FirsTier Bank, Kimball, Nebraska v. Federal Deposit Insurance Corporation et al

Filing 117

ORDER denying 112 Motion Authorizing Discovery by Magistrate Judge Michael J. Watanabe on 7/16/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03231-CMA-MJW (Consolidated for All Purposes with
Civil Action No. 11-cv-03404-CMA-MJW and
Civil Action No. 12-cv-00240-CMA-MJW)
FIRSTIER BANK, KIMBALL, NEBRASKA, a Nebraska Bank,
Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
FIRSTIER BANK, LOUISVILLE, COLORADO, a Colorado Bank in receivership,
Defendants.

ORDER REGARDING
MOTION AUTHORIZING DISCOVERY BY ADAMS BANK & TRUST
(DOCKET NO. 112)

This matter is before the court on the Motion Authorizing Discovery by Adams
Bank & Trust (docket no. 112). The court has reviewed the subject motion (docket no.
112), the response (docket no. 115) and the reply (docket no. 116). In addition, the
court has taken judicial notice of the court’s file and has considered applicable Federal
Rules of Civil Procedure and case law. The court now being fully informed makes the
following findings of fact, conclusions of law and order

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

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2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That on March 25, 2013, Judge Arguello granted the FDIC’s four
Rule 12(b)(1) and 12(b)(6) motions to dismiss the three cases that
make up this consolidated action and dismissed all three cases,
including a cross-claim by FirsTier Bank, Kimball, Nebraska
(“FTB-NE”) (the “Dismissal Order”) (docket no. 79);

5.

That on March 27, 2013, a final Judgment (docket no. 80) was
entered by the Clerk of the Court;

6.

That on April 10, 2013, the FDIC filed its Fee Motion (docket no.
87) seeking a contractual award of fees as the prevailing party
under the Loan Participation Agreement. After obtaining a 14-day
extension of time to respond, on May 15, 2013, the Reynolds firm,
on behalf of Adams, filed a response (docket no. 106) to the Fee
Motion (docket no. 87) together with an Affidavit and 95 pages of
exhibits. The FDIC filed its reply (docket no. 110) on May 29, 2013.
The Fee Motion (docket no. 87) and all other post-judgment
motions are fully briefed at this time;

7.

That on June 10, 2013, nearly a month after it filed its response
(docket no. 106) to the Fee Motion (docket no. 87) and two months
after the FDIC filed its Fee Motion (docket no. 87), Adams, this time
represented by the Baird firm, filed the subject Discovery Motion

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(docket no. 112) seeking discovery related to the Fee Motion
(docket no. 87) and leave to supplement the briefing on the Fee
Motion;
8.

That Adams’ Motion to Alter Judgment pursuant to Fed. R. Civ. P.
59(e) (docket no. 81); Adams’ Motion to Alter Judgment pursuant to
Fed. R. Civ. P 60(b) (docket no. 82); Adams’ Motion to Stay in
Case No. 12-cv-00240 (docket no. 83); Adams’ Motion to Alter
Judgment pursuant to Fed. R. Civ. P. 59(e)(docket no. 84); Adams’
Motion to Alter Judgment pursuant to Fed. R. Civ. P. 60(b) in Case
No. 11-cv-03404 (docket no. 85); Adam’s Motion to Stay in Case
No. 11-cv-03404 (docket no. 86) have all been ripe for ruling as of
May 8, 2013;

9.

That FDIC’s Motion for Attorney Fees and Costs (docket no. 87)
and FDIC’s Motion for Order to Terminate and Release Notice of
Claim to Real Estate Interest (docket no. 88) have both been ripe
for ruling as of May 29, 2013;

10.

That the request for discovery relating to the Fee Motion (docket
no. 87) is untimely. See E.E.O.C. v. Harris Farms, Inc., No. CIV F
02-6199 AWI LJO, 2006 WL 1028755, at *25 (E.D. Cal. Mar. 1,
2006) (finding that the time for filing a motion for discovery was at
the time of filing an opposition to a fee request, not after the court
had taken the matter under advisement), aff’d 274 Fed. Appx. 511
(9th Cir. 2008). In this case, it is clear that Adams was able to file a

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lengthy and detailed response to the Fee Motion (docket no. 87).
See Adam’s response (docket no. 106); and

11.

That the proposed discovery would cause unnecessary delay
noting that the Fee Motion (docket no. 87) is fully briefed and has
been fully briefed prior to the subject motion (docket no. 112) being
filed. Moreover, I find that the scope of the proposed discovery is
really an attempt to re-litigate the underlying claims which have
already been ruled upon by Judge Arguello. See Judge Arguello’s
Order dated March 25, 2013 (docket no. 79).

ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That the Motion Authorizing Discovery by Adams Bank & Trust
(docket no. 112) is DENIED;

2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 16th day of July 2013.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE