failure to properly state a claim under Fed.R.Civ.P. 8. The undersigned will treat Plaintiffs pleadings on this issue as a response to Defendants’ motion to dismiss, and, in the alternative, a request for leave to amend. So characterized, the undersigned finds that loan claims based on the North-town Investors loans are not properly pled in the Second Amended Complaint and recommends that Defendants’ motion to dismiss those claims for failure to comply with Fed. R.Civ.P. 8 be granted. However, the undersigned further recommends that Plaintiff be granted leave to amend its Second Amended Complaint to add claims based on the North-town Investors loans. The undersigned also finds that any amendment adding claims based on the Northtown Investors loans will relate back to date of the original Complaint under Fed.R.Civ.P. 15. Thus, the undersigned ultimately recommends that claims based on the Northtown Investors loans be recognized as properly plead in this lawsuit.
A. Defendants’ Motion To Dismiss And Rule 8’s Pleading Standard
“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”
Conley v. Gibson,
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. The illustrative forms attached to the Rules plainly demonstrate this. Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and- the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and define more narrowly the dis- ' puted facts and issues.
Conley,
For example, a complaint for conversion or to recover on a note, can be stated in half a page. On the other hand a complaint dealing with a more complex matter, as in an antitrust action, and action to enjoin enforcement of an unconstitutional statute, an interpleader suit, or a stockholder’s action will be more extended and may require more particularity [to put a defendant on notice].
Id. at 1387 (citing 2A James Wm. Moore et al., Moore’s Federal Practice ¶ 8.13 (2d ed.1979)).
In
Mountain View,
Plaintiff alleged not much more than that 13 defendants violated the antitrust laws when they sold their products. Plaintiff simply recited statutory language and gave no specifics as to the offending defendants, the injured parties, or the products involved. The Tenth Circuit found such, a complaint to be in violation of Rule 8 as it did not provide the defendants with fan-notice of plaintiffs antitrust claims.
Mountain View,
Based on the authorities discussed above, the undersigned finds that Plaintiff should be required to list in its complaint the specific loan transactions for which Plaintiff intends to hold Defendants liable. Without specifying the individual loans at issue, Plaintiffs complaint alleges nothing more than (1) Defendants had the authority to make, approve or supervise unspecified loans, and (2) Defendants injured Sooner Federal by improperly making, approving and/or supervising unspecified loans. A pleading failing to allege specific loan transactions is not materially different from a pleading alleging that defendant owns a car and injured plaintiff by driving it negligently. In Mountain View, the Tenth Circuit held that such vague pleading violates Rule 8.
Plaintiff originally brought this action against 15 defendants. These defendants served on Sooner Federal’s board or were officers at different and overlapping times during a ten year period. Plaintiff alleged that Defendants engaged in wrongful conduct for a period of six years, between 1982 and 1988. During this six year period, Sooner Federal made many loans. A complaint which does not at' least allege which loans are at issue does not provide Defendants with fair notice of the claims being asserted against them. Without knowing which loan transactions are at issue, Defendants cannot be expected to prepare an adequate responsive pleading. Requiring Plaintiff to list the loan transactions at issue provides Defendants with fair notice and it does not require Plaintiff to plead with great factual specificity. Thus, an appropriate balance between Rule 8’s fair notice and “short and plain statement” requirements is achieved. 12 The undersigned finds, therefore, that regarding claims based ■ on the Northtown Investors loans, Plaintiffs Second Amended Complaint fails to comply with Fed.R.Civ.P. 8.
It is clear from the transcripts of the case management conferences held by Magistrate Judge Wagner that the parties and the Court expected the November 1993 Disclosure Report to be a comprehensive statement by Plaintiffs of all claims being asserted against Defendants. In many respects, the Disclosure Report is like a one-sided pretrial order. It appears as if the parties’ and Magistrate Judge Wagner’s intent was that the Disclosure Report, like a pre-trial order, control the subsequent course of Plaintiffs case. See, e.g., Fed.R.Civ.P. 16(e). Plaintiffs were to review the documents in its possession and identify the loans on which it would seek to hold Defendants liable. For each loan identified, Plaintiff was to (1) identify the phase, time period or aspect of the loan each Defendant was involved with; (2) identify the underlying theory of liability; (3) summarize its expert’s opinion and methodology regarding damages; (4) prepare a list of fact witness as to each loan; and (5) produce copies of all exhibits supporting Plaintiffs claim with respect to each loan. It is not surprising that such a comprehensive Disclosure Report might contain new information that was not present in the original Complaint.
Amendments are to be freely allowed when justice so requires. Fed.R.Civ.P. 15(a). “Justice” ordinarily requires that leave to amend be granted unless the party seeking to amend is guilty of delay, bad faith, dilatory motive or unless the amendment' would be futile or unduly prejudicial to the opposing party.
Foman v. Davis,
1. Relation Back
Defendants argue that amendment of the Second Amended Complaint should not be permitted because an amendment would be futile.
See Foman,
Under the Federal Rules of Civil Procedure, an amendment to a complaint will relate back to the date of the original complaint when the claim asserted in the amended pleading arises “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The theory behind this rule is that “once litigation involving particular conduct or a given transaction has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of ... claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading.” 6A‘Charles A. Wright et al.,
Federal Practice and Procedure: Civil 2d
§ 1496 (1990). Because the purpose of a statute of limitations is to prevent the assertion of stale claims, its purpose is not violated by allowing, after the statute has run, the addition of claims arising out of conduct, transactions or occurrences which are already a part of active litigation.
See FDIC v. Conner,
The Fifth Circuit, addressing the precise issue presented by Plaintiffs motion for
The Fifth Circuit rejected defendants argument with the following language:'
In the present case, we hold that the amended complaint should relate back to the date of the original complaint. The damage allegedly caused by the loans that the FDIC seeks to include in this ease arose out of the same conduct as the damage caused by the twenty-one loans listed in the original complaint. The conduct identified in the original complaint that allegedly caused the defendants to approve the loans listed in that pleading also allegedly caused the defendants to approve the loans that the FDIC seeks to include in this case through the amended complaint. The FDIC’s amendment thus seeks to identify additional sources of damages that were caused by the same pattern of conduct identified in the original complaint.
Conner,
Rule 15(c) allows relation back when the claims asserted in the amendment arise out of the same “conduct, transaction or occurrence.” Fed.R.Civ.P. 15(c). The disjunctive phrasing of these three terms makes it clear that the new claim need not arise out of the same transaction or occurrence- as the original elaimé. As long as the new claim arises out of the same “conduct” as the original claims, the new claim will relate back under Rule 15(c). In its original and amended complaints, Plaintiff identified conduct that allegedly caused or contributed to Defendants’ improper approval and/or supervision of the 35 loans listed in those complaints. This same conduct also allegedly caused Defendants to improperly approve and/or supervise the Northtown Investors loans. See Second Amended Complaint, Doe. No. 35. By adding the Northtown Investors loans, Plaintiff is merely seeking to identify an additional source of damage caused by the same pattern of conduct identified in the original, first amended and second amended complaints. The undersigned recommends, therefore, that Plaintiffs motion for leave to amend ¶38 of the Second Amended Complaint to add the Northtown Investors loans be granted. 14
Claims based on the Northtown Investors loans will be treated as if they were in the original complaint (i.e., they will relate back). The Northtown Investors loans are, therefore, timely under FIRREA’s extended statute of limitations. The issue still remains, however, whether they, along with all the other loan claims being asserted by Plaintiffs, were timely under Oklahoma law when the RTC was appointed on November 16, 1989. See discussion in section 1(A), supra, and section IV, infra.
Whether an action is barred by the applicable statute of limitations is a question of fact to be determined by considering the. evidence in each case.
MBA Commercial Construction, Inc. v. Roy J. Hannaford Co., Inc.,
Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of •action shall have accrued, and not after-wards:
2. Within three (3) years: An action upon a contract express or implied not in writing ....
3. Within two (2) years: [A]n action for injury to the rights of another, not arising on contract, and not hereinafter enumerated ....
10. An action for relief, not hereinbe-fore provided for, can only be brought within five (5) years after the cause of action shall have accrued.
12 Okla. Stat. § 95. Under this statute, Plaintiffs negligence claims would be subject to a two year statute of limitations and Plaintiffs oral contract claims would be subject to a three year statute of limitations. It is not clear, however, what limitations period would apply to Plaintiffs breach of fiduciary duty claims. All of these limitations periods begin to run from the date the cause of action “shall have accrued.” The remainder of this Report and Recommendation will discuss when each of Plaintiffs causes of action accrued.
A. Accrual Of Plaintiff’s Negligence Claims
Under Oklahoma law,
[t]he limitations periods in [12 Okla. Stat. § 95 begin] to run from the time the elements of a cause of action arise. The elements of a cause of action arise, that is, the cause of action accrues when a litigant first could have maintained his action to a successful conclusion.
The three elements of actionable negligence are: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom. The substantive right to damages vests when these three elements are present.
In order for a litigant to maintain a negligence action to a successful conclusion, the litigant must [be able to] allege injury or damages that are certain and not speculative. Thus, the summary judgment [motions] herein must be supported by evidence that establishes the time injuries or damages that are certain and not speculative were sustained by [Sooner Federal].... At that time the alleged negligence action accrued and the time limitations in § 95(3) began to run.
MBA Commercial,
In this case, the ultimate question is this: At what point did it become definite and certain that Sooner Federal would suffer damage as a result of Defendants’ negligence?
See, e.g., Wynn v. Estate of Holmes,
In
Robertson,
the City of Stillwater built a dam in 1926 to create a lake that would provide a municipal water supply. In 1933, the City increased the height of the dam by two feet to impound more water for the City. After the dam was raised, the lake level dropped, instead of rose, because of several dry years. It was not until the spring of 1941 that abundant rains filled the lake and Plaintiffs property' was flooded. Plaintiff sued the. City for trespass to recover for damage done to his property. The City argued that plaintiffs claim was barred by a two year statute of limitations. The issue before the court was when did plaintiffs claim accrue — in 1933 when the dam was raised or in 1941 when plaintiffs property was eventually flooded? As with a negligence claim,'the Court held that a claim for trespass to real property caused by an improvement accrues at the moment it appears that injury to the property is certain to occur.
15
Robertson,
The plaintiffs in
Murduck
owned a parcel of farmland. The south side of plaintiffs’ farmland was a natural basin or depression which could not drain on its own. In 1908, the owner of the farmland constructed a 10 inch drain that ran 3,065 feet from the center of the basin toward the Chickaskia River. The drain emptied into a small ditch which was about six to eight feet deep. The ditch emptied into the Chickaskia River and .the system worked well for 28 years. ,In 1936, the City of Blackwell dammed the Chickaskia River to form a reservoir to be used as a municipal water source. The Chickaskia River flooded in 1942 and flood waters filled plaintiffs’ basin. When the Chickaskia River returned to normal, the flood waters trapped in plaintiffs’ basin did not drain away. The evidence established that from 1937 to 1943, after the dam was constructed, silt and mud had settled in, around and over the ditch into which the plaintiffs drain emptied. The silt and mud eventually filled the ditch so full that plaintiffs’ drain outlet could no longer be found. ’
Murduck,
The plaintiffs in Murduck sued the City of Blackwell and the City argued that plaintiffs’ claim was barred by the statute of limitations. Relying on Robertson, the City argued that plaintiffs’ claim accrued when the dam was built in 1936, not when plaintiffs’ basin was flooded in 1942. The Court disagreed, holding as follows:
It cannot be said that it was obvious when the dam was completed that would occur. No one could tell, or know, that would occur or where or to what extent silt or mud Would settle at and around the outlet of plaintiffs’ drainage tile. No one knew what had happened until the City lowered the level of the lake so as to expose the accumulated silt and mud.
It does not appear as a certainty that plaintiffs’ damages were obvious at • the time the dam was constructed. In any event, it would, under the rules stated in the decisions above cited, be a question of fact for the jury and not one for the court. We cannot say as a matter of law that plaintiffs’ action was barred by the statute of limitations.
Murduck,
The parties seem to agree that a negligence claim in Oklahoma accrues when damage caused by the alleged negligent acts is certain to occur. In the context of negligent lending by an officer and/or director of a depository institution, the parties take different positions on when damage to a depository
The undersigned declines to adopt either of the absolutist positions advanced by the parties. The undersigned declines to find that as a matter of law a depository institution is always or never injured by an officer’s or director’s negligence at the time a loan is made or foreclosed. When damage to a depository institution becomes certain and not speculative is a question to be answered by looking at the facts of each loan transaction. There are no bright lines. In some instances, damages may be certain at the time a loan is made. In other instances, the fact that the depository institution will be damaged may not become certain until the loan has to be restructured and/or foreclosed. For the loans at issue, the undesigned has reviewed all the materials submitted by the parties and finds that there are genuine issue of material fact as to when the damage alleged by Plaintiff first became certain and not speculative. Summary judgment is, therefore, not appropriate on Plaintiffs negligence claims.
Defendants argue that the entire theory underlying Plaintiffs negligence claims is that the collateral received by Sooner Federal in exchange for the loans at issue was not as valuable or tangible as it should have been (i.e., the loans were under-collater-alized). Defendants argue that “accrual at the time a loan is made” is the only accrual rule that can be applied to such a theory. Defendants argue that a depository institution is injured immediately when it parts with funds to make a loan and it receives collateral worth less than it should be worth using proper loan underwriting standards. Defendants argue that this damage can be measured by looking at the “difference in value between what [Sooner Federal] has paid (the loan amount) and what it has received (a promise of repayment by a non-creditworthy borrower).” [Doc. No. 278, pp. 14-15],
Although there are no cases directly on point in Oklahoma, the undersigned does not believe that Sooner Federal would have been able to sue a director under Oklahoma law the moment that director made an allegedly under-collateralized loan. As discussed above, a negligence claim in Oklahoma becomes actionable only when damages are certain to occur as a result of the alleged negligence. When a depository institution’s director approves and/or makes a loan to a borrower and that borrower is timely repaying the loan, the undersigned believes that an Oklahoma court would not permit the depository institution to sue the director for negligence in connection with the loan. It may be true that the depository institution has an insecure collateral position. It may also be true,'however, that, despite its insecure collateral position, the depository institution will be repaid in full on the loan. How is the depository institution damaged if the loan is timely and fully repaid? Thus, it seems entirely speculative, and not certain, that a depository institution has suffered damages on a loan that is being timely repaid. Under Oklahoma law, the depository institution’s negligence claims against the director would not, therefore, accrue at the time the loan was made.
See FDIC v. Stahl,
Defendants attempt to demonstrate that even if Sooner Federal is repaid in full on an under-collateralized loan, it suffers some damage. For. example, Defendants argue that because a loan is under-collateralized that loan should command a higher interest rate, which Sooner Federal would have charged but for the- negligence of Defendants. Defendants also argue that, but for their alleged negligence in disbursing certain loan proceeds, Sooner Federal would have had more capital available to loan on transactions that were less risky and more profit
Defendants’ limitation of Plaintiffs negligence claims to under-collateralization of loans is also unduly restrictive. In ¶ 37 of the Second Amended Complaint, Plaintiff identifies at least 17 types of negligent conduct which it alleges caused damage to Sooner Federal. Only one out of the list of 17 deals with the making of under-collateralized loans. 16 Much of the other conduct alleged in ¶ 37 to have been negligent could not have occurred until after a particular loan was made. For example, ¶ 37(1) alleges that Defendants “[allowed [Sooner Federal] to fore-go periodic inspections and evaluations of collateral.” Paragraph 37(l) alleges that Defendants “[flailed to monitor the use of loan proceeds.” Paragraph 37(o) alleges that Defendants “[allowed renewal of loans with no reduction in principal and with past-due interest capitalized.” Paragraph 37(p) alleges that Defendants “[allowed release of collateral for inadequate consideration and failed to aggressively pursue collateral when default occurred.” All of this conduct is conduct which occurs after a loan is initially made. In other words, a loan may have been properly collateralized when made and Defendants could have been negligent for failing to conduct periodic inspections of the collateral or for inappropriately releasing the collateral at a later date. It makes no sense to apply to this type of conduct an accrual rule that focuses on when the original loan was made.
To date, discovery has not progressed with respect to Plaintiffs claims against Defendants. Thus, it is not clear from the record before the Court what negligent conduct alleged in ¶ 37 of the Second Amended Complaint is or is not applicable to each loan left in this case. Nevertheless, the thrust of Plaintiffs negligence claims is really that in the early 1980’s Sooner Federal shifted from residential mortgage lending to commercial lending and Defendants were negligent in the planning, installation, execution and supervision of Sooner Federal’s overall commercial lending program. [Doc. No. 31, §§ IV and VIII]. In other words, it may be that the damage resulting from a particular loan was proximately caused by negligent acts which occurred after the loan whs made.
Defendants cite several cases for the proposition that it is “black letter law” that a depository institution’s claim for negligence in connection with a loan made, approved and/or supervised by one of its directors accrues at the time the loan is made. The undersigned will not distinguish every case cited by Defendants. Oklahoma law governs the viability of Plaintiffs claims. To the extent that the eases cited by Defendants rely on non-Oklahoma law or law not in accord with Oklahoma’s statute of limitations’ jurisprudence, Defendants’ reliance on those cases is misplaced.
See Stahl,
Defendants rely on
Corsicana Nat Bank of Corsicana v. Johnson,
Corsicana is consistent with Oklahoma law. In Oklahoma, a limitations period begins to run only when all of the elements of a cause of action arise. The only elements of a § 5200 violation are (1) the making of a loan in excess of 10% of the value of the bank’s capital stock, (2) to a single entity, (3) with knowledge or intent. When these elements arise, the director must take the loan off the bank’s hands and reimburse the bank for the amount of the improperly made loan. All of the elements of the offense/elaim arise at the time the loan is made. Corsicana does not establish that as a matter of law damage to a depository institution caused by the negligence of one of the institution’s directors in approving, making and/or supervising a loan is always certain to occur at the time the loan is made. 17
Defendants also rely on a series of eases from the Fifth Circuit Court of Appeals.
See FDIC v. Dawson,
The undersigned has reviewed the entire record submitted by the parties. The undersigned is convinced that there are material factual issues as to what negligent acts caused harm to Sooner Federal for a particular loan, when those acts occurred, and when harm caused by those acts was certain to occur and not speculative. Summary Judg
B. Accrual Of Plaintiff’s Breach Of Contract And Breach Of Fiduciary Duty Claims
1. Breach of Contract Claims
Plaintiff alleges in its Second Amended Complaint that “Defendants contracted with [Sooner Federal] to serve as officers of the Institution, for which they received salaries and/or compensation.” [Doc. No. 35, ¶ 43]. Plaintiff alleges further that the acts and omissions described in the Second Amended Complaint constitute breaches of Defendants’ contracts with Sooner Federal. Id. at ¶44. Plaintiff has not presented any evidence of a written contract between Sooner Federal and Defendants. The undersigned assumes, therefore, that Plaintiffs contract claim is based on an oral contract.
In
Great Plains Federal Savings and Loan Ass’n v. Dabney,
The Court in
Dabney
began by recognizing that “a party may bring a claim based in both tort and contract against a professional and that such action may arise from the same set of facts.”
Dabney,
In
FDIC v. Regier Carr & Monroe,
Plaintiff has alleged no specifics in connection with the alleged contract between Sooner Federal and Defendants. Plaintiffs pleadings make it reasonably clear, however, that the breach alleged amounts to nothing other than Defendants’ breach of their obligation to' diligently and honestly administer Sooner Federal’s affairs. In other words, there is no evidence in the record that would support a finding that there was an express agreement by Defendants to do more than use ordinary care in managing Sooner Federal’s affairs. Thus, under Dabney and Re-gier the contract action being asserted by Plaintiff would sound in tort and be subject to the two year tort statute of limitations. The accrual of these claims would, therefore, be subject to the analysis in section IV(A), supra.
Plaintiff attempts to distinguish Dabney and Regier by arguing that those cases apply only to professional malpractice claims against doctors, lawyers, accountants, architects and engineers. While there is some language in these ease which may restrict their holdings to professional malpractice cases, Plaintiff has not provided any reason why the Court should not consider a director of a depository institution to be a “professional” or why this action against such a director should not be viewed as a malpractice action. In any event, the undersigned finds ho material difference between the type of contract claim asserted by the FDIC in this case and the type of contract claim asserted by the FDIC in Regier.
2. Breach of Fiduciary Duty Claims
Plaintiff has also alleged that Defendants were fiduciaries of Sooner Federal and Defendants violated their fiduciary duties to Sooner Federal. [Doe. No. 35, ¶¶ 24-35]. In all cases, the existence or nonexistence of a fiduciary duty depends on the factual circumstances surrounding the parties’ relationship and transactions.
First Nat’l Bank and Trust Co. of Vinita v. Kissee,
While the existence of a fiduciary relationship is normally a question of fact, it is well settled that as a matter of law in Oklahoma, the relationship between a director and his corporation is a fiduciary relationship. Directors of a corporation owe fiduciary duties to the corporation.
Wilson v. Harlow,
In
RTC v. Greer,
The Oklahoma Supreme Court ultimately held that Anchor, as a creditor of Mega II, could not sue defendant for breach of his fiduciary duties to Mega II. The Court held that such an action belongs to the corporation alone, not to the corporation’s creditors. As a Mega II creditor, Anchor was not permitted to press a claim based on defendant’s breach of his common law fiduciary duties to Mega II.
Greer,
The second category of fiduciary duty claims mentioned in
Greer
(i.e., the trust prong) deals with the imposition of a constructive trust which arises by operation of law, and is not applicable in this case. The first category of fiduciary duty claims mentioned in
Greer
(i.e., the implied contract prong) is applicable in this ease. As an example of a claim based on the implied contract prong of fiduciary obligations, the Court cited
Hughes v. Reed,
With the following language, the Court held that the receiver’s claim in Hughes was an action based on an implied contract:
The assumption of the duties of directorship in any corporation is an agreement honestly and diligently to direct the business of the corporation. [The National Bank Act] requires that each director of a national bank take an oath that he will, ‘sofar as the duty devolves on him, diligently and honestly administer the affairs of such association, and will not knowingly violate or willingly permit to be violated any of the provisions of [the National Bank Act].’ 12 U.S.C.A. § 73. By the relationship, fortified by the oath, [a director] agrees with the stockholders and creditors that he will honestly and diligently administer the bank’s affairs. The [receiver’s complaint] alleges facts which, if true, are a breach of that agreement. It has been expressly held that the liability of a director is ex contractu [i.e., from or out of a contract].
Hughes,
Defendants attempt to distinguish
Hughes
by arguing that the depository institution in
Hughes
was a national bank and pursuant to 12 U.S.C. § 73, a director of a national bank is required to take an oath. Sooner Federal is a federal savings and loan, not a national bank, and there is no oath provision for directors of federal savings and loans.
19
The undersigned finds this argument unpersuasive. The Court in
Hughes
held that it is the relationship between a director and the depository institution which gives rise to the implied by law agreement. As the Tenth Circuit stated, an oath simply fortifies an agreement which is already implied by law due to the position of trust, confidence, and dominance held by a director of a depository institution. Plaintiffs breach of fiduciary duty claim is, therefore, premised on a contract implied by law. In Oklahoma, an action to enforce an unwritten implied by law contract is governed by a three year statute of limitations. 12 Okla. Stat. § 95(2);
Greer,
Defendants also argue that the Dabney rule applies to Plaintiffs fiduciary duty claims. See Section IV(B)(1), supra. That is, Defendants argue Plaintiffs breach of fiduciary duty claims do nothing other than seek to hold Defendants liable for breaches of the duty to exercise ordinary care. Under Dab-ney, Defendants argue that such an action must always sound in tort. The undersigned does not agree. Initially, there was absolutely no mention of a fiduciary relationship or fiduciary duties in Dabney or any of the cases cited by Defendants as applying the Dabney rule. The plaintiffs in those cases were not asserting a breach of fiduciary duty claim. More importantly, both Greer, an Oklahoma Supreme Court case, and Quinlan, a Tenth Circuit case, were decided after Dab-ney. Both Greer and Quinlan describe breach of fiduciary duty claims as being based on agreements implied by law due to the relationship of trust, confidence and dominance held by directors of depository institutions. This is distinctively contract, and not tort, language. Had the Oklahoma Supreme Court intended for the Dabney rule to apply to breach of fiduciary duty claims, it certainly could have applied the rule to the fiduciary duty claims in Greer.
The two year statute of limitations in 12 Okla. Stat. § 95 provides that an action “for injury to the rights of another, not-arising on contract, and not hereinafter enumerated” may be brought within two years from the date the cause of action accrues. 12 Okla. Stat. § 95(3). From its own terms, this provision extends to, but not beyond, personal torts. Claims not based on personal torts are not covered by § 95(3) unless they do not arise on contract and are not included 'in other subsections of § 95. Thus, § 95(3) is not applicable to breach of fiduciary duty claims because under Oklahoma law fiduciary duty claims arise in part out of an implied by law contract.
See, e.g., Lee Houston &
Assoc.,
Ltd. v. Racine,
While a statute of limitations defense is a valid defense, it is one generally disfavored by the courts. Therefore, any doubts as to which of two statutes is applicable in a given case should be resolved in favor of applying the statute containing the longer limitations period.
Williams v. Lee
The choice of a three year versus a two year statute of limitations for breach of fiduciary duty claims also does not in any way violate or undermine the purposes sought to be served by statutes of limitation. “Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witness have died or disappeared, and evidence has been lost.”
Chase Securities Corp. v. Donaldson,
From a review of the authorities in Oklahoma, it appears that the four elements of an actionable breach of fiduciary duty claim are: (1) the existence of a fiduciary relationship, (2) a duty arising out of the fiduciary relationship, (3) a breach of the duty, and (4) damages proximately caused by the breach of duty. Damages are an essential element of a breach of fiduciary duty claim. As discussed earlier in section IV(A), supra, limitation periods in Oklahoma do not begin to run until all of the elements of a cause of action arise. As with a negligence claim,.a breach of fiduciary duty claim will not, therefore, accrue for statute of limitations purposes until damages are certain to occur and are not merely speculative. The analysis in section IV(A), supra, is applicable to Plaintiffs breach of fiduciary duty claims. As with Plaintiffs negligence claims, the undersigned is convinced that there are material factual issues as to what breaches of fiduciary duty caused harm to Sooner Federal for a particular loan, when those acts occurred, and when the harm caused by those acts was certain to occur and not speculative. Summary Judgment on Plaintiffs breach of fiduciary duty claims is, therefore, not appropriate. 20
CONCLUSION
The Northtown Investors loans are properly in this lawsuit. Plaintiff is not estopped from making its current accrual arguments. In Oklahoma, Plaintiffs negligence and contract claims are subject to the two year statute of limitations in 12 Okla. Stat. § 95(3). Plaintiffs breach of fiduciary duty claims are subject to the three year statute of limitations in 12 Okla. Stat. § 95(2). In Oklahoma, the statute of limitations on Plaintiffs negligence claims and breach of fiduciary duty claims began to run once it became certain and not speculative that Sooner Federal would suffer damages as a result of Defendants’ negligence and/or breaches of fiduciary duty. The undersigned is convinced that material questions of fact exist as to what breaches of duty caused harm to Sooner Federal for a particular loan, when those breaches occurred, and when the harm caused by those breaches was certain to occur. Therefore, the undersigned recommends that Defendants’ motions for summary judgment de DENIED.
If the parties so desire, they may file with the District Judge assigned to this case, within 10 days from the date they are served with a copy of this Report and Recommendation, objections to the undersigned’s recommended disposition of Defendants’ motions. See 28 U.S.C. § 686(b) and Fed.R.Civ.P. 72(b).
Notes
. See 28 U.S.C. § 636; Fed.R.Civ.P. 72; and N.D.LR72.1.
. See Doc. Nos. 75, 88, 89, 94, 225, 228, 269, 280, 296, 312 & 315.
. See Doc. Nos. 76, 77, 88-90, 97, 113, 117, 198, 201. 227. 278. 294. 296. 313. 315 & 316.
.See Doc. Nos. 78, 79, 88-90, 93, 198, 226, 279, 282, 296, 312, 314 & 315.
.See Doc. Nos. 80, 81, 88-90, 198.
. The OTS originally appointed the Resolution Trust Corporation ("RTC”) as Sooner Federal’s conservator. However, pursuant to the Resolution Trust Corporation Completion Act, 12 U.S.C. § 1441a(m)(l) and (2), the RTC ceased to exist after December 31, 1995. As of January 1, 1996, all assets and liabilities of the RTC were transferred to the FDIC as manager of the FSLIC Resolution Fund. See 12 U.S.C. § 1821a(a)(l). The FDIC has previously been substituted for the RTC as the Plaintiff in this action. A reference to the FDIC shall also be a reference to the RTC for that period of time when the RTC was in control of this litigation.
.
FDIC v. Regier Carr & Monroe,
. As discussed here, " 'federal common law’ is a rule of decision that amounts, not simply to an interpretation of a federal statute or a properly promulgated administrative rule, but, rather, to • the judicial 'creation' of a special federal rule of decision."
Atherton,
Defendants allege that the two Northtown Investors loans are not properly part of this lawsuit because Plaintiff did not list these loans in its original or amended complaints. Defendants allege that they first became aware that Plaintiff would seek to hold them liable for the Northtown Investors loans when Plaintiff listed them in its November 11, 1993 court-ordered Disclosure Report. [Doc. No. 311]. This issue will be discussed in section IV, infra.
. The applicable statute of limitations was Oklahoma’s three-year statute of limitations found at 12 Okla. Stat. § 95, which the Court borrowed in the absence of a specific federal statute of limitations.
Bryan,
. The First Amended and Second Amended Complaints are identical to the original Complaint in all material respects. The amended complaints simply add parties whose tolling agreements with Plaintiff had expired.
. The November 11, 1993 Disclosure Report was not filed by the parties until November 12, 1996. It was filed so that it could be considered as part of the record on Defendants' motions for summary judgment.
. Three United States District Courts within the Tenth Circuit have also determined that the FDIC is required to identify in its complaint the loan transactions on which it is attempting to hold, officers and directors of depository institu-lions liable.
See RTC
v.
Hess,
. Defendants cited
RTC v. Norris,
. In their Answers to Plaintiff's Second Amended Complaint, Defendants all responded to V 38 (i.e., the paragraph listing specific loans) with general denials. No specifics were alleged by Defendants in connection with any of the loans listed in ¶ 38. Thus, Defendants’ current Answers are sufficient and no further pleading is required in light of the amendment recommended by this Report arid Recommendation, unless Defendants desire to supplement their general denials with regard to the Northtown Investors loans.
. An action for trespass to real property and an action for negligence are both subject to the same statute of limitations. See 12 Okla. Stat. § 95(3).
. In ¶ 37(h), Plaintiff alleges that Defendants “[a]llowed loans to be made without collateral, or without collateral of sufficient value or without performing any significant evaluation of collateral accepted." - [Doc. No. 35, ¶ 37(h) ].
.
Farmers & Merchants National Bank v. Bryan,
. Plaintiff argues that Dabney is not entitled'to precedential value because it is a plurality opinion. Plaintiff is incorrect. On the point. just discussed, Dabney is a 5 to 3 decision, with one Justice not participating.
, Plaintiff agrees with Defendants that there is no oath involved here. In its pleadings, Plaintiff states that its claims are not premised on any oath taken by Defendants. See Doc. No. 88, p. 25 n. 5.
. The undersigned wishes to make it clear that this Report and Recommendation in no way addresses the validity of Plaintiffs breach of fiduciary duty claims under Oklahoma law. The only issue presented by Defendants' motions was what statute of limitations to apply to a properly stated claim for breach of fiduciary duty.