USCA1 Opinion
January 19, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1648
ST. HILAIRE & ASSOCIATES, INC.,
D/B/A CORSO ELECTRIC CO., ET AL.,
Plaintiffs, Appellants,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, ETC., ET AL.,
Defendants Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Gray H. Reiner, Reiner and Bouffard on brief for
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appellants.
Ricky L. Brunette, Law Office of Susan J. Szwed on brief for
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appellees.
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Per Curiam. Appellant, St. Hilaire & Associates, Inc.,
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D/B/A Corso Electric Co., and Albert St. Hilaire, appeal the
dismissal of their action against the Federal Deposit
Insurance Corporation [FDIC], as receiver for Numerica Bank,
Federal Savings Bank [Numerica], and the Resolution Trust
Corporation [RTC], as conservator for Homebank Federal
Savings Association [Homebank FSA]. We vacate the dismissal
and remand to the district court for further proceedings.
We take the following facts from the record, accepting
the facts pleaded in the complaint as true. In 1987 or 1988,
Albert St. Hilaire [St. Hilaire], president of St. Hilaire,
Inc. [the corporation], sought financing from Numerica Bank
of Manchester, New Hampshire. Subsequently, officers and
agents of Numerica indicated to St. Hilaire that they had
transferred to Homebank, Federal Savings Bank [Homebank FSB],
a fully owned subsidiary of Numerica. They also requested
that he allow them to transfer the financing arrangements for
the corporation to Homebank FSB as well. St. Hilaire agreed,
and in 1988, financing totalling approximately $450,000 was
provided by Homebank FSB. In 1991, Homebank FSB refused to
extend further credit to the corporation, and, as a result,
the corporation was forced to cease business operations.
Effective October 10, 1991, Numerica was declared
insolvent and the FDIC was appointed receiver. Homebank FSB
was closed on the same date. The RTC was appointed receiver
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of Homebank FSB. In its capacity as receiver, the RTC
entered into a Purchase and Assumption Agreement with
Homebank FSA, whereby essentially all of the assets and some
of the liabilities of Homebank FSB were transferred to
Homebank FSA. Among the assets transferred were the St.
Hilaire notes. The RTC was appointed conservator of Homebank
FSA.
In 1992, the RTC as conservator of Homebank FSA brought
suit against the corporation and against St. Hilaire in the
United States District Court for the District of Maine
seeking collection of the notes. In their answer to the
complaint, St. Hilaire and the corporation raised various
affirmative defenses. St. Hilaire asked, in particular,
that, if he were found personally liable on the note, he be
allowed to set off any claims which he would have against the
Numerica and Homebank as a result of administrative claims
which he had already initiated pursuant to 12 U.S.C.
1821(d). On October 23, 1992, the court granted summary
judgment to the RTC and found St. Hilaire personally liable.
On October 5, 1992, St. Hilaire and the corporation
initiated the instant suit in the United States District
Court for the District of New Hampshire. The complaint seeks
damages from the FDIC as receiver of Numerica and against the
RTC as conservator of Homebank FSA for breach of an implied
covenant of good faith and fair dealing; for violation of a
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joint venture agreement; and for breach of an oral contract.
The RTC as conservator filed a motion to dismiss alleging
that appellants had failed to file a claim under the
administrative claims process prior to commencing suit and
that, therefore, the federal court was without jurisdiction
to hear the claim pursuant to 12 U.S.C. 1821(d)(13)(D).
The RTC also sought dismissal on the grounds of res judicata.
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The district court dismissed the entire case on the ground of
lack of jurisdiction. It did not address the issue of res
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judicata.
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As the FDIC notes in its brief, "[t]his appeal comes to
this Court in a state of procedural confusion." First, the
FDIC advises this court that it never moved for dismissal
below. Not only should the district court not have
dismissed the complaint against the FDIC without such a
motion, see Greene v. Union Mut. Life Ins. Co., 764 F.2d 19,
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21-22 (1st Cir. 1985), but the FDIC also admits that it is
not entitled to such relief since appellants did file an
administrative claim with the FDIC. The claim was denied and
hence is properly before the district court. 12 U.S.C.
1821(d)(6)(A).
Second, the RTC as conservator now concedes that the
ground on which its motion to dismiss was granted was
improper. 12 U.S.C. 1821(d)(13)(D) limits the jurisdiction
of federal courts to those parties who have exhausted their
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administrative remedies as regards claims against the RTC as
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receiver. Since appellants in the instant case have sought
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relief only against the RTC in its capacity as conservator,
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the court erred in granting dismissal for failure to exhaust
administrative remedies.1
The RTC now asks this court to affirm the dismissal on
the alternate ground of res judicata. The essential elements
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of res judicata are a final judgment on the merits in an
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earlier action between identical parties or their privies and
an identity of causes of action in the earlier and later
suits. See, e.g., Kale v. Combined Ins. Co., 924 F.2d 1161,
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1165 (1st Cir), cert. denied, 112 S. Ct. 69 (1991). The
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decision by the United States District Court of the District
of Maine is clearly a final judgment between the RTC as
conservator and the appellants.
However, we think it is unwise to attempt to determine
the res judicata issue in the first instance. It was not
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addressed by the district court and has not been extensively
briefed in this court. Accordingly, we vacate the dismissal
as to the RTC without prejudice to its right to assert the
res judicata defense on remand in the district court.
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The order dismissing the action against the FDIC and
against the RTC is vacated and the case is remanded for
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1. Appellants do not appear to accept this concession since
they continue to argue that they in fact did exhaust their
administrative remedies.
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further proceedings. No costs.
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