United States District Court, N.D. Georgia, Newnan Division
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Southern Community Bank, Plaintiff,
JAMES S. CAMERON, GEORGE R. DAVIS, SR., ROBERT B. DIXON, JR., RICHARD J. DUMAS, WILLIAM W. LESLIE, JACKIE L. MACK, GARY D. MCGAHA, THOMAS D. REESE, and WILLIAM M. STRAIN, Defendants
For Federal Deposit Insurance Corporation, as receiver for Southern Community Bank, Plaintiff: Ashley Elizabeth Wilson, George P. Shingler, Joyce Gist Lewis, LEAD ATTORNEYS, Shingler Lewis LLC, Atlanta, GA; Christopher D. Kiesel, Kyle M. Keegan, LEAD ATTORNEYS, PRO HAC VICE, Keegan, DeNicola, Kiesel, Bagwell, Juban & Lowe, LLC, Baton Rouge, LA; Susannah M. DeNicola, LEAD ATTORNEY, Keegan, DeNicola, Kiesel, Bagwell, Juban & Lowe, LLC, Baton Rouge, LA.
For James S. Cameron, George R. Davis, Sr., Robert B. Dixon, Jr., Richard J. Dumas, William W. Leslie, Jackie L. Mask, Gary D. McGaha, Thomas D. Reese, William M. Strain, Defendants: Elizabeth Gingold Greenman, Alston & Bird, LLP - Atl, Atlanta, GA; Robert R. Long, IV, Alston & Bird, LLP-GA, Atlanta, GA.
Timothy C. Batten, Sr., United States District Judge.
Before the Court is Defendants' motion to dismiss for failure to state a claim .
Defendants are former directors of
Southern Community Bank, a state-chartered, nonmember bank headquartered in Fayetteville, Georgia. On June 19, 2009, less than ten years after its founding, the Georgia Department of Banking and Finance closed the bank. That same day the FDIC-R was appointed receiver.
On June 11, 2012, within three years of its appointment, the FDIC-R and Defendants entered into a written agreement that purported to toll the statute of limitations for six months. The FDIC-R promised not to sue Defendants during the tolling period without prior written notice, and in return Defendants promised not to plead any statute-of-limitations defenses related to the tolling period. This tolling agreement was extended five times, and the tolling period under the final agreement ended at 11:59 p.m. on June 18, 2013.
On June 18, 2013, nearly four years after its appointment and just hours before the sixth tolling agreement expired, the FDIC-R filed this action. It asserts claims of negligence and gross negligence against each Defendant for his or her part in approving the subject loans--seventeen loans approved by the bank's directors between July 23, 2004 and January 22, 2008.
Defendants have moved to dismiss for failure to state a claim. They argue that all of the FDIC-R's claims are untimely. For the reasons below, their motion will be granted in part and denied in part.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed for failure to state a claim where the plaintiff fails to plead " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir. 2012). The Supreme Court has explained this standard as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a " probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir. 2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are " enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
In considering a defendant's motion to dismiss under Rule 12(b)(6), the allegations in the complaint must be accepted as true and construed in the light most favorable to the plaintiff. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). But the court need not accept the plaintiff's legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. Thus, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the complaint that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, " assume their veracity and . . . determine whether they plausibly give rise to an entitlement to relief." Id. at 679.
A statute-of-limitations defense can support dismissal under Rule 12(b)(6) only if it is clear from the face of the complaint that the statute of limitations has run,
Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008), and " it appears beyond doubt that [the plaintiff] can prove no set of facts that toll the statute," Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n.13 (11th Cir. 2005) (quoting Knight v. E.F. Hutton & Co., 750 F.Supp. 1109, 1112 (M.D. Fla. 1990)) (internal quotation mark omitted).
The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) provides a federal statute of limitations for claims brought by the FDIC-R: the so-called " extender statute." 12 U.S.C. § 1821(d)(14); RTC v. Artley, 28 F.3d 1099, 1101 (11th Cir. 1994). This statute establishes a two-step inquiry that governs ...