Case: 1:13-cv-01767 Document #: 48 Filed: 11/22/13 Page 1 of 14 PageID #:541
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
ELBERT ELMORE, VIRGINIA
BROWNING, NORMAN REIHER and
No. 13 C 1767
Judge Amy J. St. Eve
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On March 7, 2013, Plaintiff Federal Deposit Insurance Corporation (“FDIC”), in its
capacity as Receiver for InBank, filed a three-count Complaint against Defendants Elbert
Elmore, Virginia Browning, Norman Reiher, and Robert Romero (collectively, “Defendants”).
(R. 1, Compl.) The Complaint alleges the following: Count I – Negligence (In the Alternative to
Count III); Count II – Gross Negligence (12 U.S.C. § 1821(k)); Count III – Breach of Fiduciary
Duty as to Defendant Romero (In the Alternative to Count I). Defendants Browning, Reiher, and
Romero filed a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) and Defendant Elmore filed a separate motion to dismiss. (R. 22; R.
28.) Defendants filed a joint memorandum in support of their motions to dismiss. (R. 25, Mem.)
For the reasons set forth below, the Court denies Defendants’ motions to dismiss.
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Plaintiff alleges the following facts, which the Court deems true for purposes of this
InBank, an Illinois-chartered, nonmember, FDIC-insured bank was founded in 1970
under the name Interstate Bank of Oak Forest (“Interstate”). (Compl. ¶ 14.) Its main office was
located in Oak Forest, Illinois, and it had branch offices in Chicago, Illinois and Tinley Park,
Illinois. (Id.) In 2008, Interstate changed its name to InBank. (Id.) On September 4, 2009, the
Illinois Department of Financial and Professional Regulation (“IDFPR”) closed InBank and
appointed the FDIC as receiver. (Id., ¶ 5.) Pursuant to that appointment, the FDIC succeeded to
all rights, titles, powers and privileges of InBank and the stockholders, depositors, and other
parties interested in the affairs of InBank. See 12 U.S.C. § 1821(d)(2)(A)(i) (2010).
The FDIC, as receiver for InBank, filed the instant Complaint against Defendants in an
effort to recover approximately $6.8 million in losses that the bank had suffered on numerous
commercial real estate (“CRE”) and acquisition, development and construction (“ADC”) loans.
(Compl. ¶ 1.) Each Defendant was a member of InBank’s Loan Committee during all relevant
times for purposes of the Complaint. (Id., ¶¶ 7-10.) The Loan Committee was responsible for
approving InBank’s loans. (Id., ¶ 7.) Elmore was a founder of InBank and served as CEO from
the founding until March 12, 2008, and as a member of the Board from the founding until July
30, 2009. (Id.) Browning was a Senior Vice President from the founding of the bank until
March 25, 2009, and served as a member of the Board from April 20, 2005 until March 25, 2009.
(Id., ¶ 8.) Reiher was a founder of InBank and served as a member of the Board throughout the
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bank’s existence. (Id., ¶ 9.) Romero was InBank’s Vice President of Lending and Senior
Lending Officer1 from April 19, 2005 until September 4, 2009. (Id., ¶ 10.)
The FDIC alleges that in 2004, InBank began substantially expanding its lending
activities outside its primary trade area of Oak Forest, Illinois. (Id., ¶ 15.) The FDIC asserts that
InBank increased its construction and land development loans from approximately $41 million in
June 2005 to approximately $61 million in June 2006, and eventually $65 million by March
2007. (Id., ¶ 16.)
The FDIC alleges that Defendants acted negligently (Count I) and grossly negligent
(Count II) by disregarding the Bank’s loan policies, prudent lending practices, and regulatory
warnings about deficiencies in InBank’s underwriting, administrative, and operational practices
in connection with 15 CRE and ADC loans (“the Subject Loans”) between November 30, 2005
and April 9, 2008 that totaled approximately $22 million and have caused losses to date of
approximately $6.8 million. (Id, ¶¶ 18-39; 139-149.) The FDIC also alleges that Defendant
Romero, as an Officer of the Bank and member of its Loan Committee, owed the Bank fiduciary
duties to act with the utmost care and in the best interests of the Bank and that he breached those
duties (Count III) by approving the Subject Loans, which he knew disregarded prudent lending
practices and violated the Bank’s loan policies. (Id., ¶¶ 150-153.)
“A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
complaint must include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
1 Defendants assert that Defendant Romero was Vice President, Loan Operations and not the Senior Lending
Officer. (Mem. at 14.)
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“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (citation
omitted). Under the federal notice pleading standards, a plaintiff’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Id. at 555. Put differently, a
“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed.
2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “In evaluating the sufficiency of the
complaint, [courts] view it in the light most favorable to the plaintiff, taking as true all well-
pleaded factual allegations and making all possible inferences from the allegations in the
plaintiff’s favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011).
Statute of Limitations
Defendants argue that the Complaint is untimely because the FDIC filed it nearly six
months after the expiration of the statute of limitations. (Mem. at 2.) The FDIC filed this action
as receiver for InBank pursuant to 12 U.S.C. § 1821(d)(2) of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989 (“FIRREA”). FIRREA contains a provision known as
the “Extender Statute” that provides a statute of limitations for actions brought by the FDIC as
receiver for a failed bank. 12 U.S.C. § 1821(d)(14). The Extender Statute states, in relevant
(A) In General. Notwithstanding any provision of any contract, the applicable
statute of limitations with regard to any action brought by the Corporation as
conservator or receiver shall be –
(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(ii) in the case of any tort claim . . . the longer of –
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(B) Determination of the date on which a claim accrues. For purposes of
subparagraph (A), the date on which the statute of limitations begins to run on any
claim described in such subparagraph shall be the later of –
(i) the date of the appointment of the Corporation as conservator or
(ii) the date on which the cause of action accrues.
12 U.S.C. § 1821(d)(14).
The appointment of the FDIC as Receiver of InBank on September 4, 2009 triggered the
Extender Statute’s three year limitations period (“the federal period”) under section (A)(ii)(I).
Pursuant to section (A)(ii)(II), the limitations period under Illinois law for negligence, gross
negligence, and breach of fiduciary duty is five years. 735 ILCS 5/13-205. Defendants assert
that the three-year federal period expired on September 5, 2012 and that the appointment of the
FDIC as Receiver of InBank extinguished the five-year Illinois period. (Mem. at 3.) Defendants
also contend that the Complaint fails to plead either tolling or timeliness under any alternative
theory or state statute of limitations. (Id.) Thus, Defendants argue, the March 7, 2013 filing of
the Complaint was untimely and the Court should dismiss the Complaint with prejudice. (Id. at
The FDIC responds that it timely filed its claims because the parties entered into a
tolling agreement (“the tolling agreement”) that tolled and suspended the limitations period, and
that it filed its Complaint within the limitations period pursuant to the tolling agreement. (R. 40,
Resp. at 2-9.) Alternatively, the FDIC contends that even in the absence of the tolling
agreement, it filed the Complaint within the alternative five-year state limitations period pursuant
to 12 U.S.C. § 1821(d)(14)(A)(ii)(II) 2. (Id. at 11-15.)
2 The FDIC also raises an equitable estoppel argument in response to Defendants’ statute of limitations defense. The
Court need not address this argument in light of its rulings on the FDIC’s other responses to the statute of limitations
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Defendants’ statute of limitations argument fails at this stage. Defendants argue that the
Complaint is untimely on its face “and fails to plead either tolling or timeliness under any
alternative theory or state statute of limitations.” (Mem. at 3.) The Seventh Circuit has held that
a statute of limitations defense is an affirmative defense and that complaints need not anticipate
or allege facts that tend to defeat affirmative defenses. U.S. Gypsum Co. v. Indiana Gas Co., Inc.
et al., 350 F.3d 623, 628 (7th Cir. 2003); see also Barry Aviation, Inc. v. Land O’ Lakes Mun.
Airport Comm’n., 377 F.3d 682, 688 (7th Cir. 2004) (finding that the resolution of the statute of
limitations comes after the complaint stage). The exception to this rule arises when the
“allegations of the complaint itself set forth everything necessary to satisfy the affirmative
defense.” Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009). In Brooks, the Seventh Circuit
found that it was appropriate to consider the statute of limitations at the motion to dismiss stage
because “the relevant dates [we]re set forth unambiguously in the Complaint” and because the
plaintiff’s substantive response to the statute of limitations defense did not apply to that case. Id.
That is not the case here because Defendants executed a tolling agreement with the FDIC prior to
the expiration of the three-year federal period. All relevant dates, therefore, are not set forth
unambiguously in the Complaint.
On August 24, 2012, eleven days before the three-year anniversary of the FDIC’s
appointment as receiver, the FDIC and Defendants entered into a tolling agreement, which stated
that “any and all statutes of limitations or other periods of limitation shall be tolled and shall not
run” for 180 days, and that this tolling period “shall not be pleaded, asserted, included in any
calculation of time elapsed, or relied upon in any legal argument or proceeding however styled
… for purposes of computing the running of any federal or state statute of limitations.” (Resp.,
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Ex. C, Tolling Agreement ¶ 2.) The tolling agreement expired on February 25, 2013, giving the
FDIC until March 8, 2013 (11 days after the end of the tolling period) to sue Defendants under
the three-year federal period. The FDIC filed this lawsuit on March 7, 2013.
Defendants contend that the Court should not consider the tolling agreement because the
FDIC failed to allege tolling in its Complaint, and because the Complaint does not make any
reference to, or allegation of, a tolling agreement. (R. 41, Reply at 1-2.) While the Court’s
“consideration of matters outside the pleadings is not generally permitted” See McIntyre v.
McCaslin, No. 11 C 50119, 2011 WL 6102047, at *4 (N.D. Ill. Dec. 7, 2011) (citing Levenstein
v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998)), the Court may take notice of the tolling
agreement for the purpose of determining that the allegations of the Complaint itself do not set
forth everything necessary to satisfy Defendants’ affirmative statute of limitations defense.3
Brooks, 578 F.3d at 579; see also G.M. Harston Constr. Co., Inc. v. City of Chicago, 2003 WL
22508172, at *3 (N.D. Ill.); U.S. Commodity Futures Trad. Co. v. Tunney & Assoc., No. 13 C
2919, 2013 WL 4565690, at *5 (N.D. Ill.).4
Illinois Limitations Period
Even if the Court considered the statute of limitations affirmative defense at this stage,
however, the argument would fail because the FDIC’s claims still fall within the five-year
Illinois limitations period.
3 Defendants’ reply brief provides further evidence that the Complaint does not set forth everything necessary to
satisfy Defendants’ statute of limitations defense. Defendants attach to their reply brief a number of documents that
reflect some, but not all of the parties’ communications regarding the Tolling Agreement. Defendants’ argument
that the FDIC fraudulently induced them into entering into a tolling agreement confirms that the Court cannot
resolve the statute of limitations defense at this stage.
4 Because the Court finds that the statute of limitations is an affirmative defense that the FDIC did not need to plead
around in its Complaint, the Court does not address Defendants’ primary statute of limitations argument based on
National Credit Union Admin. Bd. v. Credit Suisse Securities (USA) LLC, et al., 939 F. Supp. 2d 1113 (D. Kan.
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Subpart (A) of the Extender Statute provides two separate limitations periods for bringing
a tort claim in this case: (1) the three-year federal period; and (2) the five-year period applicable
under Illinois law. The statute specifically states that the relevant limitations period is “the
longer of” the two options. Subpart (B) of the Extender Statute also establishes two possible
dates on which the claim accrues: (1) the date of the appointment of the FDIC as conservator or
receiver; or (2) the date on which the cause of action accrued. The statute specifically states that
the accrual date “shall be the later of” these two dates.
Defendants argue that because the FDIC filed its Complaint on March 7, 2013, the five-
year Illinois limitations period applies only to loans made on or after March 7, 2008. (Reply at
11.) This interpretation would strike all but four of the Subject Loans. The plain language of the
Extender Statute, however, contradicts Defendants’ interpretation. See Central States, Se. and
Sw. Areas Pension Fund v. Robinson Cartage Co., 55 F.3d 1318, 1322 (7th Cir. 1995) (stating
that the court “must first look to the plain language of the statute when interpreting its meaning”)
(citations omitted). The Extender Statute states that “the date on which the statute of limitations
begins to run on any claim described in [subparagraph (A)] shall be the later of -” (1) the date of
the appointment of the FDIC as receiver; or (2) the date on which the cause of action accrues. 12
U.S.C. 1821(d)(14)(B) (emphasis added). With respect to the Subject Loans, the later date of
accrual is September 4, 2009 – the date of the appointment of the FDIC as receiver.5 The accrual
date determined by subpart (B) does not differentiate between the two limitations periods that
apply to tort claims in subpart (A). See FDIC v. McSweeney, 976 F.2d 532, 536 (9th Cir. 1992)
(finding that the state statute of limitations began to run anew when the FDIC was appointed);
RTC v. S & K Chevrolet, 868 F. Supp. 1047 1055 (C.D. Ill. 1994) (finding “the plain wording of
5 All of the Subject Loans addressed in the Complaint were made after Nov. 30, 2005, less than five years before the
Bank failed on September 4, 2009. Thus, none of the claims were time-barred at the date of receivership.
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the statute indicates that the accrual dates put forth in (B)(i) and (ii) apply to (A)(ii)(I) and (II)
equally”) (vacated, in part, on other grounds by 923 F. Supp. 135, (C.D. Ill. 1996)). With the
accrual date established, the limitations period is the longer five-year period proscribed by
Illinois law. 735 ILCS 5/13-205; see also FDIC v. Wabick, et al., 335 F.3d 620, 626 (7th Cir.
2003) (stating “under the statute before us Congress has directed for each type of claim we have
two possible sources for the limitations period . . . [w]e are to choose whichever period is
longer.”). Thus, the FDIC had until September 4, 2014 to file this Complaint. The FDIC’s
claims are timely.
Sufficiency of the Allegations
Defendants allege that the FDIC’s Complaint fails to state a claim upon which relief can
be granted. Specifically, Defendants assert that (1) the business judgment rule bars Counts I
(negligence) and III (breach of fiduciary duty); (2) the allegations in Count II (gross negligence)
do not support an inference of gross negligence; and (3) Count III is duplicative of Count I and
thus the Court should dismiss it. The Court addresses each argument in turn.
The FDIC’s negligence, gross negligence, and breach of fiduciary duty claims contain
similar elements. FDIC v. Giannoulias, 918 F. Supp. 2d 768, 772 (N.D. Ill. 2013). In order to
state valid claims, the FDIC must allege duty, breach, proximate cause, and damages. Lewis v.
CITGO Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009) (negligence); FDIC v. Gravee, 966
F. Supp. 622, 636 (N.D. Ill. 1997) (gross negligence); DeGeer v. Gillis, 707 F. Supp. 2d 784, 795
(N.D. Ill. 2010) (breach of fiduciary duty). The standard of care for “Defendants in this case ‘is
that which ordinarily prudent and diligent persons would exercise under similar circumstances.’”
F.D.I.C. v. Spangler, 836 F. Supp. 2d 778, 792 (N.D. Ill. 2011) (citing FDIC v. Bierman, 2 F.3d
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1424, 1427 (7th Cir. 1993)). “This standard requires that the court review all of the
circumstances of the particular case.” Id.
Business Judgment Rule
Defendants assert that the Illinois business judgment rule protects them from liability on
Counts I and III. (Mem. at 4-13.) “The business judgment rule is a presumption that in making a
business decision, the directors of a corporation acted on an informed basis, in good faith and in
the honest belief that the action taken was in the best interest of the company.” In re Abbott
Labs. Derivative Shareholders Litig., 325 F.3d 795, 808 (7th Cir. 2003); see also Bd. of Dirs. of
Greenbrier Condo. Ass’n v. Greenbrier Develop. Assocs., LLC, No. 1-12-1383, 2013 WL
3820927 (Ill. App. Ct. July 19, 2013.) Courts in this District disagree on whether a defendant
may assert the business judgment rule as a defense at the motion to dismiss stage. Compare
F.D.I.C. v. Saphir, No. 10 C 7009, 2011 WL 3876918, *5-9 (N.D. Ill. Sept. 1, 2011) (considering
the business judgment rule an affirmative defense) with Spangler, 836 F. Supp. 2d at 792
(finding the business judgment rule is not an affirmative defense). This distinction is significant
because, as discussed above, the FDIC need not plead facts in the Complaint to anticipate and
defeat affirmative defenses. See Brooks, 578 F.3d at 579.
The Court need not resolve this disagreement, however, because, even if the business
judgment rule is not an affirmative defense, the FDIC’s claims would survive its invocation at
this stage. It is a “prerequisite to the application of the business judgment rule that the directors
exercise due care in carrying out their corporate duties. If directors fail to exercise due care, then
they may not use the business judgment rule as a shield to their conduct.” Davis v. Dyson, 387
Ill. App. 3d 676, 694 (Ill. App. Ct. 2008). Here, the FDIC has sufficiently alleged that
Defendants failed to exercise due care to defeat the application of the business judgment rule.
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The Complaint alleges that Defendants departed from their duty of care in approving
and/or increasing the Subject Loans. Specifically, the Complaint alleges that when they
approved the Subject Loans, Defendants were aware of, but ignored, regulatory warnings about
significant deficiencies in InBank’s underwriting procedures and administrative practices
improper and understated loan-to-value (“LTV”) ratios;
inadequate financial documentation for borrowers and/or guarantors;
insufficient cash flow analyses;
inadequate documentation of repayment capacity;
reliance on inadequate appraisals;
failures to adequately assess and monitor risk;
failures to adjust credit grades;
failures to avoid or reduce excessive concentrations of CRE and ADC loans;
failures to avoid or reduce excessive levels of classified assets; and
inadequate provisioning for loan and lease losses.
(See, e.g., Compl. ¶¶ 23-30, 40.) The Complaint also alleges that Defendants failed to adhere to
InBank’s loan policy by ignoring policy limits on LTV ratios, ignoring policy limits on loan
concentrations, failing to require defined repayment plans, and failing to require financial
information sufficient to establish the borrower’s repayment capacity. (Id., ¶¶ 19, 36, 40.) These
allegations are similar to those in Spangler and Giannoulias, where the courts refused to apply
the business judgment rule at the motion to dismiss stage. See Spangler, 836 F. Supp. 2d at 792;
F.D.I.C. v. Giannoulias, 918 F. Supp. 2d 768 (N.D. Ill. 2013).
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Defendants argue that “[t]he FDIC’s own allegations show that Defendants did have
policies, processes, and procedures for loan evaluations” (Mem. at 7), and that Defendants
followed these processes to make informed lending decisions. (Reply at 11.) Defendants further
argue that the FDIC is merely second-guessing the quality of those lending decisions. This
argument, however, fails to address the FDIC’s specific allegations that Defendants ignored
those policies and procedures and ignored specific regulatory warnings. In citing to certain
information and materials they considered and requirements and conditions they established,
Defendants essentially ask this Court to weigh the evidence and find that they simply exercised
their business judgment. The Court, however, cannot weigh evidence at this stage of the case.
Giannoulias, 918 F. Supp. 2d at 773 (citing Saphir, 2011 WL 3876918, *4 and Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010)). Indeed, the Court must view the allegations
in the light most favorable to the FDIC. The Court, therefore, denies Defendants’ motion to
dismiss to the extent that it seeks dismissal based on the Illinois business judgment rule.6
Defendants argue that the Court should dismiss Count II because the allegations in the
Complaint do not support a plausible inference that Defendants were grossly negligent. In
Illinois, gross negligence means “very great negligence but something less than willful, wanton
and reckless conduct.” Spangler, 836 F. Supp. 2d at 785 (citing Gravee, 966 F. Supp. at 636).
“No allegations of lack of good faith or an intent to injure are required to sustain a claim of gross
negligence under Illinois law.” Id. (citations omitted).
6 In their reply brief, Defendants identify a limited number of allegations in the Complaint that they contend blame
Defendants for the acts of unnamed bank employees. (Reply at 16-17.) Defendants assert that the Illinois Banking
Act protects them when they base their decisions on information provided by Bank officers. Defendants fail to cite
any case law or further evidence in support of their argument. Even if the Defendants had presented a more
developed argument, however, their reliance on the Illinois Banking Act constitutes an affirmative defense, which
the FDIC need not attack in its Complaint. F.D.I.C. v. Pantazelos, et al., No. 13 C 2246, 2013 WL 4734010, at *4
(N.D. Ill. 2013); Saphir, 2011 WL 3876918 at *5.
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Defendants assert that the Complaint fails to properly allege gross negligence because it
does not contain allegations that Defendants “knew or were very greatly negligent in not
knowing that the information in the loan write-up was incorrect, that Defendants knew at the
time that the loan recommendations were wrong, that they knew the conditions they set on the
approvals for the Loans were inadequate, or that they knew their instructions would not be
followed.” (Mem. at 13.) Defendants also attack the Complaint for lacking any “facts indicating
any Defendant knew at the time decisions were made that any specific Loan was unsafe or
unsound.” Id. at 14.
Defendants’ argument contains two flaws. First the Complaint does allege that when
Defendants approved the Subject Loans they knew the loans were unsafe and unsound. As
described above, the Complaint alleges that Defendants were aware of specific deficiencies in
the bank’s underwriting procedures and administrative practices and approved the Subject Loans
in violation of InBank policy. (Compl., ¶¶ 23-30; 40.) Second, Defendants apply the wrong
legal standard. Knowledge is not a prerequisite to gross negligence. Gravee, 966 F. Supp. at
640 (“a reasonable jury could find for FDIC if it concludes that [the defendants’] loan
underwriting and monitoring practices were seriously deficient and that defendants repeatedly
disregarded [the regulator’s] warnings about those deficiencies”). The Court, therefore, denies
Defendants’ motion to dismiss Count II.
Defendants argue that Count III (breach of fiduciary duty) is duplicative of Count I
(negligence). Although the conduct at issue in these counts is the same, the FDIC has properly
pled Count III as an alternative to Count I. Rule 8(d)(2) permits such alternate pleading. Fed. R.
Civ. P. 8(d)(2); see also Giannoulias, 918 F. Supp. 2d at 775 (refusing to dismiss negligence and
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breach of fiduciary duty claims as duplicative because the plaintiff pled them in the alternative).
The FDIC, therefore, may proceed with these claims in the alternative.
For the foregoing reasons, the Court denies Defendants’ motion to dismiss.
DATED: November 22, 2013
AMY J. ST. EVE
U.S. District Court Judge