MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant's Motion for Summary
Judgment [Doc. No. 554]. The Court, having considered the motion, briefs,
relevant law and being otherwise fully informed, finds that the motion is
well taken and will be GRANTED.
First American Savings Bank of Santa Fe, New Mexico ("First
American"), formerly Taos Savings and Loan Association of New Mexico, was
a chartered state institution that was acquired by a group of Dallas
investors, including Defendant Bernard Schuchmann, in February 1985. On
August 30, 1990, the Resolution Trust Corporation ("RTC") was appointed
Receiver of First American on the grounds that First American had engaged
in numerous unsafe and unsound practices and was insolvent. On that same
day, the Office of Thrift Supervision created First American Federal
Savings Bank ("First American Federal"), which received certain assets of
First American, including claims against former directors, officers and
attorneys of First American, pursuant to a Purchase and Assumption
Agreement, dated August 31, 1990. RTC was then appointed Receiver of
First American Federal on November 29, 1990.
In 1993, RTC brought this action against certain former directors,
officers, attorneys, and third party transferees of First American for
breach of fiduciary duty,
gross negligence, negligence, and aiding and
abetting. The claims against all of the defendants, except Bernard and
Tara Schuchmann, were dismissed prior to trial.*fn1 On January 9, 1996,
Plaintiff gave notice to the Court of the statutory succession and
substitution by the Federal Deposit Insurance Corporation ("FDIC")
for RTC as Receiver of First American Federal and as the plaintiff
in this civil action [Doc. No. 246].
On March 6, 1998, Defendants Bernard and Tara Schuchmann moved for
partial summary judgment [Doc. No. 293], arguing that certain transactions
could not be included in Plaintiff FDIC's cause of action because they
were time-barred by the applicable statute of limitations. In opposition
to Defendant's motion, Plaintiff argued that the statute of limitations
should be tolled under the doctrine of "adverse domination." In his
December 2, 1998 Order [Doc. No. 421], Judge Bunton denied Defendant's
motion because he found a genuine dispute over a material fact of whether
there was "adverse domination." FDIC v. Schuchmann, CIV No. 93-1024, slip
op. at 12 (D.N.M. Dec. 2, 1998).
This case then went to trial, and a jury returned a verdict on
December 11, 1998, finding Defendant Bernard Schuchmann negligent only
with respect to the Custer Road Loan and the Omni Real Estate Loan, but
finding no proximate cause between Defendant's negligence and Plaintiff's
damages. Therefore, the jury did not award any damages for the negligence
regarding these loans. The jury also found no gross negligence or breach
of fiduciary duties by Defendant Bernard Schuchmann, and specifically
found no "adverse domination." The trial court also granted Defendant
Tara Schuchmann's Motion for Judgment as a Matter of Law, dismissing
all claims against Ms. Schuchmann with prejudice [Doc. No. 478].
The Tenth Circuit "reverse[d] the district court's judgment with regard
to the Omni loan transaction and remand[ed] for further proceedings" due
to a faulty jury instruction. FDIC v. Schuchmann, 235 F.3d 1217, 1227-28
(10th Cir. 2000). The Tenth Circuit, however, affirmed all other aspects
of the jury trial, including the jury's finding of no "adverse domination."
Id. at 1229-30. Thus, Defendant Bernard Schuchmann is the only remaining
defendant in this civil matter, and the sole claim against him pertains
to the Omni loan transaction.
Summary judgment is an integral part of the Federal Rules of Civil
Procedure, which are intended to "`secure the just, speedy and
inexpensive determination of every action.'" Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). Under Rule 56(c),
summary judgment is appropriate when the court, viewing the record in the
light most favorable to the non-moving party, determines that "there is
no genuine dispute over a material fact and the moving party is entitled
to judgment as a matter of law." Thrasher v. B & B Chemical Co.,
2 F.3d 995, 996 (10th Cir. 1993).
The movant bears the initial burden of showing "there is an absence of
evidence to support the nonmoving party's case." Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Once the movant
meets this burden, Rule 56(e) "requires the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the `depositions, answers
to interrogatories, and admissions on file,' designate specific facts
showing that there is a genuine issue for trial." Celotex, 477 U.S. at
324. "Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no `genuine issue for
trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Although the material submitted by the parties in support of and in
opposition to the motion must be construed liberally in favor of the party
opposing the motion, Harsha v. United States, 590 F.2d 884, 887 (10th
Cir. 1979), the burden on the moving party may be discharged by
demonstrating to the district court that there is an absence of evidence
to support the nonmoving party's case, see Celotex, 477 U.S. at 325. In
such a situation, the moving party is entitled to judgment as a matter of
law "because the nonmoving party has failed to make a sufficient showing
on an essential element of her case with respect to which she has the
burden of proof." Id. at 322.
Defendant argues that he is entitled to summary judgment as a matter of
law concerning the one remaining claim in this dispute — the Omni
loan made in August 1985. With regard to the Omni loan, the jury made a
finding of negligence, but no damages or proximate cause. This jury
verdict was reversed by the Tenth Circuit and remanded for further
proceedings due to a faulty jury instruction. However, the jury also made
a finding of no adverse domination concerning the Omni loan, and this
finding was affirmed by the Tenth Circuit. Thus, Defendant argues that
even though the Omni loan claim has been remanded to the district court,
summary judgment on that claim is, nevertheless, warranted under the
doctrine of "law of the case" because Plaintiff's one defense against the
statute of limitations bar — adverse domination — has been
found not to exist by a jury, and this finding was subsequently affirmed
by the Tenth Circuit.
Plaintiff, on the other hand, relies on the Tenth Circuit's statement
that "[w]holesale reversal on the Omni loan transaction is necessary
because [it was] unable to speculate as to how a proper instruction would
have affected the jury's findings with regard to the issues of gross
negligence, breach of fiduciary duties, proximate cause and damages."
Schuchmann, 235 F.3d at 1228 n. 8. Plaintiff interprets the Tenth
Circuit's directive to require a reversal of all findings pertaining to
the Omni loan, including the finding of no adverse domination, thus
mandating a new trial on that factual issue. Furthermore, Plaintiff
asserts that the Tenth Circuit rejected a similar argument when the panel
rejected Defendant's Petition for Panel Rehearing, and that numerous
factual issues should be resolved at trial in order to determine whether
or not the Omni loan falls within the statute of limitations.
I. Statute of Limitations
The parties have agreed that the statute of limitations for this
action is governed by the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 ("FIRREA"), which provides in pertinent part:
Notwithstanding any provision of any contract, the
applicable statute of limitations with regard to any
by the Corporation as conservator or
receiver shall be . . . the longer of . . . the 3-year
period beginning on the date the claim accrues; or .
. . the period applicable under State law.
12 U.S.C. § 1821 (d)(14)(A)(ii) (West 2001). In this case, the
applicable statute of limitations is four years pursuant to New Mexico
state law. See N.M. Stat. Ann. § 37-1-4 (Michie 1978).
The FIRREA also provides that:
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 date
(i) the date of the appointment of the Corporation as
conservator or receiver; or
(ii) the date on which the cause of action accrues.