Becker Family Builders Co-Plaintiffs Group v. Federal Deposit Insurance Corporation as Receiver for Westsound Bank et al

Filing 90

SUPPLEMENTAL ORDER ON DEFENDANT FEDERAL DEPOSIT INSURANCE CORPORATION'S MOTION FOR SUMMARY JUDGMENT ON THE BECKERS, BURLINGAME AND CHRISTMANS' CLAIMS UNDER CR 56(b). Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA BECKER FAMILY BUILDERS COPLAINTIFFS GROUP, Plaintiffs, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for WESTSOUND BANK; and WSB FINANCIAL GROUP, INC., Defendants. This matter comes before the Court on the Defendant Federal Deposit Insurance Corporation's ("FDIC") Motion for Summary Judgment on the Beckers, Burlingame, and Christmans' Claims under CR 56(b) (Dkt. 39) and the Declaration of Joseph R. Christman in Opposition to Defendants FDIC's Motion for Summary Judgment Against Christman Claims and Becker Claims (Dkt. 88). The Court has reviewed the pleadings filed regarding the motion and the record herein. I. FACTS AND PROCEDURAL HISTORY CASE NO. C09-5477RJB SUPPLEMENTAL ORDER ON DEFENDANT FEDERAL DEPOSIT INSURANCE CORPORATION'S MOTION FOR SUMMARY JUDGMENT ON THE BECKERS, BURLINGAME AND CHRISTMANS' CLAIMS UNDER CR 56(b)

The facts and procedural history of this matter are stated in this Court's September 17, 2010, Order on Defendant FDIC's Motion for Summary Judgment on the Beckers, Burlingame, and Christmans' Claims under CR 56(b) (Dkt. 89, at 1-4) and is adopted here by reference. That

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Order granted the FDIC's motion to summarily dismiss all remaining claims and closed the case. Dkt. 89. The FDIC's motion was noted for consideration on September 10, 2010. Dkt. 39. The night before the order granting the summary judgment motion was filed (on September 16, 2010, at 11:00 p.m.), Plaintiffs filed the Declaration of Joseph R. Christman in Opposition to Defendants FDIC's Motion for Summary Judgment Against Christman Claims and Becker Claims ("Christman Declaration"). Dkt. 88. Mr. Christman states in his declaration that he had six development and/or construction loans with Defendant Westsound Bank. Dkt. 88, at 2. He states that on one loan the "Cambrian Avenue loan," Westsound refused to issue the last $400.00 per house so that they could finish the three houses and put them on the market. Dkt. 88, at 4. He states that Westsound improperly promised him extensions to the Cambrian Avenue loan and then failed to extend his loan's due date. Dkt. 88, at 5. He states that on another loan, the "Wildcat Lake loan," Westsound Bank pulled a "bait and switch." Dkt. 88, at 3. He asserts that he was assured by people at Westsound Bank that the Wildcat Lake loan would have an "interest carry" provision in it, when it did not. Dkt. 88, at 3. He also asserts that Westsound Bank told him that certain collateral would be required for the loan, but when he sat down to sign the loan paperwork, more collateral had been added. Dkt. 88, at 5. He does not provide a copy of the loan documents. The Christman Declaration was not considered when the ruling dismissing the Plaintiffs' claims was issued. II. A. DISCUSSION

TIMING OF PLAINTIFFS' OPPOSITION PAPERS

Pursuant to Western District of Washington Local Fed. R. Civ. P. 7(d)(3), opposition papers to a motion for summary judgment are due no later than the Monday before the noting date. Plaintiffs' opposition papers - the Christman Declaration (Dkt. 88) - was due on September 6, 2010. It was filed on the 16th of September, well after the FDIC filed its' reply.
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This motion has been renoted several times. Further briefing from the FDIC, although potentially helpful, is unnecessary in deciding the moiton. In the interest of fully and fairly considering the merits of the case, the Christman Declaration (Dkt. 88) shall be considered in light of the Court's prior order. B. FDIC'S MOTION FOR SUMMARY JUDGMENT

The September 17, 2010, Order's ruling dismissing all Plaintiffs' remaining claims should not be changed after consideration of the Christman Declaration. The law stated therein, and legal analysis is adopted here by reference (Dkt. 89). The Order held that the Plaintiffs' contract claims against the FDIC should be dismissed. Dkt. 89. Plaintiffs failed to comply with the requirements of the Financial Institutions Reform, Recovery and Enforcement Act ("FIRREA"), 12 U.S.C. § 1821, et seq. The prior Order's reasoning still applies. The ruling should not be altered even after consideration of the Christman Declaration. Consideration of the Christman Declaration also does not change the prior Order's ruling that the economic loss rule bars Plaintiffs' claims for negligence and negligent misrepresentation. Further , the prior Order's decision to dismiss Plaintiffs' claim for unjust enrichment should also remain. Plaintiffs still fail to point to any admissible evidence on any of the three elements of unjust enrichment. Lastly, the Christman Declaration does not alter the Court's decision to dismiss Plaintiffs' claims under Washington's Consumer Protection Act. The Order granting Defendant FDIC's Motion for Summary Judgment on Beckers, Burlingame, and Christmans' Claims under CR 56(b) (Dkt. 89) should supplemented as stated herein and affirmed. Further, Plaintiffs have had ample time to respond to this summary judgment motion (which was originally filed on July 20, 2010). No further opposition papers shall be considered.

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III. It is hereby ORDERED that: ·

ORDER

The Order granting Defendant FDIC's Motion for Summary Judgment on Beckers, Burlingame, and Christmans' Claims under CR 56(b) (Dkt. 89) is supplemented as stated herein, and the decision to grant the motion is AFFIRMED;

·

This case is DISMISSED. The Clerk is directed to send uncertified copies of this Order to all counsel of record and

to any party appearing pro se at said party's last known address. DATED this 23rd day of September, 2010.

A
Robert J. Bryan United States District Judge