Corporation's ("FDIC's") state law tort claims for negligence and breach of fiduciary duty against defendants Edwin Carey, Charles Marshall, Kenneth Phillips, Gilbert Demange and William Lancaster. Defendants Carey, Marshall, Lancaster and Demange have moved the court to reconsider that aspect of its ruling, in light of a recent Illinois Supreme Court decision, Collins v. Reynard, No. 70325, 1991 Ill. LEXIS 104 (October 31, 1991).
The November 13 ruling rested on this court's interpretation of the Illinois tort law economic loss doctrine articulated in Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 435 N.E.2d 443 (1982). In the November 13 ruling, the court explained that application of the doctrine hinged on whether the duties underlying the relationship sued upon were contractual or extra-contractual. (See 11/13/91 Memorandum Opinion and Order at pp. 10-12.) The court held that the duties owed by the defendant directors to the Lyons Savings and Loan were fiduciary in nature, and were therefore extracontractual. Consequently, tort claims implicating those duties were not barred. In the course of its analysis, the court noted that the Illinois Supreme Court, in 2314 Lincoln Park West Condominium Assoc. v. Mann, 136 Ill. 2d 302, 317-18, 555 N.E.2d 346, 353 (1990), had used language indicating that attorney malpractice actions, being rooted in extracontractual duties, would fall outside the scope of the Moorman doctrine. (See 11/13/91 Memorandum Opinion and Order at p. 11.)
The Illinois Supreme Court's recent Collins decision squarely holds that attorney malpractice actions are within the scope of Moorman. This decision, however, does not compel a reconsideration of this court's ruling of November 13, 1991. In reaching its conclusion that Moorman barred the plaintiff s tort action for attorney analysis applied by this court, i.e., it determined whether the underlying duties being sued upon were contractual or extracontractual. (See Slip Opinion at p. 6.) The Illinois Supreme Court concluded that the duties involved in the Collins attorney-client dispute, unlike those in the attorney malpractice cases previously referred to in the 2314 Lincoln Park West opinion, were solely contractual and ruled that the malpractice tort action was barred by Moorman. (See Collins Slip Opinion at pp. 5-6.)
The Illinois Supreme Court stated that "a different result may be reached where extracontractual, fiduciary or ethical duties are at issue," and expressly reserved judgment on that question. (See Collins crucial aspect of the November 13 ruling, that Moorman does not bar nor any of the briefs submitted in this case persuade this court that the defendant directors did not owe a fiduciary duty of care to the Lyons Savings and Loan or that the claims against them do not implicate that duty. Consequently, the Moorman doctrine does not bar the claims.
For the foregoing reasons, defendants' motion to reconsider is DENIED.
ON MOTION TO CERTIFY
Defendants Edwin Carey, Charles Marshall, Gilbert Demange and William Lancaster have moved the court to certify for immediate interlocutory appeal under 28 U.S.C. § 1292(b) the issue, addressed in this court's ruling or November 13, 1991, of whether 12 U.S.C. § 1821(k) ("§ 1821(k)") bars the FDIC's statelaw claims for negligence and breach of fiduciary duty.
Under 28 U.S.C. § 1292(b), a district court may certify an issue for immediate interlocurtory appeal only if it "involves a controlling question of law as to which there is substantial ground for difference of opinion" and if an immediate appeal "may materially advance the ultimate termination of the litigation." Application of this standard leads the court to conclude that the proposed question is inappropriate for certification, because the taking of an interlocutory appeal will not materially advance the ultimate termination of this litigation.
Reversal of this court's ruling on appeal would not end the litigation, even as to the moving defendants. A decision by the Court of Appeals that § 1821(k) barred the state law breach of fiduciary duty and negligence counts against the defendants would not affect the viability of the state law breach of contract claims asserted by the plaintiff. Further, there is the possibility that plaintiff Federal Deposit Insurance Corporation will be able to amend its complaint to conform to the requirements of § 1821(k), in which case litigation of federal gross negligence and breach of fiduciary duty claims would continue even if the federal statutory provision were held to preclude state law claims on those theories. Additionally, the issue of § 1821(k)'s impact on state law remedies does not affect all the defendants. At the very least, the fraud claims against Laurence Miller would still be viable even after a reversal by the Court of Appeals.
If this court's November 13 ruling were affirmed on interlocutory appeal, the litigation would have been delayed without substantial benefit except for the announcement of the Seventh Circuit's agreement with this court's determination. The court is, of course, confident in the correctness of its ruling and firmly believes that this scenario is the most likely outcome. In light of all these considerations, the court concludes that certification, which is a departure from the usual policy against piecemeal appeals, is not justified by the circumstances presented.
For the foregoing reasons, defendants' motion for certification for interlocutory appeal is DENIED.