Federal Deposit Insurance Corporation v. Ewell-Doll

Filing 16

ORDER denying 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge David G Campbell on 3/29/2012.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Federal Deposit Insurance Corporation, in
its Capacity as Receiver for Union Bank,
N.A.,

No. CV11-2446-PHX-DGC
ORDER

Plaintiff,

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vs.

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Bonnie Ewell-Doll,
Defendant.

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Plaintiff Federal Deposit Insurance Company (“FDIC”), in its capacity as receiver

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of Union Bank, N.A. (“Union Bank”), maintains a related action against several

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defendants in McDowell v. GECC Enterprises, Inc., No. 2:10-cv-2155-PHX-JRG (the

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“McDowell Action”). The defendant in this case, Bonnie Ewell-Doll in her individual

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capacity, is not a named party in the McDowell Action. Defendant Ewell-Doll has filed a

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motion to dismiss asserting that this action is duplicative of the McDowell Action.

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Doc. 8. The motion is fully briefed. Docs. 9, 11. For reasons stated below, the Court

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will deny the motion.1

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I.

Background.

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Union Bank, along with several other plaintiffs, filed a complaint in Pinal County

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Superior Court against GECC Enterprises, Inc., d/b/a Prudential American Associates

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Defendant’s request for oral argument is denied because the parties have fully
briefed the issues and oral argument will not aid the Court’s decision. Fed. R. Civ. P.
78(b).

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Real Estate (“Prudential”), several realtors that worked for Prudential, and several other

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defendants. The FDIC, after moving to be substituted as Receiver for Union Bank,

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removed the action to federal court.

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Defendant Ewell-Doll was the designated broker of Prudential during the time of

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the events alleged in the McDowell Action, but was not named in that action. Doc. 1-1.

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This case is based on the same events at issue in the McDowell Action. The FDIC

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alleges that Ewell-Doll ignored the legal advice provided to Prudential and the opinion of

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the Arizona Department of Real Estate in splitting land parcels and offering them for

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sale. See Doc. 1 at ¶ 14–17.

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II.

Analysis.

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Claims and actions duplicative of other claims and actions are subject to dismissal

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within the discretion of the district court. Adams v. Cal. Dep’t of Health Servs., 487 F.3d

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684, 688 (9th Cir. 2006). After weighing the equity of the case, the district court has

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discretion to dismiss the later-filed complaint with or without prejudice, to consolidate

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the actions, or to stay or enjoin proceedings. Id.

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In Adams, the plaintiff clearly sought to make an end-run around a district court’s

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ruling that precluded her from amending her complaint to add the very claims and parties

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she included in her later-filed complaint. A district court dismissed the second action

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because to do otherwise would have permitted the plaintiff, who delayed her assertion of

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claims in the first case, to nullify and disregard the district court’s rulings in the first

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action.

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No similar circumstance exists here. The FDIC has not sought to amend its

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complaint in the McDowell Action to assert the claims and name the parties that are part

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of this case. Although it is true that the deadline for amendments in the McDowell

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Action had passed when this case was filed, the court presiding over the McDowell

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Action had not precluded the claims asserted here, and Ewell-Doll does not argue that the

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claims asserted in this case were otherwise time-barred. The Court accordingly will

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exercise its discretion to deny the motion to dismiss. The FDIC has moved to consolidate
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this action with the McDowell Action, a motion that will be resolved by Judge Goodwin.

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If the motion is denied, continuation of this case before the undersigned judge will not be

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contrary to any order entered by Judge Goodwin.

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IT IS ORDERED that Defendant’s motion to dismiss (Doc. 8) is denied.

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Dated this 29th day of March, 2012.

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