Opinion
4:12CV3148
04-21-2014
RICK D. LANGE, as Chapter 7 Trustee of the Bankruptcy Estate of TierOne Corporation, Plaintiff, v. KPMG LLP, Defendant.
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). 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 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).
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 The referral was withdrawn on October 24, 2013, but proceedings were then stayed while the plaintiff, FDIC-R, and individual defendants (former officers and directors of TierOne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.
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, her order will be sustained, and the plaintiff's objections and request for oral argument will be denied.
I will, however, direct the parties to file periodic status reports regarding the progress of their arbitration.
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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.
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.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge