Grady et al v. Federal Deposit Insurance Corporation et al

Filing 122

ORDER, the claims against TCNB listed in the Second Amended Complaint are dismissed, and TCNB is dismissed as a Defendant; the motion to strike 57 is granted as to TCNB only. Signed by Judge James A Teilborg on 12/13/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiffs,
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vs.
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Bank of Elmwood; Elmwood Financial)
Corporation; Jonathan Levin; Sarah Levin,)
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Defendants.
_________________________________ )
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Tri City National Bank,
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Counterclaimant,
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vs.
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Michael Grady and Jennifer Grady,
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Counterdefendant.
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The Federal Deposit Insurance)
Corporation as Receiver for Bank of)
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Elmwood,
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Intervenor.
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Michael Grady; Jennifer Grady,

No. CV 11-2060-PHX-JAT
ORDER

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Pending before the Court is a motion to strike two claims from Plaintiffs’ Second

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Amended Complaint. Defendant Tri City National Bank (TCNB) argues that all claims

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against it should be dismissed because the Court, on futility grounds, denied Plaintiffs’

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motion to amend to add additional claims against TCNB (the Court allowed amendment as

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to other claims). Thus, TCNB argues that the Second Amended Complaint, which includes

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claims against it, runs afoul of the Court’s order.

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Plaintiffs respond and argue that the First Amended Complaint had claims against

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TCNB. Plaintiffs argue that the Second Amended Complaint reasserts those claims from the

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First Amended Complaint, but does not add new claims that the Court did not allow when

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the Court denied leave to amend. Plaintiffs go on to argue that the Court denying leave to

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amend to add new claims against TCNB did not operate to dismiss the claims against TCNB

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that were listed in the First Amended Complaint.

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TCNB replies and argues that the claims in the First Amended Complaint which

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Plaintiffs argue survived the motion to amend were claims against Bank of Elmwood. TCNB

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acknowledges that it acquired some of the Bank of Elmwood’s assets from the Federal

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Deposit Insurance Company (FDIC) after the FDIC took the Bank of Elmwood into

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receivership, but TCNB denies that it and Bank of Elmwood are one and the same for

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pleading and liability purposes.1 Further, TCNB notes that the FDIC, not TCNB, moved to

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be substituted for the Bank of Elmwood.

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The Court finds that Bank of Elmwood and TCNB are not one and the same. Thus,

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any claims against Bank of Elmwood in the First Amended Complaint do not continue to the

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Second Amended Complaint as claims against TCNB.

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Accordingly, IT IS ORDERED that the claims against TCNB listed in the Second

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Amended Complaint are dismissed, and TCNB is dismissed as a Defendant. Thus, the

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motion to strike (Doc. 57) is granted as to TCNB only.

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DATED this 13th day of December, 2012.

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The Court has reviewed the First Amended Complaint (Doc. 1-2 at 1) and notes that
TCNB is not named as a Defendant.
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