USCA1 Opinion

November 15, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1555
JERRY BARROWS,
Plaintiff, Appellant,
v.
RESOLUTION TRUST CORPORATION, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

Jerry Barrows on brief pro se.

_____________
McLane, Graf, Raulerson & Middleton, Professional Associati
_______________________________________________________________
Ralph F. Holmes and Suzanne M. Gorman on brief for appellee.
_______________
_________________
____________________
____________________

Per Curiam.
___________
liability
Barrows

This appeal

lawsuit
against

Hampshire

brought
First

state court.

bank failed and the

court

granted

fourteen counts

Northern
Before

origin in

a lender

plaintiff-appellant
Cooperative
the case came

Bank

Jerry
in

New

to trial, the

Resolution Trust Corporation ("RTC") was

appointed as receiver.
district court and

by

has its

The RTC removed the suit

moved for summary judgment.

summary

judgment

on

thirteen

of the first amended complaint.

to federal
The district
out

of

the

Following a

trial

on

the

merits,

appellant on the

judgment

was entered

sole remaining count.

se from various interlocutory

__

in

Barrows

favor

of

appeals pro
___

rulings of the district court,

including the grant of partial summary judgment.

We affirm.

I.
The history

of this case

is quite complicated,

and we

recount only those facts necessary to an understanding of our

decision.
complaint

On October 17, 1988, Barrows filed an eight count

against

First Northern

Hampshire state court alleging

warranty, tortious interference
and slander.

While

Cooperative

Bank in

New

breach of contract, breach of

with contractual

the lawsuit was pending in

relations,
state court,

Barrows entered

into bankruptcy and a

for his estate.

Although the trustee expressed his intent to

pursue

trustee was appointed

the action, no formal substitution

of the trustee as

plaintiff

took place at that time, and the case continued to

be prosecuted by Barrows.
Following

substitution

of

the

RTC for

the

bank

defendant and removal of the case to federal district

the

RTC

moved

exhaustion

for

of

of administrative

leave to amend
Magistrate
Barrows

a stay

leave

complaint.

until
On

July

8,

8,

to

1991, Barrows

file

an

amended

filed

an

amended

his previous allegations

and breach

of warranty

but added several

claims for

negligence, breach of covenant of

dealing, negligent misrepresentation,

of slander

counts, including
good faith and
and violation of

the Racketeer Influenced and Corrupt Organizations laws.

amended

complaint

also

added

for

and granted

complaint which omitted

fair

pending

dated June 7, 1991,

180-day stay
1991

court,

Barrows moved

By order

imposed a
July

proceedings

remedies.

his complaint.

Judge Barry

court

as

individual

The

defendants.

Following the expiration of the 180-day period, the RTC filed

an amended answer on December 27, 1991.
On February
that

19, 1992,

the bankruptcy

Over the next

Magistrate Judge Arenas

trustee

be

substituted as

several months, the action

respect to most of

ordered

plaintiff.

was dismissed with

the individual defendants.

On

August 6,

1992, Magistrate Judge Arenas ordered plaintiff to show cause

within
action

fifteen days
be

dismissed

why

he should

with

respect

-3-

not recommend
to

certain

that the
remaining

individual defendants.

Sometime thereafter, the

trustee abandoned the action to Barrows.

nor Barrows ever
by

addressing

remaining

Neither the trustee

responded directly to the

why

the

individual

action

show cause order

should

defendants.

On

bankruptcy

continue
October

against
6,

1992,

however, Barrows filed a second amended complaint.

On

April 23, 1993, the

judgment based on the

1993,

the

district

determine, inter
_____
the

court.

was

the operative

complaint
consent

motion for summary

first amended complaint.

court

held

status

alia, which complaint

____

On

June 11,

conference

to

was presently before

The court found that the first amended complaint

complaint,

"was filed
of

RTC filed a

and that

without court

the parties"

and,

the second

amended

permission and

without

accordingly,

On August

legal

effect pursuant to

Fed. R. Civ.

1993, the district

court granted summary judgment to the RTC

on 13

P. 15(a)."

had "no

19,

out of the 14 counts in the first amended complaint on

the grounds

that Barrows' claims failed to satisfy 12 U.S.C.

1823(e) and the common law D'Oench doctrine.

On August 26,

_______
1993,

Barrows filed a motion to "alter or amend" the court's

summary

judgment

September

15,

settlement
Bank

order.

This

1993, Barrows

agreement that he

had allegedly

entered

motion

filed

was

a motion

denied.
to

On

enforce a

and First Northern Cooperative

into in

January 1991,

before the RTC was appointed as receiver.

shortly

The district court

-4-

denied this motion as

untimely.

Final judgment

on February 24, 1994.

This appeal followed.

was entered

II.
We begin
errors.
was

by addressing

Contrary

no error

in

Pursuant to 12

to the position taken

substituting the

U.S.C.

succeeded to "all rights,

the failed bank.
court

discretion

some of the

alleged procedural
by appellant, there

RTC as

party-defendant.

1441a(b)(4) and 1821(d)(2), the RTC

titles, powers, and privileges" of

Fed. R. Civ. P.
to substitute

25(c) gives the district

a party

"[i]n case

of any

transfer of interest."
as

receiver is

failed
F.2d

bank.

There are many cases in which the RTC

substituted, as

1144, 1147

1993)

(11th Cir.

1993) (substitution

Security Sav. & Loan Ass'n,

___________________________

why the RTC's

for a

Appellant
motion for

of RTC

v. RTC, 987 F.2d 663,

___

(substitution of

1991) (same).

of course,

See, e.g., RTC v. Hallmark Builders, Inc., 996

___ ____ ___
_______________________

plaintiff); Pierce & Assoc.

_______________
Cir.

a matter

RTC

as

as

664 (10th

defendant); Payne
_____

v.

924 F.2d 109,

110-11 (7th Cir.

has advanced no

plausible ground

substitution in

the instant

case

should have been denied or why a hearing was necessary.

We also
court

argument that

the district

erred in proceeding with the case after the RTC failed

to make
180 days.
of only

reject appellant's

a determination
The stay order,
180 days.

of his administrative

claim within

by its very terms, granted a stay

Upon the

expiration of this

-5-

period, on

December 4, 1991, the district

with the case.
Cir.

Cf. Marquis v. FDIC, 965 F.2d 1148, 1155 (1st

___ _______
____

1992) (contemplating

receiver, the district

cases

"hold

court appropriately continued

pending

that once

the FDIC

court would in
litigation

in

steps in

as

the vast majority

of

abeyance

until

the

administrative review process has run its course, or 180 days

has passed, whichever first occurs").
We

are also persuaded,

district court's
did not err in
the operative

order dated June

on his

because

it

bankruptcy

reasons stated

11, 1993, that

finding that the first amended

complaint.

appellant argues that the

filed

for the

For

the

complaint was

first time

be the

after the

on

appeal,

operative complaint

action

trustee for the benefit of

the trustee abandoned

the court

first amended complaint, which was

behalf, could not

was filed

in the

the action.

had vested

in the

the estate but before

This argument is

waived

since it was not raised below.

See United States v. Palmer,

___ _____________
______

956 F.2d 3, 6 (1st Cir. 1992).

Moreover, we note that at the

time the first amended

complaint was filed, the

not yet been substituted as plaintiff.

trustee had

Under Fed. R. Civ. P.

25(c), it was proper, in the absence of such substitution, to

continue

the

action

by

Barrows.

See
___

United States v.
______________

Transocean Air Lines, Inc., 356 F.2d 702, 704 (5th Cir. 1966)
__________________________
(adjudication in
substitute

bankruptcy of

bankruptcy trustee

carrier did not,

as party to

of itself,

action); Liberty
_______

-6-

Broadcasting Sys., Inc.

________________________
(W.D.N.Y.

1953)

v.

(where no

bankruptcy trustee

Albertson, 15
_________
motion

as plaintiff,

was

F.R.D. 121,

made to

122

substitute

it was proper

to continue

the action as originally instituted).

III.
We now
court

erred

turn to

appellant's argument that

in failing

to

enforce

agreement that appellant and First

entered into

in January

appointed as receiver.
to provide

him

with

dropping the lawsuit.

the district

an alleged

settlement

Northern Cooperative Bank

1991, shortly

before

the RTC

was

According to Barrows, the bank agreed

various

loans

in

exchange

for

his

Following its appointment as receiver,

however, the RTC allegedly refused to honor the agreement.

As an initial
that the

motion to

filed on September

matter, we agree with

the district court

enforce settlement agreement,

15, 1993, was untimely.

which was

In so ruling, we

do

not

rely, as

timely

filing

did the

district court,

requirement

of

Appellant's motion to enforce

Fed.

because this

See,
___

e.g.,
____

Inc.,
____

936

rule

Civ.

59(e).

P.

applies only

1472 (4th

properly

amend judgment under Rule

Fayetteville Investors
______________________
F.2d 1462,

on the

settlement could not

be treated as a motion to alter or

59(e)

R.

in part,

v.
Cir.

to final

judgments.

Commercial Builders,
____________________
1991).

The partial

summary judgment which appellant sought to set aside

a final judgment.

See Fed.
___

R. Civ.

P. 54.

was not

In our

view,

-7-

appellant's motion to enforce was untimely not because it was

filed more than ten days after the entry of summary judgment,
but rather
after

because it was

the date of the

was over

filed over

two and a

alleged agreement and

with respect to

all but appellant's

half years

after the case

one remaining

claim which survived summary judgment.

Moreover,

the

district

court

was

precluded

from

enforcing

the agreement by

12 U.S.C.

1821(j),

the anti-

injunction provision of the Financial Institutions Reform and

Recovery Act.

Section 1821(j) provides that:

Except as provided in this section, no

court may take any action, except at the
request of the Board of Directors by
regulation or order, to
restrain or
affect
the
exercise
of powers
or
functions of the [RTC] as a conservator
or a receiver.
12 U.S.C.

1821(j).

loan, the RTC was

In refusing to provide appellant with a

acting pursuant to its statutory

power to

"preserve and conserve the assets and property" of the failed

institution.

See
___

12

U.S.C.

1821(d)(2)(B).

Under

the

circumstances, the district court was without jurisdiction to

enforce
50,

the alleged agreement.

52 (2d

court of
mortgages

Cir.

1994) (section

Cf. Volges v.
___ ______

1821(j) deprived

jurisdiction to enjoin the RTC

owned by failed

RTC, 32 F.3d
___
district

from auctioning off

depository institution); Lloyd v.

_____

FDIC, 22 F.3d 335, 336 (1st Cir. 1994) (holding that district
____

-8-

court lacked jurisdiction to

enjoin FDIC from foreclosing on

mortgaged property).

IV.
We next

address appellant's argument that

the district

court erred in granting partial summary judgment for the RTC.

"Summary judgment is appropriate
the light most favorable
genuine issue as to
is

entitled to

where the record, viewed in

to the nonmoving party, reveals

any material fact, and the

judgment as

a matter

no

moving party

of law."

Commercial
__________

Union Ins. Co. v. Walbrook Ins. Co., 7 F.3d 1047, 1050 (1st
_______________
__________________
Cir. 1993).
that

The moving

party bears the

there is no genuine,

Harnischfeger Corp., 12
____________________

material factual issue.

F.3d

1154, 1157

cert. denied, 115 S. Ct. 56 (1994).

____________
party

has

made

judgment, the

burden of

motion

"must set forth

showing there is a genuine issue for trial."

56(e); Anderson
________
(1986).

v. Liberty Lobby, Inc., 477

____________________

We review

a grant

of

Snow v.
____
1993),

However, once the moving

properly supported

adverse party

(1st Cir.

showing

for

summary

specific facts
Fed. R. Civ. P.
U.S. 242,

summary judgment

250

de novo.

__ ____
Snow, 12 F.3d at 1157.
____
Appellant argues

that

refrained from ruling on

the district

court should

have

the summary judgment motion because

the RTC had yet to make a determination on his administrative

-9-

claim.

He also argues that a ruling on

motion

was

agreement

improper

since

with the bank.

he

had

the summary judgment

reached

settlement

We pass the question whether these

arguments were properly preserved and reject them in light of

our

previous

discussion.

The

proceeded with

the case once

the 180-day stay

the

without jurisdiction

court was

district

court

to enforce

properly

expired, and
the alleged

settlement agreement.
Appellant's sole challenge to the merits of the district
court's summary judgment ruling is with respect to Counts I III of the first amended complaint.
alleged that the bank had

In these counts, Barrows

agreed to issue an "unconditional"

letter of credit, and that it breached this agreement

1),

was negligent

(Count 2),

and intentionally

(Count

interfered

with his contractual relationship with a seller (Count 3), by

issuing

a standby

letter

of credit.

In its

summary judgment, the RTC argued that these

satisfy 12 U.S.C.

motion

for

claims failed to

1823(e) and the D'Oench doctrine.1

_______

The

____________________
1. The district court's
thorough discussion of

summary judgment order contains a

the
D'Oench doctrine, and
its
_______
statutory counterpart, 12 U.S.C.
1823(e).
The D'Oench
_______
doctrine has its origins in D'Oench, Duhme & Co. v. FDIC, 315
____________________
____
U.S. 447 (1942).
The evolved doctrine bars defenses and
affirmative claims against the RTC, following its appointment
as conservator or receiver to a failed institution, as long
as those claims arise out of an unrecorded agreement. See
___
McCullough v. FDIC, 987 F.2d 870, 874 (1st Cir. 1993)
__________
____
(observing that D'Oench doctrine bars affirmative claims
_______
whether cloaked in terms of contract or tort, as long as
those claims arise out of an alleged "secret" agreement).
Section 1823(e) bars claims or defenses asserted against the
-10-

district

court

appellant

agreed,

had "failed

exist[ed] concerning
was

approved

committee."

by

and

found,

to show

the

Bank's

Appellant argues that

bank

liability,

board

that

material fact

of credit

of

contract

directors

or loan

1823(e)(3).
1823(e) does not bar

because the alleged

not an

particular,

dispute of

whether the letter

See 12 U.S.C.
___

in Counts I-III

in

asset.

his claims

agreement related to

See
___

Agri Export Coop. v.

__________________

Universal Sav. Assoc'n, 767 F. Supp. 824, 833 (S.D.Tex. 1991)

______________________
(observing that a letter
not an asset).

of credit is a bank

This argument was not properly

the district court, and, hence, is waived.

we

were to

below.
than

The

reach the

issue, we

D'Oench doctrine is in
_______

obligation and
preserved in

Moreover, even if

would affirm

the judgment

certain respects broader

1823(e) and is not constrained by any requirement that

____________________
RTC based on any agreement "which tends to diminish or defeat
the interest of the [RTC] in any asset acquired by it" from a
failed institution unless such agreement:
(1) is in writing,
(2) was executed by the depository institution and
any person claiming an adverse interest thereunder,
including the obligor, contemporaneously with the
acquisition
of the
asset by
the depository
institution,
(3) was approved by the board of directors of the
depository institution or its loan committee, which
approval shall be reflected in the minutes of said
board or committee, and
(4) has been, continuously, from the time of its
execution, an official record of the depository

institution.
12 U.S.C.

1823(e).
-11-

the agreement relate to

a specific asset. See Hall

___ ____

920 F.2d 334,

Cir. 1990), cert. denied, 501

_____________

339 (6th

1231 (1991); Winterbrook Realty, Inc. v. FDIC,

_________________________
____
27, 30-31 (D.N.H. 1993).
alleged

agreement to

credit was

independently of
out

of

Texas Nat'l Bank, 1994

_________________
1994)

an

820 F. Supp.

"unconditional"

bank records, the

See
___

letter

claims arising

Nutro Prods. Corp.

___________________

WL 530166, at *4

of

D'Oench doctrine,
_______

1823(e), bars appellant's

this agreement.2

U.S.

Since there is no evidence that the

issue

recorded in

v. FDIC,
____

v. NCNB
____

(5th Cir. Oct. 17,

(holding that D'Oench doctrine precluded consideration

_______

of unrecorded

agreement to extend expiration

date in letter

of credit); Timberland Design, Inc. v. First Serv. Bank For

________________________
_____________________

Sav.,
____

932

doctrine

F.2d 46
barred

(1st

claim

Cir. 1991)
based

on

(holding

unrecorded

that D'Oench
_______
agreement

to

provide a future loan).

V.
We

have

carefully

considered

appellant's

remaining

arguments and are persuaded that they are without merit.

Affirmed.
________

____________________
2. Appellant, in an apparent attempt to prove that the
alleged agreement was recorded, includes copies of bank
records in his reply brief.
Since these records were not
filed as exhibits in the district court, they are not part of
the record on appeal and cannot inform our decision.
See
___
Fed. R. App. P. 10(a). We note, however, that these records
tend to show that the bank agreed to issue a standby letter
of credit and not the "unconditional" letter of credit
appellant claims he was promised.
-12-