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Federal Deposit Insurance Corporation As v. Patrick O'connor & Associates

March 21, 2012

FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR LA JOLLA BANK, FSB,
PLAINTIFF,
v.
PATRICK O'CONNOR & ASSOCIATES, L.P., D/B/A O'CONNOR & ASSOCIATES, DEFENDANT. PATRICK O'CONNOR & ASSOCIATES, L.P., D/B/A O'CONNOR & ASSOCIATES, COUNTERCLAIMANT,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER FOR LA JOLLA BANK, FSB, COUNTERDEFENDANT.



The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court

ORDER GRANTING MOTION TO DISMISS COUNTERCLAIM AND DENYING LEAVE TO AMEND ANSWER AND TO FILE THIRD-PARTY COMPLAINT

Pending before the Court are the "Motion to Dismiss Counterclaim Pursuant to F.R.C.P. 12(b)(6)" (Dkt. No. 23) brought by Plaintiff Federal Deposit Insurance Corporation (the "FDIC") and the "Motion for Leave to File Amended Answer and Third Party Action" (Dkt. No. 31) brought by Defendant Patrick O'Connor & Associates, L.P., d/b/a O'Connor & Associates ("O'Connor"). For the reasons set forth herein, the Court DISMISSES O'Connor's counterclaim without prejudice, and DENIES O'Connor's motion for leave to amend and for leave to file a third-party complaint without prejudice.

I. BACKGROUND

This case arises out of a negligence and professional malpractice claim brought by La Jolla Bank, FSB ("LJB") against O'Connor in Texas state court on November 10, 2008 (the "Texas action"). In the complaint in the Texas action, LJB alleged that it hired O'Connor to appraise an apartment complex in Angelina, Texas, that was to serve as collateral for a loan that a third party had requested from LJB. (Dkt. No. 1, Ex. 1 ("Plaintiff's Original Petition"), at 20 of 136.) LJB alleged that it relied on O'Connor's appraisal of the apartment complex's value of $1,540,000 in reaching its decision to make a loan to the third party in the amount of $1,155,000. (Id.) The apartment complex, according to LJB, turned out to be "in far worse condition than indicated on the report provided by" O'Connor, and "the value of the property . . . should have been appraised at $815,000.00." (Id.) Ultimately, the third party defaulted on the loan, and LJB's complaint seeks damages on the grounds that it would not have entered the loan agreement but for O'Connor's negligent appraisal.

On April 15, 2010, O'Connor filed a counterclaim in the Texas action. Without alleging any specific facts, the counterclaim asserts:

Given the facts and circumstances of the appraisal, the relationship between the Defendant and the Plaintiff, and the fraud committed in the transaction by the Plaintiff's borrower, Plaintiff's claims and causes of action against the Defendant are groundless. Furthermore, Plaintiff's suit against Defendant is a breach of the agreement between Plaintiff and Defendant concerning the ordering, preparation, delivery and reliance upon the appraisals performed by Plaintiff. . . . Defendant would show that Plaintiff's claims against the Defendant violate Rule 13 in that they were brought in bad faith and for purposes of harassment, with the specific purpose of extracting an unfair settlement on groundless claims. . . . Defendant is entitled to recover its reasonable attorneys fees from the Plaintiff through trial of this matter and for appeals of this matter as provided for in Rule 13.

(Dkt. No. 1, Ex. 17 ("Defendant's Counterclaim"), at 103-04 of 136.)

On February 19, 2010, LJB was closed by the Office of Thrift Supervision and the FDIC was appointed as receiver. (Dkt. No. 1 ("Notice of Substitution and Notice of Removal") at 1.) On July 7, 2010, the FDIC removed the Texas action to this Court. (Id.)

II. STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n] that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009) (internal quotation marks omitted).

A party may amend its pleading more than 21 days after serving it only with leave from the Court. Fed. R. Civ. P. 15(a)(2). The Court should freely give leave when justice so requires. Id.

A defendant may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. Fed. R. Civ. P. 14(a)(1). Where, as here, the defendant/third-party plaintiff seeks to file the third-party complaint more than 14 days after serving its original answer, it must obtain the Court's leave by motion. Id.

III. DISCUSSION

O'Connor's counterclaim fails to raise O'Connor's "right to relief above the speculative level." O'Connor spends the bulk of its counterclaim repeating its broad and unsupported claims that the Plaintiff's "causes of action against the Defendant are groundless" and that "they were brought in bad faith and for the purpose of harassment," and repeating its demand for "reasonable and necessary attorneys fees." (Dkt. No. 1, Ex. 17 ("Defendant's Counterclaim"), at 103-04 of 136.) On ...


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