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FEDERAL DEPOSIT INS. CORP. v. GREENWOOD

December 15, 1988

FEDERAL DEPOSIT INSURANCE CORPORATION, PLAINTIFF,
v.
RUSSELL GREENWOOD, J. ELLIS HICKS, JOHN L. SPINNER, MYREL L. WHITMYER, AND WILLIAM A. YOUNG, DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

Did the FDIC's cause of action accrue when it first acquired the assets of the failed Coffeen National Bank or when Defendants committed their allegedly negligent acts?

The latter: when the cause first could have been sued on.

I

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.

II

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.

III

Pursuant to 28 U.S.C. § 2415:

  (b) . . . Every action for money damages brought
  by the United States or an officer or agency
  thereof which is founded upon a tort shall be
  barred unless the complaint is filed within three
  years after the right of action first
  accrues. . . .

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 ยง ...


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