Opinion
Case No. 2:10-cv-00492-JAM-GGH.
July 23, 2010
Renée Welze Livingston (SBN 124280), Jason G. Gong (SBN 181298), LIVINGSTON LAW FIRM, A Professional Corporation, Walnut Creek, CA, Attorneys for Defendant, FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for INDYMAC FEDERAL BANK, F.S.B. (incorrectly sued as "INDYMAC FEDERAL BANK") and INDYMAC BANK, F.S.B., (incorrectly sued as "INDYMAC, F.S.B.").
On July 7, 2010 at 9:30 a.m. in Courtroom 6 of the above-captioned court, the Court considered the Motion to Dismiss or, in the alternative, Motion for Summary Judgment of the Defendant FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for IndyMac Bank, F.S.B. and IndyMac Federal Bank, F.S.B. ("FDIC/R"). Jason G. Gong, Esq., Livingston Law Firm appeared for Defendant and moving party FDIC/R. No appearance was made on behalf of Plaintiff Debra A. Garner ("Plaintiff" or "Garner") by her counsel of record, Jeffrey D. Tochterman.
Based upon the merits of the FDIC/R's unopposed motion and good cause appearing, the Court finds that Plaintiff's claims asserted against the FDIC/R in this action fail because the claims are moot and no longer cognizable in light of the FDIC Board of Directors' worthlessness determination regarding both of the IndyMac Receiverships. Because Plaintiff's claims do not present a justiciable case or controversy as required by Article III of the United States Constitution, the Court concludes that it lacks subject matter jurisdiction over Plaintiff's claims against the FDIC/R. To the extent that Plaintiff seeks declaratory and injunctive relief against the FDIC/R, the Court concludes that the claims are barred by 12 U.S.C. § 1821(j) and are likewise not cognizable.
For the foregoing reasons, IT IS HEREBY ORDERED, DECREED, and ADJUDGED that the Court lacks subject matter jurisdiction over Plaintiff's claims against the FDIC/R. Accordingly, the Court GRANTS Defendant FDIC/R's Motion to Dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(1) and DISSMISSES plaintiff's First Amended Complaint against the FDIC with prejudice.
The Court finds that sanctions are appropriate and will be imposed against Plaintiff's counsel, Jeffrey D. Tochterman, for counsel's failure to attend the July 7, 2010 hearing on the FDIC/R's Motion to Dismiss. Accordingly, the Court directs counsel for the FDIC/R to prepare and submit a declaration indicating the amount of attorneys' fees and costs that the FDIC/R has incurred for preparing and presenting its dispositive motion, including the time and expense that counsel has incurred to attend the July 7, 2010 hearing.
IT IS SO ORDERED.