Von Rohr v. Reliance Bank et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs motion for entry of final judgment or interlocutory appeal [Doc. #30] is denied. Signed by District Judge Carol E. Jackson on 12/15/2014. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JERRY VON ROHR,
Case No. 4:13-CV-232 (CEJ)
MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion for entry of a final judgment,
pursuant to Fed.R.Civ.P. 54(b), or, in the alternative, to grant him leave to seek
interlocutory appeal pursuant to 28 U.S.C. 1292(b).
Defendant Federal Deposit
Insurance Corporation opposes the motion.
Plaintiff Jerry Von Rohr was employed as the chairman, president, and chief
executive officer of defendant Reliance Bank. In 2011, Reliance Bank notified him that
his employment contract would not be renewed upon its expiration on September 1,
2011. Plaintiff asserted that his contract did not expire until September 1, 2012, and
argued that he was entitled to compensation for an additional year. In response to an
inquiry from Reliance Bank, the Federal Deposit Insurance Corporation (FDIC) stated
that the payment plaintiff sought constituted a prohibited golden parachute which could
not be paid unless Reliance Bank certified that plaintiff was not responsible for the
bank’s troubled condition. Reliance Bank did not so certify.
On February 15, 2013, plaintiff filed suit against Reliance Bank and the FDIC.
In Count I plaintiff asserts a breach of contract claim against the bank and in Count II
he seeks a declaration that an award of compensation under his contract claim is not
prohibited by federal laws and regulations governing troubled institutions.1 At the
parties’ request, the court stayed the action while plaintiff applied to the FDIC for a
determination as to whether the payment he sought constituted a golden parachute.2
On October 28, 2013, the FDIC determined that the payment plaintiff seeks constitutes
a golden parachute under the Federal Deposit Insurance Act, 12 U.S.C. §
1828(k)(4)(A), and the FDIC’s regulations, 12 C.F.R. § 359.1, and cannot be paid
without the FDIC’s prior written approval. On May 20, 2014, the court upheld the
FDIC’s decision and dismissed plaintiff’s claim against the FDIC. Plaintiff now argues
that the outcome of his contract claim against Reliance Bank will be determined by
whether the FDIC decision is upheld on appeal and asks the court to enter final
judgment on Count II or allow him to seek interlocutory appeal before proceeding with
his contract claim against Reliance Bank.
Rule 54(b) provides:
Judgment on Multiple Claims or Involving Multiple Parties. When
an action presents more than one claim for relief . . . or when multiple
parties are involved, the court may direct entry of a final judgment as to
In his complaint, plaintiff asked the court to declare that his compensation is
not subject to the Troubled Asset Relief Program (TARP), 28 U.S.C. §§ 5201 et seq.,
which is administered by the Treasury Department, no the FDIC. The parties agreed,
however, that plaintiff could not recover contractual damages if they constituted a
golden parachute under the FDIC’s regulations.
The parties noted that plaintiff’s claim in Count II was subject to limited judicial
review of the administrative record and that, under the Administrative Procedures Act,
5 U.S.C. § 704 , the court arguably lacked jurisdiction over the claim until the FDIC
issued a written determination.
one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. . .
Fed.R.Civ.P. 54(b). The rule “provide[s] a practical means of permitting an appeal to
be taken from one or more final decisions on individual claims, in multiple claims
actions, without waiting for final decisions to be rendered on all the claims in the case.”
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956).
When deciding whether to grant Rule 54(b) certification, the district court must
undertake a two-step analysis. Williams v. Cnty. of Dakota, Neb., 687 F.3d 1064, 1067
(8th Cir. 2012).
The court must first determine that it is dealing with a final judgment . .
. in the sense that it is an ultimate disposition of an individual claim.
Second, [i]n determining that there is no just reason for delay, the
district court must consider both the equities of the situation and judicial
administrative interests, particularly the interest in preventing piecemeal
appeals. Certification should be granted only if there exists some danger
of hardship or injustice through delay which would be alleviated by
Id. at 1067-68 (internal quotations and citations omitted).
Several factors should be considered when determining whether a just reason
for delay exists:
(1) the relationship between the adjudicated and unadjudicated claims;
(2) the possibility that the need for review might or might not be mooted
by future developments in the district court; (3) the possibility that the
reviewing court might be obliged to consider the same issue a second
time; (4) the presence or absence of a claim or counterclaim which could
result in setoff against the judgment sought to be made final; (5)
miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of competing claims,
expense, and the like.
Downing v. Riceland Foods, Inc., No. 4:13CV321 (CDP) (E.D. Mo. Nov. 7, 2014)
(quoting Hayden v. McDonald, 719 F.2d 266, 269 (8th Cir. 1983)).
The FDIC determined that the payment plaintiff seeks cannot be paid without
its prior written approval of a Part 359 Payment Application. This application requires
a certification that plaintiff had no culpability or responsibility for the bank’s troubled
condition. Although the bank declined to file a Part 359 Application with the necessary
certification, plaintiff may do so on his own behalf. See 12 C.F.R. § 359.4(a)(4)
(insured depository institution or institution-affiliated party may request approval of
golden parachute payment). If the plaintiff files a Part 359 Application, any denial by
the FDIC will be appealable to this court. Under this circumstance, the court finds that
the May 17, 2014 order does not finally dispose of plaintiff’s claim against the FDIC for
the purposes of Rule 54(b).
28 U.S.C. § 1292(b) provides a mechanism through which a party can pursue
an interlocutory appeal.3 It has “long been the policy of the courts to discourage piecemeal appeals.” White v. Nix, 43 F.3d 374, 376 (8th Cir.1994) (internal quotations
Motions to certify issues for interlocutory appeal should be “granted
sparingly and with discrimination.”
Id. Therefore, § 1292(b) motions should be
granted only in “exceptional cases where a decision on appeal may avoid protracted
Section 1292(b) provides in pertinent part:
(b) When a district judge, in making in a civil action an order not
otherwise appealable . . . shall be of the opinion that such order involves
a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, he shall so
state in writing in such order. The Court of Appeals which would have
jurisdiction of an appeal of such action may thereupon, in its discretion,
permit an appeal to be taken from such order.
and expensive litigation.” Id. The movant bears the “heavy burden of demonstrating
that the case is an exceptional one in which immediate appeal is warranted.” Id. at
377. Section 1292(b) establishes three criteria for certification: the district court must
be “of the opinion that” (1) the order “involves a controlling question of law”; (2)
“there is substantial ground for difference of opinion”; and (3) certification will
“materially advance the ultimate termination of the litigation.” Id. at 377 (quoting
Paschall v. Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979)). These criteria
are not satisfied in this case. So long as plaintiff may obtain the relief he seeks from
the FDIC, certification of the May 17, 2014 order for immediate appeal is not
IT IS HEREBY ORDERED that plaintiff’s motion for entry of final judgment or
interlocutory appeal [Doc. #30] is denied.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 15th day of December, 2014.
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