Uhlig v. Darby Bank & Trust Co. et al

Filing 27

ORDER denying 25 Motion for Reconsideration. Signed by Judge B. Avant Edenfield on 03/12/2012. (lmm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
THOMAS UHLIG,
Plaintiff,
v.

4:11-cv-145

FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver of the
business and property of DARBY BANK
& TRUST CO., DRAYPROP, LLC,
DRAYPARK, LLC, MICHAEL
BROWN, REUBEN CROLL, and
MARLEY MANAGEMENT, INC.,
Defendants.
ORDER
Before the Court is Plaintiff Thomas
Uhlig’s (“Uhlig”) motion for reconsideration
of this Court’s January 4, 2012 Order
granting summary judgment in favor of
Defendant Federal Deposit Insurance
Corporation (“FDIC”). See Doc. 25.
The relevant facts are set forth in this
Court’s January 4, 2012 Order. See Doc. 24
at 1-2.
“Reconsideration of a previous order is
an extraordinary remedy to be employed
sparingly.” Groover v. Michelin N. Am.,
Inc., 90 F. Supp. 2d 1236, 1256 (M.D. Ala.
2000). It is appropriate “only if the movant
demonstrates that there has been an
intervening change in the law, that new
evidence has been discovered which was not
previously available to the parties in the
exercise of due diligence, or that the court
made a clear error of law.” McCoy v.

Macon Water Auth., 966 F. Supp. 1209,
1222-23 (M.D. Ga. 1997).
Initially, the FDIC argues that Uhlig
improperly raises a new legal argument in
his motion for reconsideration. See Doc. 26
at 2. The FDIC cites cases from other
districts in this circuit barring a litigant from
raising new legal arguments in a motion to
reconsider. See id. (citing cases from
Northern District of Georgia and Southern
District of Florida). The FDIC is correct
that Uhlig’s motion makes new legal
arguments. Although the Court discerns
wisdom in a rule forbidding new arguments,
the Court need not consider such a
resolution in this case because Uhlig’s
motion is meritless.
Uhlig avers that the Court erred in
finding the doctrine espoused in D ’Oench,
Duhme & Co. v. FDIC and its statutory
complement 12 U.S.C. § 1823(e) applicable
to this case. See Doc. 25 at 1-2; see also
315 U.S. 447 (1942). Uhlig contends that
D ’Oench does not apply to free-standing tort
claims that are unrelated to specific assets
acquired by the FDIC. See Doc. 25 at 3.
According to Uhlig, the Court did not
consider whether Uhlig’s claim was such a
claim and thus whether D ’Oench applied at
all. See id. at 1-2.
Uhlig is correct that D ’Oench “does not
bar free-standing tort claims that are
unrelated to any asset of the depository
institution.” Bufman Org. v. FDIC, 82 F.3d
1020, 1025 (11th Cir. 1996). “[T]he key
inquiry is whether the tort claim is unrelated
to a regular banking transaction. While a
‘regular banking transaction’ usually results
in the acquisition of an asset, such as a note,

by the insured depository, a regular banking
transaction can also create a liability in the
bank.” Id. (internal citation omitted). For
example, D ’Oench has been applied to
both a letter of credit and a promise to
extend a loan. See, e.g., OPS Shopping Ctr.,
Inc. v. FDIC, 992 F.2d 306, 309-11 (11th
Cir. 1993); Jackson v. FDIC, 981 F.2d 730,
735 (5th Cir. 1992).

of liability by a bank); see also, e.g., OPS
Shopping Ctr., 992 F.2d at 309 (letter of
credit); Jackson, 981 F.2d at 735 (promise to
make a loan).
The Hill Letter evinces, at most, a
promise to make a loan or extend a line of
credit. OPS Shopping Center and Jackson
indicate that letters of credit and promises to
make loans are regular banking transactions
and that claims relating to these transactions
are subject to D ’Oench ’s purview.
Furthermore, one would expect a promise to
make a loan to be reflected in the records of
a bank’s ordinary transactions, not in, for
example, the records of the bank department
that handled the sale or transfer of the
bank’s own stock. See OPS Shopping Ctr.,
992 F.2d at 309 (distinguishing case
involving line of credit from Vernon v.
FDIC, 981 F.2d 1230 (1993)).

“One obvious indicia of relatedness
would be whether the [conduct arguably
falling under D ’Oench involved] matters
that would generally be reflected in the
records of ordinary banking transactions.”
In re Geri Zahn, Inc., 25 F.3d 1539, 1543-44
(11th Cir. 1994).
Uhlig deems it undisputed that his
claims constitute free-standing tort claims.
See Doc. 25 at 4. Uhlig believes that the
FDIC’s assertion that this case does not
involve a loan made by Darby Bank
constitutes an admission of D’Oench ’s
inapplicability. See id. at 4 n.2. Uhlig
characterizes the Hill Letter, upon which
Uhlig bases his claim, as an attempt “to
induce potential buyers to purchase property
in the Drayton Tower building from the
developer and its agents,” an effort that
Uhlig understands as being unrelated to any
regular banking transaction. See id. at 5.

The Court concludes that Uhlig’s claims
based upon the Hill Letter are related to a
regular banking transaction. Accordingly,
D ’Oench applies.
Uhlig also attempts to relitigate the
FDIC’s motion for summary judgment. See
Doc. 25 at 5. Uhlig identifies no intervening
change in the law, new evidence, or
manifest errors of law. After the FDIC
identified the flaws in Uhlig’s case, Uhlig
failed to carry his burden of responding to
the FDIC. See Doc. 24 at 3-4. For the
reasons stated in this Court’s Order granting
the FDIC’s motion for summary judgment,
Uhlig’s attempt to relitigate is meritless.

Uhlig contorts the FDIC’s assertion that
this case does not involve a loan. See Doc.
17 at 2. Uhlig implicitly assumes that the
genus “regular banking transactions”
consists of only one species, actual loans.
This assumption, however, is faulty. See
Bufman Org., 82 F.3d at 1025 (noting that
“regular banking transactions” can result in
both acquisitions of assets and assumptions

Accordingly, the Court DENIES
Uhlig’s motion for reconsideration.

2

CONCLUSION
Uhlig’ s motion for reconsideration, see
Doc. 25, is DENIED.
This 12th day of March 2012.

2/ 96'

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R AVANT EDFNFIELO, JIJDGP
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA