Altamaha Riverkeeper, Inc. v. U.S. Army Corps of Engineers et al
Filing
52
ORDER granting in part and denying in part 50 Motion to Stay; granting in part and denying in part 51 Motion to Amend/Correct. Signed by Judge B. Avant Edenfield on 2/13/13. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
ALTAMAI-IA RIVERKEEPER, INC.,
Plaintiff,
V.
6:09-cv-47
FRED NEAL WOLFE; SOUTHERN
CAPITAL DEVELOPMENT GROUP
LLC; MONTGOMERY BANK & TRUST,
Respondent.
ORDER
Before the Court is the Federal Deposit Insurance Corporation's ("FDIC") Notice of
Appointment and Substitution of Receiver and to Stay Proceedings. ECF No. 51. The FDIC
requests the Court (1) grant a ninety day stay of the ongoing remedial actions associated with this
case's settlement in 2010, and (2) substitute the FDIC for Montgomery Bank.
Id. As the Court
is statutorily obligated to substitute the FDIC as a party, that portion of the notice is GRANTED.
The stay request, effectively mooted by the passage of time and posture of this case, is DENIED.
On December 16, 2010, this Court executed a consent judgment in this case that resolved
all claims affecting a parcel of real property and required Montgomery Bank to engage in
remediation of that land. See ECF No. 49. Almost two years later, on July 6, 2012, the Georgia
Department of Banking and Finance took possession of Montgomery Bank and appointed the
FDIC as receiver. ECF No. 51 at 2. One month after its appointment, the FDIC filed the instant
notice. See id
.1
Pursuant to 12 U.S.C. § 1821(d)(2)(A), the FDIC succeeded to all rights and powers of
Montgomery Bank upon its appointment as receiver. And when it files a notice of substitution,
like the notice now before the Court, the FDIC as receiver automatically becomes a party to an
action. See FDIC v. N. Savannah Props., LLC, 686 F.3d 1254, 1260 (11th Cir. 2012). The FDIC
is accordingly SUBSTITUTED as a party in place of Montgomery Bank, which has "vanishe[d]
in a puff of smoke." Id. at 1259.
12 U.S.C. § 1821(d)(12) also allows the FDIC, within ninety days of appointment as
receiver of a failed institution, to request a stay of "any judicial action or proceeding to which" it
becomes a party. See also Damiano v. FDIC, 104 F.3d 328, 334 (11th Cir. 1997). Although the
stay may not exceed ninety days, a "court shall grant such stay as to all parties" if requested in
the proper timeframe. 18 U.S.C. § 1821(d)(12). The purpose of the stay is to give the receiver
"a chance to analyze pending matters and [to] decide how best to proceed," not to afford the
FDIC unbounded discretion to seek stays at any point post-appointment as receiver.
Damiano,
104 F.3d at 334.
The FDIC here requested a stay well within ninety days of its appointment as receiver.
See ECF No. 51 at 2. The rub is that (1) over 200 days have passed since the FDIC's
appointment as receiver of Montgomery Bank (i.e., the FDIC has had plenty of time to analyze
pending matters, if any); and (2) no pending litigation exists—this Court retains jurisdiction only
to enforce the terms of the final judgment, including Montgomery Bank's mandated remediation
efforts. See ECF No. 49 at 10. In other words, the passage of time and the procedural posture of
this case effectively moot the stay request. See Praxis Props, Inc. v. Colonial Say. Bank, S.L.A.,
947 F.2d 49, 70-71 (3d Cir. 1991) (holding that § 1821(d)(12) "entitles the receiver to a stay
whose outer bound is 90 days after the receiver's appointment (no matter when the receiver
requests).") (emphasis added), cited with approval in Damiano, 104 F.3d at 334.
Although the FDIC timely filed its notice of a stay, the time period of the stay's efficacy
has long since expired. The Court cannot engage in a pointless exercise of its authority. The
request for a stay is therefore DENIED.
The requested substitution of the FDIC for
Montgomery Bank, however, is GRANTED.
day of February, 2013
The
/
B. AVAN E E IELD, JUDGE /
UNITED STATES DISTRICT COU1T
SOUTHERN DISTRICT OF GEORGIA
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