First Financial Bank NA v. Claassen et al

Filing 29

ORDER granting 8 FDIC's motion to dismiss. Claassen's motion to remand FFB's complaint and Claassen's counterclaim to superior court (Doc. 23) is granted. The Clerk is directed to transfer this case to Maricopa County Superior Court. Signed by Judge David G Campbell on 11/22/11. (Attachments: # 1 Remand Letter). (LSP)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV11-1728-PHX DGC 11 First Financial Bank, N.A., as Successor in Interest to the Federal Deposit Insurance Corporation, as Receiver for Irwin Union Bank, Plaintiff, 12 v. 13 Theodore F. Claassen, an unmarried man, 10 14 ORDER Defendant 15 16 17 In December 2010, First Financial Bank (“FFB”) commenced a judicial 18 foreclosure and collection action against Claassen in Maricopa County Superior Court. 19 Doc. 14-1. Claassen filed a counterclaim against FFB in February 2011. Doc. 14-1. 20 Following the counterclaim, FFB filed a third-party complaint against the Federal 21 Deposit Insurance Corporation (“FDIC”) alleging indemnification, breach of contract, 22 breach of the implied duty of good faith and fair dealing, and breach of fiduciary duty. 23 Doc. 14-1. 24 § 1819(b)(2)(B) and 28 U.S.C. § 1442(a)(1), which grant the FDIC a statutory right to 25 remove cases in which it is a party. Doc. 1 at 2. The FDIC removed the lawsuit to this court pursuant to 12 U.S.C. 26 Following removal, the FDIC filed a motion to dismiss all of FFB’s claims 27 pursuant to Rules 12(b)(6) or, in the alternative, for summary judgment under Rule 56. 28 1 Doc. 8. FFB responded to the motion. Doc. 25. The FDIC then granted FFB’s request 2 for indemnification for “claims brought by Claassen that were based on the actions of the 3 FDIC-R or actions alleged to have been taken by FFB at the FDIC-R’s direction.” 4 Doc. 28 at 4; Doc. 28, Exhibit 1. The FDIC also filed a reply to FFB’s response, 5 claiming this agreement to indemnify FFB negated FFB’s claims of indemnification and 6 breach of contract to indemnify. Doc.28. The motions are fully briefed. Docs. 8, 25, 28. 7 No party has requested oral argument. For the reasons stated below, the court will grant 8 the motion to dismiss. 9 Defendant Claassen has filed a motion to sever FFB’s claims against the FDIC and 10 to remand FFB’s complaint and Claassen’s counterclaim to Superior Court. Doc. 15. 11 Because the FDIC’s motion to dismiss FFB’s claims will be granted, the Court will also 12 grant the motion to remand. Claassen’s request for oral argument is denied because the 13 issues are fully briefed and argument will not aid the Court’s decision. See Fed. R. Civ. 14 P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 15 I. FDIC’s Motion to Dismiss FFB’s Complaint. 16 A. Breach of Contract (count two) and Indemnification (count one). 17 FFB’s breach of contract and indemnification claims are based on Article XII of 18 its “Purchase and Assumption” agreement, which requires the FDIC to indemnify and 19 hold FFB harmless for certain claims. Doc. 25 at Exhibit 1C. FDIC granted FFB’s 20 request for indemnification on November 1, 2011. Id. Because of the FDIC’s grant of 21 indemnification, there is no present case or controversy regarding indemnity. “Litigants 22 will not satisfy the ‘actual controversy’ requirement when their dispute becomes moot 23 prior to judicial resolution.” Korvettes, Inc. v. Brous, 617 F.2d 1021, 1023-24 (3d Cir. 24 1980) (quoting Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)). 25 Counts one and two will be dismissed. 26 B. Breach of Fiduciary Duty (count four). 27 FFB’s claim for breach of fiduciary duty against the FDIC sounds in tort and is 28 -2- 1 therefore governed by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., 2 which does not “authorize suits against such federal agency on claims which are 3 cognizable under section 1346(b).” 28 U.S.C. § 2679(a). Neither party disputes that this 4 claim is governed by the FTCA and is cognizable under section 1346(b).1 5 Because FFB’s claim is cognizable under section 1346(b), it cannot be brought 6 against the FDIC itself. F.D.I.C v. Craft, 157 F.3d 697, 706-707 (9th Cir. 1998) (holding 7 that “an agency itself cannot be sued under the FTCA.”). FFB’s tort claim of breach of 8 fiduciary duty will be dismissed. C. 9 Breach of duty of good faith and fair dealing (count three). 10 FFB claims that the FDIC breached its duty of good faith and fair dealing by 11 violating a contractual obligation to indemnify. Doc. 14-1 at 12. FDIC counters that this 12 claim is duplicative of the count for breach of contract to indemnify. Doc. 8 at 7. “In 13 Arizona, a covenant of good faith and fair dealing is implied in every contract.” Maleki 14 v. Desert Palms Prof'l Props., LLC, 222 Ariz. 327, 214 P.3d 415, (Ariz.Ct.App.2009). 15 When a plaintiff merely alleges “[b]reach of an express term in a contract,” a claim for 16 breach of the covenant is not proper. Aspect Systems, Inc. v. Lam Research Corp., 2006 17 WL 2683642, at *3 (D.Ariz.2006); see also Ireland Miller, Inc. v. Shee Atika Holdings 18 Phoenix, LLC, 2010 WL 2743653 (D. Ariz. July 12, 2010) (a breach of duty of good faith 19 claim is duplicative of a breach of contract claim). Count three will be dismissed. 20 II. Claassen’s Motion to Remand. 21 Pursuant to the removal statute, 28 U.S.C. § 1441, any civil action brought in state 22 court over which the federal district courts have original jurisdiction may be removed to 23 24 25 26 27 28 1 FFB notes that a claim is “cognizable” if it alleges the six elements outlined in 28 U.S.C. § 1346(b): “[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” F.D.I.C. v. Meyer, 510 U.S. 471, 477, 114 S. Ct. 996, 1001, 127 L. Ed. 2d 308 (1994). FFB asserts that each of these elements is met, and FDIC does not dispute this assertion. Doc. 25 at 10; Doc. 27 at 3. -3- 1 the federal district court for the district where the action is pending. 28 U.S.C. § 1441(a). 2 However, “if at any time before final judgment it appears that the district court lacks 3 subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 4 The FDIC removed this case to federal court under 12 U.S.C. § 1819(b)(2)(B), 5 which provides “the Corporation may . . . remove any action, suit, or proceeding from a 6 State court to the appropriate United States district court,” and 28 U.S.C. § 1442(a)(1), 7 which allows a “civil action or criminal prosecution commenced in a State court against 8 . . . (1) [t]he United States or any agency thereof” to be “removed by them to the district 9 court of the United States.” Both statutes require that the agency be a party to the suit. 10 Because all claims against FDIC have been dismissed (see also Doc. 21), this case will be 11 remanded to state court. 12 IT IS ORDERED: 13 1. FDIC’s motion to dismiss (Doc. 8) is granted as stated above. 14 2. Claassen’s motion to remand FFB’s complaint and Claassen’s counterclaim 15 to superior court (Doc. 23) is granted. The Clerk is directed to transfer this 16 case to Maricopa County Superior Court. 17 Dated this 22nd day of November, 2011. 18 19 20 21 22 23 24 25 26 27 28 -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?