Federal Deposit Insurance Company v. Ching et al

Filing 73

ORDER signed by Judge Kimberly J. Mueller on 3/13/2015. The FDIC shall, within 14 days, file any Supplemental Briefing as allowed above. Thereafter, defendants shall have 7 days to file a Supplemental Reply addressing any arguments in FDIC's Supplemental Briefing. The Supplemental Briefing and Supplemental Reply shall not exceed 10 pages each. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11
12

FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
BUTTE COMMUNITY BANK,

13
14
15
16
17
18
19

Plaintiffs,

No. 2:13-cv-01710-KJM-EFB

ORDER

v.
ROBERT CHING, EUGENE EVEN,
DONALD LEFORCE, ELLIS
MATTHEWS, LUTHER McLAUGHLIN,
ROBERT MORGAN, JAMES
RICKARDS, GARY STRAUSS, HUBERT
TOWNSHEND, JOHN COGER AND
KEITH ROBBINS,
Defendants.

20
21
22

On December 29, 2014, defendants Robert Ching, Eugene Even, Donald Leforce,

23

Ellis Matthews, Luther McLaughlin, Robert Morgan, James Rickards, Gary Strauss, Hubert

24

Townsend, John Coger, and Keith Robbins moved for summary judgment against the Federal

25

Deposit Insurance Corporation (FDIC), acting as receiver for Butte Community Bank. Defs.’

26

Mot. Summ. J. (Mot), ECF No. 45. The FDIC opposed the motion on February 16, 2015, ECF

27

No. 58, and the defendants submitted a reply brief on March 6, 2015, ECF No. 66. The court

28

previously has submitted the matter on the briefing. Minute Order, ECF No. 70.
1

1

Having considered the briefing, the court provides an opportunity for supplemental

2

briefing as follows: Without the court’s prejudging the resolution of the pending motion for

3

summary judgment, the FDIC may assume for sake of argument that California Corporations

4

Code section 309 and 12 U.S.C. § 1821(k) apply to its complaint, rather than the statutes referred

5

to in the defendants’ motion as the “bank dividend statutes.” See Mot. 1:9–10. The FDIC may

6

cite and interpret any controlling or persuasive authority to show it has standing under

7

Corporations Code section 309 and 12 U.S.C. § 1821(k) to allege the directors’ negligence, gross

8

negligence, and breach of fiduciary duties “as the result of a May 2008 dividend,” Compl. ¶ 4,

9

ECF No. 1, in the circumstances alleged here, including Community Valley Bancorp’s approval

10
11

of the distribution, id. ¶¶ 5–16, 30–38.
The FDIC shall, within 14 days, file any supplemental briefing as allowed above.

12

Thereafter, defendants shall have 7 days to file a supplemental reply addressing any arguments in

13

the FDIC’s supplemental briefing. The supplemental briefing and supplemental reply shall not

14

exceed ten pages each.

15
16

IT IS SO ORDERED.
DATED: March 13, 2015.

17
18
19

UNITED STATES DISTRICT JUDGE

20
21
22
23
24
25
26
27
28
2