Thinkstream Acquisition, LLC v First NBC Bank

Filing 10

ORDER: IT IS ORDERED that the 7 motion to stay is GRANTED. The above-captioned matter is hereby STAYED for 180 days from the date of this Order or until this Court grants a motion to reopen, as described below. IT IS FURTHER ORDERED that the abov e-captioned matter is ADMINISTRATIVELY CLOSED, for statistical purposes only, without prejudice to the parties' rights to reopen the case after 180 days or after the FDIC denies Plaintiff's claims for administrative relief, whichever occurs first. IT IS FURTHER ORDERED that Plaintiff shall, within 180 days from date of this Order or thirty (30) days after the FDIC denies Plaintiff's claims for administrative relief, file either a motion to reopen the case and to set a preliminary conference or a motion to dismiss. Signed by Judge Ivan L.R. Lemelle on 6/26/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THINKSTREAM ACQUISITION, LLC

CIVIL ACTION

VERSUS

NO. 17-4872

FIRST NBC BANK

SECTION "B"(5)
ORDER

Before

the

Corporation’s

Court

Motion

is

to

the

Stay

“Federal

Action

Deposit

Pending

Insurance

Exhaustion

of

Administrative Remedies.” Rec. Doc. 7. The motion was set for
submission

on

June

21,

2017.

Pursuant

to

Local

Rule

7.5,

Plaintiff’s memorandum in opposition was due on or before June 13,
2017. No memorandum in opposition has been filed. Further, no party
filed a motion to continue the noticed submission date or a motion
for an extension of time within which to oppose the motion.
On April 28, 2017, Defendant First NBC Bank was closed and
the Federal Deposit Insurance Corporation (“FDIC”) was confirmed
as receiver. See Rec. Doc. 7-4. Under the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (“FIRREA”), “[a]fter
the appointment of a . . . receiver for an insured depository
institution, the . . . receiver may request a stay for a period
not to exceed . . . 90 days . . . in any judicial proceeding to
which

such

institution

is

or

becomes

a

party.”

12

U.S.C.

§

1821(d)(12)(A)(ii). “Upon receipt of a request by any . . .
receiver . . . for a stay of any judicial action or proceeding in

any court with jurisdiction of such action or proceeding, the court
shall

grant

such

stay

as

to

all

parties.”

12

U.S.C.

§

1821(d)(12)(B) (emphasis added).
Here, the FDIC requests a stay of 180 days to allow the
parties to exhaust the administrative remedies provided by the
FIRREA. Rec. Doc. 7 at 1; see also 12 U.S.C. § 1821(d)(3)-(5).
Because the administrative process may take 180 days, courts have
recognized that “while a 180-day stay is not mandatory, ‘such a
stay must be implied to effectuate the purpose of the act.’”
Zaremba Grp., LLC v. FDIC, No. 10-11245, 2010 WL 3805190, at *2
(E.D. Mich. Sept. 23, 2010) (quoting Guar. Residential Lending,
Inc. v. Homestead Mortg. Co., No. 04-74842, 2009 WL 5214877, at *2
(E.D. Mich. Dec. 28, 2009)) (citing Marquis v. F.D.I.C., 965 F.2d
1148, 1151-52 (1st Cir. 1992); Meliezer v. Resolution Trust Co.,
952 F.2d 879, 882 (5th Cir. 1992) (“Although FIRREA does not
explicitly mandate exhaustion of administrative remedies before
judicial intervention, the language of the statute and indicated
congressional

intent

make

clear

that

such

is

required”)).

Accordingly,
IT IS ORDERED that the motion to stay (Rec. Doc. 7) is
GRANTED. The above-captioned matter is hereby STAYED for 180 days
from the date of this Order or until this Court grants a motion to
reopen, as described below.

IT IS FURTHER ORDERED that the above-captioned matter is
ADMINISTRATIVELY CLOSED, for statistical purposes only, without
prejudice to the parties’ rights to reopen the case after 180 days
or after the FDIC denies Plaintiff’s claims for administrative
relief, whichever occurs first.
IT IS FURTHER ORDERED that Plaintiff shall, within 180 days
from date of this Order or thirty (30) days after the FDIC
denies Plaintiff’s claims for administrative relief, file either
a motion to reopen the case and to set a preliminary conference or
a motion to dismiss. FAILURE TO TIMELY FILE SUCH MOTION MAY LEAD
TO SANCTIONS, INCLUDING DISMISSAL, WITHOUT FURTHER NOTICE. See FED.
R. CIV. P. 41(b).
New Orleans, Louisiana, this 26th day of June, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE