USCA1 Opinion
January 7, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1552
ANN B. LOVELL, ETC.,
Plaintiff, Appellant,
v.
PEOPLES HERITAGE SAVINGS BANK, ET AL.,
Defendants, Appellees.
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No. 93-1553
ANN B. LOVELL, ETC., ET AL.
Plaintiffs, Appellants
v.
THE ONE BANCORP, ET AL.
Defendants, Appellees
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Richard E. Poulos with whom John S. Campbell and Poulos &
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Campbell, P.A. were on brief for appellants.
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Robert S. Frank with whom Christopher J. Devlin and Verrill &
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Dana were on brief for FDIC as receiver for Maine Savings Bank.
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Rufus E. Brown with whom Drummond Woodsum Plimpton & MacMahon was
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on brief for Frederick W. Pape, Jr.
John F. Batter, III with whom Hale and Dorr was on brief for
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Nancy Masterton, as personal representative of the Estate of Robert
Masterton.
Thomas D. Warren, Director, Litigation Unit, with whom Michael E.
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Carpenter, Attorney General, and Peter J. Brann, Assistant Attorney
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General, were on brief for Maine Superintendent of Banking.
Catherine R. Connors with whom Ralph I. Lancaster, Jr., Daniel M.
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Snow, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were on
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brief for Peoples Heritage Savings Bank.
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Per Curiam. In these consolidated appeals,
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plaintiffs-appellants argue that the district court erred in
summarily disposing of their claims relating to their right
to a distribution of the net worth of two mutual savings
banks (MSBs) following the banks' conversion to stock savings
institutions. See generally Lovell v. Peoples Heritage Sav.
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Bank, 818 F. Supp. 427 (D. Me. 1993); Lovell v. One Bancorp,
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818 F. Supp. 412 (D. Me. 1993). We affirm.
Plaintiffs failed to come forward with proof of a
constitutionally-protected property interest in a
distribution of the surplus of the MSBs, the linchpin of the
bulk of their claims. In answering questions certified by
the district court, the Maine Supreme Judicial Court (SJC)
held that Maine law does not give plaintiffs any right to a
distribution of the surplus of MSBs as part of the conversion
process. Lovell v. One Bancorp, 614 A.2d 56, 67 (Me. 1992).
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Absent a state property right, plaintiffs' plea for federal
constitutional protection is in vain. Chongris v. Board of
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Appeals, 811 F.2d 36, 43 (1st Cir.) ("[P]roperty rights,
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while protected by the federal Constitution, are creatures of
state law.") (citing, inter alia, Board of Regents v. Roth,
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408 U.S. 564, 577 (1972)), cert. denied, 483 U.S. 1021
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(1987).
Plaintiffs argue in the alternative that the
Constitution at least protects their contingent interest in a
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distribution of the "liquidation accounts" of the new
institutions. These accounts are the current repository of
the reincarnated surplus of the former MSBs. While the SJC
opinion does support plaintiffs' claim to such an interest,
see Lovell, 614 A.2d at 67 (recognizing depositors'
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contingent interest in a pro rata distribution of a bank's
surplus), plaintiffs have not produced trial-worthy proof
that the contingency -- a solvent liquidation -- would ever
occur. In fact, as the record stands now, it is essentially
undisputed that a solvent liquidation is a very remote
possibility. As a result, the district court may have been
correct in concluding that the contingent interest in the
liquidation accounts did not rise to the level of an
expectancy deserving constitutional protection. See One
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Bancorp, 818 F. Supp. at 420-21; Peoples Heritage, 818 F.
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Supp. at 431; cf. Society for Sav. v. Bowers, 349 U.S. 143,
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150 (1955) (observing that interest of mutual savings bank
depositor in bank's undivided earnings, contingent on the
"unlikely event of a solvent liquidation, . . . hardly rises
to the level of an expectancy"). Nonetheless, rather than
basing the availability of constitutional protection on the
expected value of an alleged property interest, we focus
instead on the alternative reasoning offered by the district
court.
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Even if plaintiffs could prove a cognizable
property interest in the liquidation accounts, the undisputed
facts would still support summary judgment for defendants
with respect to each alleged violation of constitutional
property rights. Plaintiffs have proven themselves
singularly unable to show any tangible financial harm
sufficient to support a claim under the Takings Clause, see
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Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124
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(1978) (suggesting that proof of economic impact is essential
to show a violation of the Takings Clause), or the Contract
Clause, see General Motors Corp. v. Romein, 112 S. Ct. 1105,
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1109 (1992) (holding that "substantial impairment of a
contractual relationship" is an essential component of a
Contract Clause claim) (quoting Allied Structural Steel Co.
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v. Spannaus, 438 U.S. 234, 244 (1978)). Nor would a trial
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serve any useful purpose with respect to the alleged
violations of procedural due process; it is a matter of
record that plaintiffs had notice of the proposed conversion
and an opportunity to respond. We agree with the district
court that plaintiffs were "entitled to accurate, informative
notice, not to their particular characterizations of the
information being disseminated." One Bancorp, 818 F. Supp.
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at 426.
We likewise fail to see any merit in the allegation
that defendants violated plaintiffs' substantive due process
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and equal protection rights. As explained in the district
court's trenchant opinions below, there are entirely rational
reasons for the transfer of the surplus of the MSBs to the
liquidation accounts of the new stock institutions, as well
as the differing rights of account holders in the conversion
of an MSB and policy holders of a mutual insurance company
during an arguably analogous conversion. See id. at 423-24;
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Peoples Heritage, 818 F. Supp. at 431.
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We also agree with the district court concerning
plaintiffs' state law claims. In response to another
certified question, the SJC held that plaintiffs were
procedurally barred from pursuing their state common law
claims following (1) the issuance of a certificate of
conversion by the state and (2) the failure of plaintiffs to
seek judicial review under Maine's Administrative Procedure
Act. Lovell, 614 A.2d at 62. Plaintiffs' attempt to have
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this court overrule or modify Maine's highest court on this
point of state law is entirely unavailing. Moreover, the
district court is unquestionably correct in concluding that
the logic used by the SJC in deciding the viability of the
common law claims disposes of the state statutory claims as
well. See One Bancorp, 818 F. Supp. at 425-26; Peoples
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Heritage, 818 F. Supp. at 431. As all of plaintiffs' state
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law claims are procedurally barred, summary judgment was
inescapably appropriate.
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Accordingly, the judgments of the district court
are
Affirmed.
Affirmed.
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