Free Notice (Other) - District Court of Delaware - Delaware

Case 1:08-cv-00429-GMS

Document 17

Filed 08/19/2008

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE __________________________________________ ) FIRST BANK OF DELAWARE, ) ) Plaintiff, ) ) v. ) 1:08-cv-429-GMS ) FEDERAL DEPOSIT INSURANCE ) CORPORATION, ) ) Defendant. ) __________________________________________) August 19, 2008

NOTICE OF FILING SUPPLEMENTAL EXHIBIT Defendant Federal Deposit Insurance Corporation hereby submits as a supplemental exhibit the attached letter, dated August 12, 2008, from counsel for FDIC to counsel for plaintiff First Bank of Delaware. In the reply brief in support of its motion for a preliminary injunction (D.I. 15), filed by plaintiff on August 14, 2008, plaintiff included as exhibits a series of letters between counsel for plaintiff and counsel for FDIC. However, plaintiff neglected to include the attached letter, sent two days before the reply brief was filed. This letter directly addresses many of plaintiff's contentions, and is hereby submitted to the Court in the interest of completeness.

Case 1:08-cv-00429-GMS

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Respectfully submitted this 19th day of August, 2008,

/s/ Daniel H. Kurtenbach______ Daniel H. Kurtenbach (DC Bar No. 426590) Ashley Doherty (DC Bar No. 336073) Thomas L. Holzman (DC Bar No. 950162) Martha W. McClellan (VA Bar No. 17255) Counsel Federal Deposit Insurance Corporation Legal Division, Corporate Litigation Unit 3501 N. Fairfax Drive, VS-D7022 Arlington, VA 22226 Telephone (703) 562-2465 Facsimile (703) 562-2475 [email protected] [email protected] [email protected] [email protected] Attorneys for Defendant Federal Deposit Insurance Corporation OF COUNSEL Charles L. Cope (DC Bar No. 70672) Senior Counsel

Erik Haas Karla G. Sanchez Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036-6710

Case 1:08-cv-00429-GMS

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CERTIFICATE OF SERVICE I hereby certify that on August 19, 2008, the foregoing NOTICE OF FILING SUPPLEMENTAL EXHIBIT was sent to the following via First Class Mail, postage prepaid: Larry J. Stein Jeremiah S. Buckley Matthew P. Previn Robert B. Serino BUCKLEY KOLAR LLP 1250 24th Street, N.W., Suite 700 Washington, DC 20037

/s/ Daniel H. Kurtenbach______ Daniel H. Kurtenbach Counsel, Federal Deposit Insurance Corporation

Case 1:08-cv-00429-GMS

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FDIC
Federal Deposit Insurance Corporation
3501 Fairfax Drive, Arlington, VA 22226
Legal Division

Via First Class Mail and Facsimile

August 12, 2008

Jeremiah S. Buckley, Esquire Buckley Kolar LLP 1250 24th Street NW, Suite 700 Washington, DC 20037
Re: Fzrst Bank of

Delaware v. FDIC, No. 1 :08-cv-00429-GMS (D. DeL.)

Dear Mr. Buckley:

to point out that given the pace of

This responds to your letter dated August 5, 2008. As a preliminar matter, I think it is important this litigation and other matters being handled by this offce, the FDIC may not respond immediately to your letters; please understand that the lack of an immediate response to your correspondence does not mean or imply that the FDIC agrees with its content.

I disagree with your conclusion that the Ban's fiing of its motion, followed by the filing of the FDIC's opposition to that motion, will create any burden on the Court or procedural uncertainty,
much less anything that the Court has to "untangle."
In our view, the portion of

the Local Rule that you cite, D. DeL. LR 7.1.2(a), is inapplicable. The

operative provision appears earlier in that paragraph:

Unless otherwise ordered, all requests for relief shall be presented to the Court by the motion the motion. A moving pary must clearly ariculate within the body of relief requested and the grounds in support thereof, or must accompany the motion with either a supporting brief or a memorandum of points and authorities.
This provision gives the moving party two options: it may combine the arguent in support of

its motion with the motion itself, in one document, or "accompany" its motion with a separate brief or memorandum. Nothing in this provision suggests that a moving pary can fie a motion and then file a supporting brief or memorandum at its leisure at some later date. Nor does the provision suggest that the responding party is relieved of its obligation to respond if the moving party chooses not to accompany its motion with a supporting legal analysis.
Further, Local Rule 7. 1.2(b) states, in relevant par:

Case 1:08-cv-00429-GMS

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-2Schedule. Unless otherwise ordered, once a motion has been deemed served, the response thereto shall be filed within 10 days, as calculated consistent with Fed. R. Civ. P. 6(a) and (e) and CM/CF Procedures. Once the responsive papers have been deemed served, the moving pary may file a reply within 5 days, as calculated consistent with Fed. R. Civ. P. 6(a) and (e) and CMIECF Procedures.
The Ban's motion was served on the FDIC on July 16,2008, by maiL. See Certificate of

Service

by Larr J. Stein (July 16, 2008). The 10-day response period provided by Fed. R. Civ. P. 6(a)
began on July 17; excluded the day of

the event and Saturdays and Sundays because the response time was less than 11 days; and expired on July 30, 2008. The additional three-day period under Fed. R. Civ. P. 6(d) did not expire until Monday, August 4,2008, the day the FDIC filed its brief in opposition.

In several of your letters, you cite, as support for the proposition that the FDIC is obligated to
produce the "administrative record," the case of

Parker v. Ryan, 959 F.2d 579 (5th Cir. 1992). That case (which is not binding on the district court in this case) requires a federal baning

regulatory agency that has issued a temporar cease and desist order to present a prima facie case
by supplying a "verified statement." Denying a motion for an injunction, the Fifth Circuit found

the requirement of a prima facie case satisfied by the attestation under penalty of peijury, to the facts set forth in the notice of charges and the temporary order, of an OTS supervisor responsible for the institution's examination. The two declarations filed by the FDIC in this case likewise present a prima facie case here.

We look forward to receiving your reply to our opposition to your motion for preliminar injunction, which is due August 14,2008. On a final administrative note, the FDIC has engaged the firm of Patterson Belknap Webb & Tyler LLP to assist in this matter. Please include the following attorneys on any future correspondence:
Gregory L. Diskant, Esquire Erik Haas, Esquire Karla G. Sanchez, Esquire Patterson Belknap Webb & Tyler LLP the Americas 1133 Avenue of New York, NY 10036-6710

;f
Cc: Edmund D. Johnson, Esq.
2

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