On or about July 12, 1984, the Office of the Comptroller of
the Currency ("OCC") ordered that the Coffeen National Bank
(the "bank") be closed. The OCC took possession of the bank's
assets and tendered to the Federal Deposit Insurance
Corporation ("FDIC") the appointment as receiver of the bank.
Thereafter, the FDIC in its corporate capacity purchased the
assets of the bank from the FDIC in its capacity as receiver.
Included in the assets were all claims that the bank had
against its directors, officers, and employees for alleged
negligent performance or nonperformance of their duties.
Defendants were directors of the bank at relevant times herein.
Defendants allege as an affirmative defense that the FDIC's
action is time barred. Defendants allege that most of the
conduct on which Plaintiff's action is based occurred prior to
1979 and all of the acts occurred prior to August 1982.
Plaintiff filed its complaint July 10, 1987. Defendants moved
for partial summary judgment on October 17, 1988, and that
motion is now before the Court.
Under Fed.R.Civ.P. 56(c), summary judgment should be entered
"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."
Unquestionably, in determining whether a genuine issue of
material fact exists, the evidence is to be taken in the light
most favorable to the moving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d
142 (1970). Nevertheless, the rule is also well established
that the mere existence of some factual dispute will not
frustrate an otherwise proper summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509,
91 L.Ed.2d 202 (1986). Thus, the "preliminary question for the
judge [is] not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed
to find a verdict for the party producing it upon whom the onus
of proof is imposed." Id. at 251, 106 S.Ct. at 251 (quoting
Improvement Co. v. Munson, 81 U.S., (14 Wall.) 442, 448, 20
L.Ed. 867 (1872)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Applying
this standard, the Court now turns to the case at bar.
Thus, whether Plaintiff's cause of action sounds in tort or
contract, the relevant time period for determining when an
untolled statute of limitations begins to run is the date on
which the right of action first accrued.
The parties cite no, and the Court was unable to discover
any, Seventh Circuit authority interpreting the language of