Opinion
Case No. CV 11-00844 DDP (MANx).
April 20, 2011
[Motion filed on February 3, 2011]
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
This matter comes before the court on Defendant U.S. Bancorp's ("U.S. Bank")'s Motion to Dismiss BITH, LLC's ("Plaintiff")'s Fourth Amended Complaint ("Fourth AC"). After reviewing the papers submitted by the parties, considering the arguments therein, and hearing oral arguments, the court GRANTS the motion.
On November 21, 2008, Downey Savings and Loan Association, F.A. ("Downey Savings") was closed by the office of Thrift Supervision and the Federal Deposit Insurance Corporation ("FDIC") was appointed as receiver. Thereafter, the FDIC authorized the sale of Downey Savings to U.S. Bank. That sale was memorialized in a written Purchase and Assumption Agreement (the "Agreement").
Now, U.S. Bank moves this court to dismiss Plaintiff's Fourth AC because, according to U.S. Bank, Plaintiff has based its claim on an incorrect allegation, namely that U.S. Bank is the successor in interest to Downey Savings, and thereby the proper defendant for Plaintiff's claims. (U.S. Bank's Motion 5:18-24.) Instead, U.S. Bank argues that any claims Plaintiff had against Downey Savings must now be pursued against, and were retained by, the FDIC.
U.S. Bank would have this court take judicial notice of the terms, and related liabilities assumed, whereby U.S. Bank acquired the Downey Savings' assets. Specifically, U.S. Bank notes that in Article II, section 2.1(m)(ii) of the Purchase Agreement provides for the assumption of:
all asset related defensive litigation liabilities, but only to the extent such liabilities are covered by any loss share agreement; but excluding all other defensive litigation liabilities which shall be retained by the receiver.
(RJN 1, Art. II, § 2.1(m)(ii) (emphasis added).) Accordingly, U.S. Bank maintains that Plaintiff has not pled that Downey Savings was covered by any loss share agreement and, therefore, the FDIC, as receiver of Downey Savings, has retained any defensive litigation in this matter. The court agrees.
A court "ruling on a motion to dismiss may consider documents `whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.'" Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds; see also Laborers' Pension Fund v. Blackmore Sewer Constr., 289 F.3d 600, 607 (7th Cir. 2002) (taking judicial notice of information from the FDIC's website). The court, therefore, proceeds to consider the terms of the Agreement.
Under the Agreement, U.S. Bank assumed liability only for asset related defensive litigation liabilities and not for any other litigation liabilities. A claim for fraud against a Downey Savings employee is not an assumable asset and Plaintiff's Fourth AC contains no allegations that any asset related to its claims transferred from the FDIC-Receiver to U.S. Bank. Therefore, the court concludes that Plaintiff's has not plead that its claims are "asset related," and, therefore, any liabilities related to the Downey Savings were retained by the FDIC-Receiver.
Because U.S. Bank is not a proper defendant to this action, and because any proposed amendment would be futile, the court GRANTS U.S. Bank's Motion to Dismiss with prejudice.
IV. Conclusion
For the reasons set forth above, the court GRANTS U.S. Bank's Motion to Dismiss with prejudice.
IT IS SO ORDERED.