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BERENS v. LUDWIG

May 22, 1997

MARK H. BERENS, Plaintiff,
v.
EUGENE LUDWIG, Comptroller of the Currency, and MARQUETTE BANK, N.A., as successor in interest to Marquette Bank Shakopee, N.A., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court is plaintiff Mark H. Berens' motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). For the reasons that follow, the court denies Berens' motion.

 I. BACKGROUND

 The court fully set out the facts underlying Berens' cause of action in its memorandum opinion and order, dated February 13, 1997, granting summary judgment against Berens and for defendant Comptroller of the Currency. See Berens v. Ludwig, 953 F. Supp. 249 (N.D. Ill. 1997). All of those facts need not be repeated here, but the court will summarize the relevant ones and relate the facts not at issue in the first opinion.

 Berens owned 33 shares of stock in Marquette Bank Shakopee, N.A. ("Shakopee"), making him a minority shareholder in Shakopee. On January 1, 1995, Marquette Bancshares, Inc. ("MBI"), Shakopee's majority shareholder, consolidated Shakopee with 10 other banks and received 100 percent of the stock of the consolidated institution, defendant Marquette Bank, N.A. ("Marquette Bank"). MBI had offered Berens $ 12,071 per share of stock that he owned, but Berens felt that this price was too low.

 Accordingly, Berens sought an appraisal of his stock by the Comptroller of the Currency ("Comptroller") pursuant to 12 U.S.C. § 215(d), which allows any interested party in a bank consolidation to request that the Comptroller appraise a dissenting shareholder's stock. The Comptroller's appraisal is final and binding on all parties. After receiving evidence from both Berens and Marquette Bank with respect to the value of the stock, the Comptroller considered the parties' materials and conducted his own analysis of the stock's value.

 On November 8, 1996, Berens and Marquette Bank entered into an agreed order and stipulation, which provided as follows:

 
1. The Bank shall be bound by the value ascribed to its stock at issue in this cause by the adjudication of this case, whether entered by this Court by way of judgment or settlement or established by a reappraisal of the stock by the Office of the Comptroller of the Currency ("OCC");
 
2. The Bank shall be obligated to compensate Berens for the value of his stock on the basis described in paragraph 1. Such compensation shall be due to Berens on or before the tenth day following (1) entry of judgment fixing the value of the Bank stock, or (2) if the Court orders the OCC to perform a reappraisal of the stock, the delivery of such reappraisal;
 
3. The compensation due to Berens by virtue of the foregoing shall credit the Bank for funds already tendered to Berens by the Bank for Berens' Bank stock, which funds total $ 430,106.16. Berens shall be entitled to cash the check tendered to him by the Bank for this purpose, and such acceptance of those funds by Berens shall not be construed in any respect as an accord and satisfaction or in any wise as a release of Berens' continuing claim for greater compensation for his Bank stock....
 
4. On the basis of the foregoing provisions, the Bank shall be and hereby is dismissed from this action with prejudice, subject to its continuing obligations set forth above....

 (Def.'s Mem. in Opp. to Pl.'s Mot. to Alter or Amend J. Ex. A.)

 On February 13, 1997, the court granted the Comptroller's motion for summary judgment, finding that the Comptroller's appraisal was reasonable and entering judgment for the Comptroller and against Berens. The consequence of this ruling was that Marquette Bank, in May 1996, paid Berens the correct amount of money for his ...


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