Lange v. Hoskins et al

Filing 111

MEMORANDUM AND ORDER -The intervenor's motion for summary judgment (filing 90 -1) and any related filings are denied as moot. The magistrate judges findings, recommendation and order (filing 79 ) are adopted and sustained. The plaintiffs state ment of objections and request for oral argument (filing 81 ) are denied. The defendants motion to compel arbitration (filing 42 ) is granted, and this case is stayed; in all other respects, the motion is denied. The parties shall each file a status report, not less than once every 4 months, regarding the progress of their arbitration. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICK D. LANGE, as Chapter 7
Trustee of the Bankruptcy Estate of
TierOne Corporation,
Plaintiff,
v.

KPMG LLP,
Defendant.

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4:12CV3148

MEMORANDUM
AND ORDER

This matter is before the court on the findings, recommendation and order
entered by Magistrate Judge Cheryl R. Zwart on March 5, 2013 (filing 79).1 Judge
Zwart has recommended that: (1) filing 42, the defendant’s motion to compel
arbitration should be granted in part and denied in part; (2) filings 5 and 13, the
defendant’s previously filed motions to compel arbitration, should be denied as moot;
and (3) filing 30, the plaintiff’s motion to remand and abstain, should be denied. She
1

Three weeks after Judge Zwart entered the findings, recommendation and
order, this case was referred to the bankruptcy court because the plaintiff had raised
certain jurisdictional issues concerning a complaint in intervention that was filed by
the Federal Deposit Insurance Corporation, as receiver for TierOne Bank. The referral
was withdrawn on October 24, 2013, but proceedings were then stayed while the
plaintiff, FDIC-R, and individual defendants (former officers and directors of TierOne
Corporation) engaged in settlement negotiations. Those negotiations have now been
successfully concluded, and today a final judgment has been entered dismissing with
prejudice the plaintiff’s claims against the individual defendants and FDIC-R’s
complaint in intervention. The judgment renders moot a motion for summary
judgment that was filed by FDIC-R while the case was on referral to the bankruptcy
court, and leaves for decision only the claims alleged by the plaintiff against KPMG.

also granted in part and denied in part filing 57, the plaintiff’s motion to allow the
filing of supplemental evidence, an evidentiary hearing and oral argument on the
motion to compel arbitration. On March 19, 2012, the plaintiff objected to Judge
Zwart’s findings, recommendation, and order, and requested oral argument (filing 81).
I find and conclude after de novo review, and without need for any additional
discussion, that Judge Zwart has correctly found the facts and applied the law. Her
findings and recommendation will be adopted,2 her order will be sustained, and the
plaintiff’s objections and request for oral argument will be denied.
Accordingly,
IT IS ORDERED:
1.

The intervenor’s motion for summary judgment (filing 90-1) and any
related filings are denied as moot.

2.

The magistrate judge’s findings, recommendation and order (filing 79)
are adopted and sustained.

3.

The plaintiff’s statement of objections and request for oral argument
(filing 81) are denied.

4.

The defendant’s motion to compel arbitration (filing 42) is granted, and
this case is stayed; in all other respects, the motion is denied.

5.

The parties shall each file a status report, not less than once every 4
months, regarding the progress of their arbitration.

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I will, however, direct the parties to file periodic status reports regarding the
progress of their arbitration.
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6.

The defendant’s previously filed motions to compel arbitration (filing 5,
13) are denied as moot.

7.

The plaintiff’s motion to remand and abstain (filing 30) is denied.

8.

The clerk of the court shall close this case for statistical purposes.

April 21, 2014.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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