Federal Deposit Insurance Corporation v. Loudermilk et al

Filing 123

OPINION and ORDER denying as moot 106 Motion for Summary Judgment on Affirmative Defenses. The Defendants' Sixth, Seventh, Eighth, Ninth, Tenth, Twelfth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty-First, Twenty-Second, and Twenty-Third affirmative defenses are withdrawn. Signed by Judge Thomas W. Thrash, Jr. on 3/23/2016. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FEDERAL DEPOSIT INSURANCE
CORPORATION
as receiver for
The Buckhead Community Bank,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:12-CV-4156-TWT

R. CHARLES LOUDERMILK, SR., et
al.,
Defendants.

OPINION AND ORDER

This is a negligence case brought by the FDIC against the former officers and
directors of a failed bank. It is before the Court on the Plaintiff’s Motion for Summary
Judgment on Affirmative Defenses [Doc. 106]. The Plaintiff, the FDIC, moves for
summary judgment on the Defendants’ Sixth, Seventh, Eighth, Ninth, Tenth, Twelfth,
Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth, Twenty-First, TwentySecond, and Twenty-Third affirmative defenses. In their response to the motion for
summary judgment, the Defendants agreed to withdraw the challenged affirmative

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defenses.1 The Plaintiff’s motion for summary judgment should therefore be denied
as moot. The Defendants will be prohibited from presenting evidence as to the
withdrawn affirmative defenses at trial.
In its reply brief, however, the Plaintiff asks for more. It asks that all facts in its
statement of material facts be treated as established for the purpose of trial. Federal
Rule of Civil Procedure 56(g) states that “[i]f the court does not grant all the relief
requested by the motion, it may enter an order stating any material fact–including an
item of damages or other relief–that is not genuinely in dispute and treating the fact
as established in the case.”2 Given that the Defendants have agreed to withdraw the
challenged affirmative defenses and that this Court will bar them from presenting
evidence related to those defenses, there is no need to enter an order as would be
permitted, but not required, under Rule 56(g). The Plaintiff’s request is denied. For
the reasons stated above, the Plaintiff’s Motion for Summary Judgment on
Affirmative Defenses is DENIED as moot. The Defendants’ Sixth, Seventh, Eighth,
Ninth, Tenth, Twelfth, Thirteenth, Sixteenth, Seventeenth, Eighteenth, Twentieth,
Twenty-First, Twenty-Second, and Twenty-Third affirmative defenses are withdrawn.

1

Defs.’ Resp. to Pl.’s Mot. for Summ. J., at 2.

2

Fed. R. Civ. P. 56(g) (emphasis added).

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SO ORDERED, this 23 day of March, 2016.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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