Citations
- 8 F. Supp. 2d 1275
Full opinion text
ORDER
HOLMES, District Judge.
Before the Court for consideration is the Report and Recommendation (“Report”) of the United States Magistrate Judge Sam A. Joyner (July 21, 1997, Docket # 324), recommending that the motion to dismiss, or alternatively, for summary judgment filed by Defendants Louis W. Grant, Jr. and Charles B. Grant (Docket # 75), and the motions for summary judgment filed by Defendants Keith R. Gollust and Paul E. Teirney (Docket #76); Lawrence Mills, Jr., Edward L. Jacoby, and W.R. Hagstrom (Docket # 78); and Rod L. Reppe (Docket # 80) be denied. Defendants filed objections to the Report and Plaintiff responded to Defendants’ objections. Defendants also filed a reply to Plaintiffs response.
When a party objects to the report and recommendation of a Magistrate Judge, Rule 72(b) of the Federal Rules of Civil Procedure provides in pertinent part that:
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge’s disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommendation decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b).
The Court has reviewed Defendants’ objections to the Report de novo and, based upon the reasoning and authority contained in the Report, the Court concludes that Defendants’ objections are without merit. The Court agrees with Judge Joyner’s conclusion that the Northtown Investors loans are properly in this lawsuit and that Oklahoma law provides a two year statute of limitations for negligence and contract actions, and a three year statute of limitations on actions alleging a breach of fiduciary duty. Further, the Court agrees that the statute of limitations begins to run once it becomes certain and not speculative that Sooner Federal would suffer damages as a result of Defendants’ acts of negligence or breach. Finally, the Court agrees that genuine questions of material fact remain for jury determination as to “what breaches of duty caused harm to Sooner Federal for a particular loan, when those breaches occurred, and when the harm caused by those breaches was certain to occur.” Report at 33.
As described above, based upon a careful review of the Report and Recommendation of the Magistrate Judge, Defendants’ objections, Plaintiffs response, and Defendants’ reply, the Court finds that the Report and Recommendation (Docket #324) should be adopted in its entirety. Thus, Defendants’ motions for summary judgment (Docket # 75, 76, 78, 80) are hereby denied.
IT IS SO ORDERED.
JOYNER, United States Magistrate Judge.
REPORT AND RECOMMENDATION
The following motions have been referred to the undersigned for report and recommendation:
1. “Motion to Dismiss or, In the Alternative, Motion for Summary Judgment ... of Defendants Louis W. Grant, Jr. and Charles B. Grant” [Doc. No. 75];
2. “Motion for Summary Judgment of Defendants, Gollust and Tierney” [Doc. No. 76];
3. “Motion for Summary Judgment of Defendants J. Lawrence Mills, Jr., Edward Jacoby and W.R. Hag-strom” [Doc. No. 78]; and
4.“Motion for Summary Judgment of Defendant Rod L. Reppe” [Doc. No. 80].
Messrs. Gollust, Grant, Hagstrom, Jacoby, Mills, Reppe and Tierney (hereinafter referred to as the Defendants) argue that Plaintiffs claims against them must be dismissed because (1) the applicable statute of limitations bars Plaintiffs claims, (2) Plaintiff is estopped from asserting its current accrual argument in connection with the applicable statute of limitations, and/or (3) various loans identified by Plaintiff for the first time in its November 11, 1993 court-ordered Disclosure Report cannot be asserted in this ease. For the reasons discussed below, the undersigned recommends that Defendants’ motions be DENIED.
I. INTRODUCTION
Defendants were inside officers and/or directors of Sooner Federal Savings and Loan Association (“Sooner Federal”), a federally chartered, federally insured depository institution. Defendants have previously been referred to in this litigation as the nongroup I/inside directors. Plaintiff seeks to hold Defendants liable for loans approved, made' and/or supervised by Defendants. Plaintiff alleges that by making, approving and/or supervising the loans, Defendants (1) were negligent, (2) breached their contract with Sooner Federal to serve as prudent officers and directors, and/or (3) breached their fiduciary duty to Sooner Federal. See Second Amended Complaint, Counts I, II and III, Doc. No. 35. Defendants argue that under all of the theories of liability asserted by Plaintiff, a claim based on a bank officer’s or director’s making, approving and/or supervising a loan accrues when the bank disburses the loan proceeds (i.e., when the loan is made). Under Defendants’ accrual theory, most, if not all, of Plaintiffs claims would be barred by the applicable statute of limitations.
A. FIRREA’s Application
By late 1989, Sooner Federal was in trouble and on November 16, 1989, the Department of the Treasury’s Office of Thrift Supervision (“OTS”) appointed the Federal Deposit Insurance Corporation (“FDIC”) as conservator for Sooner Federal pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIR-REA”), 12 U.S.C. §§ 1441a(b), 1464(d)(2) and 1821(c)(6). See Exhibit D, Doe. No. 315. Pursuant to 12 U.S.C. § 1821(d)(2)(A)®, the FDIC steps into the shoes of a failed, federally insured depository institution and thereby obtains those rights of the institution which existed prior to the conservatorship. O’Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994).
Ordinarily, the statute of limitations applicable to an action for money damages brought by the United States or one of its agencies is 28 U.S.C. § 2415. With FIR-REA, Congress sought to strengthen the enforcement powers of Federal regulators of depository institutions. Consequently, FIR-REA provides the FDIC with a special statute of limitations in its role as conservator of a failed depository institution. This special statute expands the limitations periods in § 2415. See 12 U.S.C. § 1821(d)(14). The applicable portion of FIRREA’s special statute of limitations provides as follows:
(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the [FDIC/RTC] as conservator or receiver shall be—
(i) in the case of any contract claim, the longer of—
(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim ..., the longer of—
(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(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 [FDIC/RTC] as conservator or receiver; or
(ii) the date on which the cause of action accrues.
The shortest limitations period in § 1821(d)(14) is three years from the date the FDIC/RTC is appointed as conservator. Plaintiff became Sooner Federal’s conservator on November 16, 1989 and this lawsuit was filed less than three years later on November 13,- 1992. Thus, all of Plaintiffs claims are timely under FIRREA’s extended statute of limitations.
Plaintiff must, however, pass one more hurdle for its claims to be considered timely. Plaintiff obtains the benefit of FIR-REA’s extended statute of limitations only if Plaintiffs claims were timely under state law on the date Plaintiff was appointed as conservator. In other words, Plaintiff has the benefit of § 1821(d)(14)’s longer statute of’ limitations only if its claims against Defendants were timely under Oklahoma law on November 16, 1989, the date Plaintiff was appointed as Sooner Federal’s conservator. The parties agree that this is the law. Because they each have different views as to when Plaintiffs claims “accrue” under Oklahoma law, the parties disagree on the issue of whether Plaintiffs claims would have been timely under Oklahoma law on November 16, 1989. Thus, Defendants’ motions present the following central issue: What statute of limitations does Oklahoma apply to Plaintiffs negligence, breach of contract and breach of fiduciary duty claims and when do those claims “accrue” for purposes of the applicable Oklahoma statute of limitations?
B. Effect Of The United Supreme Court’s Holdings In Atherton And O’melveny
During the course of this litigation, the United States Supreme Court has decided two cases which dramatically impact eases brought by the FDIC. See O’Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994); and Atherton v. FDIC, 519 U.S. 213, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997). Both of these cases reinforce the holding in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) that there is no general federal common law. Ordinarily, the States have the authority to regulate activity within their borders. Federal common law rules are acceptable only when there is a “significant conflict between some federal policy or interest and the use of state law.” O’Melveny, 114 S.Ct. at 2055. Both Atherton and O’Melveny establish, however, that the remote possibility that a federal corporation, such as a savings and loan, might wind up in a federal receivership or conservatorship does not provide a basis for creating special federal common law rules. In O’Melveny, the Court made it clear that the FDIC steps into the shoes of an insolvent savings and loan to work out the savings and loans’ claims under state law, “except where some provision in the extensive framework of FIR-REA provides otherwise.” O’Melveny, 114 S.Ct. at 2054. Thus, the FDIC’s claims in this case are governed by Oklahoma law, not by general federal common law, unless Oklahoma law conflicts with FIRREA or some other federal statutory provision.
C. Plaintiff’s Abandonment Of Loan Claims
In its Second Amended Complaint, Plaintiff identifies 35 loans which it alleges were improperly approved, made and/or supervised by Defendants. See Doe. No. 35, ¶ 38. Throughout the course of litigation, however, Plaintiff has abandoned several of these loan claims. See Doc. Nos: 269 and 315. The following table identifies (1) the remaining loan claims being asserted by Plaintiff, (2) the Defendant against whom each loan claim is being asserted, and (3) the date each loan was made.
Loan Date of Loan Grant, C. Grant,L. Jacoby Mills Hagstrom Gollust Tierney Reppe
Tandem— Cushing 06-28-82 10-27-83 12-28-84 X X X X X
Northtown Investors I 08-24-82 X X X X X
FHSC — Intrapark 07-10-84 X X X X X
Mager/OPI— Rolling Hills I 09-13-84 X X X X X
Tandem — Reppe 12-04-84 X X X X X
Tandem— Cherry Street 06-10-85 X X X X X X
Northtown Investors II 10-31-86 X X X X
Three Years Betore FDIC’s Appointment as Conservator (11/16/86)
FHSC— Hunter’s Hills 05-13-87 XXX X
Mager/OPI— Rolling Hills II 11-05-87 X X X
Two Years Before FDIC’s Appointment as Conservator (11/16/87)
FDIC Appointed as Conservator (11/16/89)
D. History Of Defendants’ Motions
This case was filed and assigned to Judge Thomas R. Brett in November 1992. Defendants’ statute of limitations motions were filed in January 1994. Shortly after Defendants’ motions were filed, this case was transferred to Judge Lee R. West in the Western District of Oklahoma, due to the recusal of all judges in this district. See 1/25/94 Minute Order by Judge Brett. In August 1994, after Judge Terry C. Kern’s recent appointment to the Northern District of Oklahoma, the case was transferred back to the Northern District and assigned to Judge Kern. [Doc. No. 222].
1. Original Briefs: The Adverse Domination Doctrine
In their original statute of limitations briefs, the parties focused primarily on the doctrine of adverse domination. Under the adverse domination doctrine, the statute of limitations on a corporation’s claim against its officers and/or directors is equitably tolled while the corporation’s board of directors is controlled by culpable directors. The underlying premise of the adverse domination doctrine is that a corporation acts through its board of directors and a board of directors controlled by culpable directors will not cause the corporation to bring a lawsuit against themselves. See RTC v. Thomas, 837 F.Supp. 354, 358 (D.Kan.1993). The parties focused on the adverse domination doctrine because at the time they filed their original briefs, the “principal controlling precedent” was the Tenth Circuits pre-FIRREA decision in Farmers & Merchants Nat’l Bank v. Bryan, 902 F.2d 1520 (10th Cir.1990).
In Bryan,. the FDIC sued former officers and directors of a national bank for making imprudent loans. The officers and directors argued that the statute of limitations had run on several of the loan claims being asserted by the FDIC. The FDIC argued that its loan claims were not barred by the applicable statute of limitations because defendants had adversely dominated the bank’s board of directors and such domination acted to equitably toll the statute of limitations for as long as defendants controlled the bank’s board of directors. To resolve the issues on appeal, the Tenth Circuit began by holding that the determination of when the FDIC’s claims accrued for purposes of the applicable statute of limitations and whether the applicable statute of limitations was equitably tolled were questions to be answered by looking to federal common law, not state law. Bryan, 902 F.2d at 1522.
Applying federal common law, the Court in Bryan held that “a cause of action on an improper loan accrues at the time the loan is made.” Bryan, 902 F.2d at 1522 (citing Corsicana Nat’l Bank of Corsicana v. Johnson, 251 U.S. 68, 86, 40 S.Ct. 82, 64 L.Ed. 141 (1919)). The Court also held that federal common law recognized the doctrine of adverse domination as an , equitable doctrine which could be used by the FDIC to toll the statute of limitations. Id. From the chart in section 1(C), supra, it is clear that if, as Bryan held, Plaintiffs loan claims accrue on the date the loans were made, most of Plaintiffs loans claims in this case would be barred by the statute of limitations, unless the statute of limitations was tolled by the adverse domination doctrine. So, in their original briefs, Plaintiff and Defendants spent most of their time arguing about whether or not the doctrine of adverse domination applies in this case and, if it does, what level of .domination by the culpable directors Plaintiff is required to prove.
By the time Judge Kern received the ease in the late summer of 1994, the United States Supreme Court had rendered its decision in O’Melveny & Myers v. FDIC, 512 U.S. 79, 114 S.Ct. 2048, 129 L.Ed.2d 67 (1994). In September 1994, Judge Kern ordered the parties to file supplemental briefs to discuss the affect of O’Melveny on the statute of limitations issues raised by the parties. Again, the parties’ briefs focused on the adverse domination doctrine, arguing whether or not O’Melveny affected the Tenth Circuit’s decision in Bryan to adopt the doctrine of adverse domination as part of the federal common law. Plaintiff argued that O’Melve-ny left Bryan undisturbed. Defendants argued that O’Melveny required the Court to look to Oklahoma law, not federal common law, and Oklahoma law did not recognize the doctrine of adverse domination.
As discussed above, the Supreme Court in O’Melveny, and later in Atherton, greatly restricted the instances in which federal courts are permitted to create rules of decision under federal common law. Judge Kern found that the Supreme Court’s decision in O’Melveny undermined the Tenth Circuit’s conclusion in Bryan that application of the adverse domination doctrine would be controlled by federal common law, not state law. Judge Kern ordered the parties to address the need to certify questions regarding the adverse domination doctrine to the Oklahoma Supreme Court because Oklahoma had not squarely addressed the adverse domination doctrine. [Doc. No. 229]. After receiving the parties’ briefs, Judge Kern entered an order in December 1994 certifying to the Oklahoma Supreme Court questions of law relating to the adverse domination doctrine. [Doc. No. 240]. The Oklahoma Supreme Court was asked to decide whether Oklahoma law recognized the adverse domination doctrine and, if so, whether the doctrine would “delay accrual or toll the statute of limitations on [Plaintiffs claims] against corporate officers and directors while the wronged corporation is controlled by a majority of culpable directors and officers.” [Doc. No. 240],
The Oklahoma Supreme Court answered the certified questions relating to the adverse domination doctrine in late June 1995. [Doc. Nos. 245 and 246]. The Oklahoma Supreme Court held that the doctrine of adverse domination is part of Oklahoma’s common law, but that the doctrine only tolls the statute of limitations in those situations “involving fraudulent conduct exercised while the wronged corporation is controlled by a majority of culpable directors and officers.” [Doc. No. 246], See RTC v. Grant, 901 P.2d 807 (Okla.1995). In this case, Plaintiff has not alleged fraud on the part of Defendants. Therefore, Plaintiff concedes that the adverse domination doctrine does not apply to this case.
2. Supplemental Briefs: “Accrual” of the Statute of Limitations Under Oklahoma Law
In Bryan, the Tenth Circuit also held that the question of when a cause of action against an officer and/or director of a national bank “accrues” is a question of federal common law. The Tenth Circuit’s accrual holding is no longer correct in light of O’Mel-veny and Atherton. See Section 1(B), supra. As is the question of tolling by the adverse domination doctrine, the question of when a cause of action accrues is governed by state law, not federal common law. At the time Judge Kern certified questions to the Oklahoma Supreme Court, neither the parties nor the Court focused on the accrual issue or the incorrectness of Bryan’s accrual holding in light of O’Melveny. Thus, the questions certified to the Oklahoma Supreme Court focused only on the adverse domination doctrine.
While the certified questions were pending, this case was dormant from December 1994 to October 1995. During this lull, the case was reassigned to Judge Sven Erik Holmes in March 1995. Judge Holmes ordered the parties to file a joint status report and in October 1995, all motions were referred to the undersigned for report and recommendation. [Doc. No. 249], The undersigned held a status conference in December 1995.
At the December 1995 status conference, Plaintiff sought leave to file supplemental briefs in connection with Defendants’ statute of limitation motions. For the first time, Plaintiff wanted an opportunity to brief the issue which had been ignored when questions relating to the adverse domination doctrine were certified to the Oklahoma Supreme Court. That is, Plaintiff wanted an opportunity to brief Oklahoma law regarding accrual of its negligence, contract and breach of fiduciary duty claims. Plaintiff wanted an opportunity to demonstrate that under Oklahoma law, its loan claims did not accrue for purposes of the Oklahoma statute of limitations when the loans were made, but when Sooner Federal suffered harm caused by Defendants’ negligence. It is Plaintiffs position that Sooner Federal was not harmed, and, therefore, its claims did not accrue on each loan until the loan at issue suffered an “event of default.” The undersigned permitted briefing on the accrual issue and that briefing was filed in April 1996.
Oral argument on Defendants’ statute of limitations motions was heard in October 1996. At oral argument, Defendants argued that even under Plaintiffs accrual theory, all of the loans at issue in this case suffered an “event of default” more than three years prior to the date the FDIC was appointed as Sooner Federal’s conservator. Thus, Defendants argued that even under Plaintiffs accrual theory, all of Plaintiffs claims would be barred by the Oklahoma statute of limitations. To isolate the facts relating to “events of default” on each loan, the undersigned ordered the parties to file briefs indicating where in the record the Court could find the facts which established when each loan went into default. These “default” briefs were filed in November 1996. No additional briefing has been filed since that time, and Defendants’ statute of limitations motions are finally at issue.
II. EFFECT OF FDIC’S INCONSISTENT POSITIONS
Defendants argue that Plaintiff has done a dramatic flip flop on the accrual issue. That is, Defendants' argue that before the Oklahoma Supreme Court decided the adverse domination issue against Plaintiff, Plaintiff agreed with Defendants’ assertion that the loan claims in this case accrued when the loans were made. It was not until after the Oklahoma Supreme Court answered the adverse domination questions that Plaintiff advanced its current argument that under Oklahoma law its loan claims did not accrue when the loans were made, but when Sooner Federal suffered harm as a result of Defendants’ actions (i.e., when the loans defaulted). Defendants accuse Plaintiff of keeping its accrual arguments in its hip pocket until Plaintiff saw how the Oklahoma Supreme Court would rule on the adverse domination doctrine. Defendants also argue that in light of Plaintiffs current, accrual position, the certified questions to the Oklahoma Supreme Court were a waste of time and Judge Kern would never have certified questions if he had known Plaintiff would assert the ac-erual position it is now asserting. Based on their view of Plaintiffs conduct, Defendants argue that Plaintiff is estopped from making its current accrual arguments.
The doctrine of judicial estoppel bars a party from adopting inconsistent positions in the same or related litigation. United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986). In non-diversity cases, such as this, the Tenth Circuit has rejected the doctrine of judicial estoppel. See Osborn v. Durant Bank & Trust Co., 24 F.3d 1199 (10th Cir.1994); 49.01 Acres of Land, 802 F.2d at 390. The Tenth Circuit has reasoned that it is better to resolve eases on their merits. Courts should not decide cases on inaccurate or wrong propositions of law as a means of punishing a party. Any public policy against allowing parties to take inconsistent positions can be vindicated through avenues that do not discourage the determination of cases on their merits (e.g., sanctions). 49.01 Acres of Land, 802 F.2d at 390. Thus, in this Circuit Plaintiff is not judicially estopped from presenting its current accrual arguments. See also RTC v. Gregor, 872 F.Supp. 1140, 1153 (E.D.N.Y.1994) (rejecting the precise argument advanced by Defendants here).
The undersigned has reviewed the file and is convinced that in this case Plaintiff did not intentionally withhold its current accrual argument until after the Oklahoma Supreme Court’s answers to the adverse domination questions. As discussed above, when Defendants’ original statute of limitations motions were filed, the Tenth ■ Circuit’s decision in Bryan was the principal controlling authority. Bryan focused on the doctrine of adverse domination. So, the parties and the Court focused on the adverse domination doctrine. When it became clear that the United States Supreme Court’s decision in O’Melveny undermined the Tenth Circuit’s holding in Bryan, and the focus switched from federal common law to state law, the parties and the Court were still focused on the adverse domination doctrine. ' No one focused on the fact that O’Melveny also undermined the Tenth Circuit’s holding in Bryan that accrual was a matter of federal common law. It was not until after the Oklahoma Supreme Court rendered its decision that Plaintiff focused on the fact that accrual would also be governed by state law and not federal common law. It may be true that it was the defeat in the Oklahoma Supreme Court that caused Plaintiff to focus on the accrual issue. While that fact may merit an award of fees and costs to compensate for any resulting delay, it cannot prevent the Court from considering Plaintiffs arguments to determine the correct legal principles to be applied in this case.
III. THE NORTHTOWN INVESTORS LOANS ARE PROPERLY IN THIS LAWSUIT
Plaintiff filed its original Complaint on November 13, 1992. [Doc. No. 1]. Plaintiff filed its First Amended Complaint on February 12, 1993. [Doc. No. 24], Plaintiff filed its Second Amended Complaint on June 1,1993. [Doc. No. 35]. In these complaints, Plaintiff listed 35 loans which it considered to have been imprudently authorized, made and/or supervised by Defendants. Plaintiff expressly stated that the list of 35 loans was a non-exhaustive list of “example” loans. [Doe. No. I, ¶ 28; Doc. No. 24, ¶ 31; and Doc. No. 35, ¶ 38], Neither the Northtown Investors I nor the Northtown Investors II loans were listed in either the original, first amended or second amended complaints.
Early on in this case, the parties had several ease management' conferences before Magistrate Judge John L. Wagner. Because this case is a document intensive case and because a majority of the documents relevant to this case are in Plaintiffs possession, Magistrate Judge Wagner ordered Plaintiff to prepare and file a disclosure report. [Doc. No. 60 and 6/25/93 Minute]. The disclosure report was designed to reduce the amount of discovery that would otherwise be necessary. Plaintiff served its court-ordered Disclosure Report on November 11, 1993. [Doc. No. 311]. The Northtown Investors loans, along with several other loans which Plaintiff has since abandoned, appeared for the first time in Plaintiffs Disclosure Report. [Doc. No. 311, § IV(18) ].
Defendants argue that they cannot be held hable for the Northtown Investors loans. In support of their argument, Defendants advance two propositions. First, Defendants argue that the Second Amended Complaint violates Fed.R.Civ.P. 8(a)(2) because it fails to give Defendants reasonable notice that they may be held hable in connection with the Northtown Investors loans. Second, Defendants argue that the addition of the Northtown Investors loans in the Disclosure Report is a “de facto ” amendment of the Second Amended Complaint (i.e., a Third Amended Complaint). If the Disclosure Report is treated as an amendment to the Second Amended Compliant, Defendants argue that any claims relating to the Northtown Investors loans would be barred by the applicable statute of limitations because the newly added claims would not “relate back” under Fed.R.Civ.P. 15(c).
Plaintiff responds by arguing that its Second Amended Complaint satisfies Rule 8(a)(2)’s notice pleading requirement and it is not required to hst specific loans in a complaint. In the alternative, Plaintiff argues that if the Second Amended Complaint fails to comply with Rule 8(a)(2), then the Disclosure Report should be treated as an amendment to the Second Amended Complaint and that amendment will “relate back” to the original Complaint under Rule 15(c).
The procedural posture of the parties’ positions is not clear from their briefs. In order to clarify the appropriate standards to be applied, the undersigned will treat Defendants’ pleadings on this issue as a motion to dismiss any claims based on the Northtown. Investors loans for failure to properly state a claim under Fed.R.Civ.P. 8. The undersigned will treat Plaintiffs pleadings on this issue as a response to Defendants’ motion to dismiss, and, in the alternative, a request for leave to amend. So characterized, the undersigned finds that loan claims based on the North-town Investors loans are not properly pled in the Second Amended Complaint and recommends that Defendants’ motion to dismiss those claims for failure to comply with Fed. R.Civ.P. 8 be granted. However, the undersigned further recommends that Plaintiff be granted leave to amend its Second Amended Complaint to add claims based on the North-town Investors loans. The undersigned also finds that any amendment adding claims based on the Northtown Investors loans will relate back to date of the original Complaint under Fed.R.Civ.P. 15. Thus, the undersigned ultimately recommends that claims based on the Northtown Investors loans be recognized as properly plead in this lawsuit.
A. Defendants’ Motion To Dismiss And Rule 8’s Pleading Standard
“The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Pursuant to Fed.R.Civ.P. 8, a complaint need only “contain a short and plain statement of the claim showing that the pleader is entitled to relief _” Fed. R.Civ.P. 8(a)(2). “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.” Fed.R.Civ.P. 8(e)(1).
[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. The illustrative forms attached to the Rules plainly demonstrate this. Such simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and- the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and define more narrowly the dis- ' puted facts and issues.
Conley, 355 U.S. at 47-48, 78 S.Ct. 99 (footnotes omitted). See also New Home Appliance Center, Inc. v. Thompson, 250 F.2d 881, 883-84 (10th Cir.1957) (holding that a complaint need only contain a generalized statement of facts from which a defendant can formulate an answer).
The touchstone of Rule 8’s notice pleading regime is fair notice. Mountain View Pharmacy v. Abbott Laboratories, 630 F.2d 1383, 1386 (10th Cir.1980). The job of a complaint is to provide the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests, without requiring plaintiff to have developed every theory and fact before the complaint is filed. Id.; Evans v. McDonalds Corp., 936 F.2d 1087, 1091 (10th Cir.1991). While this rule applies to all cases, the amount of detail which must be pled to provide the opposing party with fair notice of a claim changes from case to case. Mountain View, at 1386-87.
For example, a complaint for conversion or to recover on a note, can be stated in half a page. On the other hand a complaint dealing with a more complex matter, as in an antitrust action, and action to enjoin enforcement of an unconstitutional statute, an interpleader suit, or a stockholder’s action will be more extended and may require more particularity [to put a defendant on notice].
Id. at 1387 (citing 2A James Wm. Moore et al., Moore’s Federal Practice ¶ 8.13 (2d ed.1979)).
In Mountain View, Plaintiff alleged not much more than that 13 defendants violated the antitrust laws when they sold their products. Plaintiff simply recited statutory language and gave no specifics as to the offending defendants, the injured parties, or the products involved. The Tenth Circuit found such, a complaint to be in violation of Rule 8 as it did not provide the defendants with fan-notice of plaintiffs antitrust claims. Mountain View, 630 F.2d at 1387-88. In reaching this conclusion, the Tenth Circuit cited with approval the following language from a Second Circuit opinion written by Judge Friendly: “A mere allegation that defendants violated the antitrust laws as to a particular plaintiff and commodity no more complies with Rule 8 than an allegation which says only that a defendant made an undescribed contract with the plaintiff and breached it, or that a defendant owns a car and injured plaintiff by driving it negligently.” Id. at 1387 (citing Klebanow v. New York Produce Exchange, 344 F.2d 294, 299 (2d Cir.1965)).
Based on the authorities discussed above, the undersigned finds that Plaintiff should be required to list in its complaint the specific loan transactions for which Plaintiff intends to hold Defendants liable. Without specifying the individual loans at issue, Plaintiffs complaint alleges nothing more than (1) Defendants had the authority to make, approve or supervise unspecified loans, and (2) Defendants injured Sooner Federal by improperly making, approving and/or supervising unspecified loans. A pleading failing to allege specific loan transactions is not materially different from a pleading alleging that defendant owns a car and injured plaintiff by driving it negligently. In Mountain View, the Tenth Circuit held that such vague pleading violates Rule 8.
Plaintiff originally brought this action against 15 defendants. These defendants served on Sooner Federal’s board or were officers at different and overlapping times during a ten year period. Plaintiff alleged that Defendants engaged in wrongful conduct for a period of six years, between 1982 and 1988. During this six year period, Sooner Federal made many loans. A complaint which does not at' least allege which loans are at issue does not provide Defendants with fair notice of the claims being asserted against them. Without knowing which loan transactions are at issue, Defendants cannot be expected to prepare an adequate responsive pleading. Requiring Plaintiff to list the loan transactions at issue provides Defendants with fair notice and it does not require Plaintiff to plead with great factual specificity. Thus, an appropriate balance between Rule 8’s fair notice and “short and plain statement” requirements is achieved. The undersigned finds, therefore, that regarding claims based ■ on the Northtown Investors loans, Plaintiffs Second Amended Complaint fails to comply with Fed.R.Civ.P. 8.
B. Plaintiff’s Motion For Leave To Amend
It is clear from the transcripts of the case management conferences held by Magistrate Judge Wagner that the parties and the Court expected the November 1993 Disclosure Report to be a comprehensive statement by Plaintiffs of all claims being asserted against Defendants. In many respects, the Disclosure Report is like a one-sided pretrial order. It appears as if the parties’ and Magistrate Judge Wagner’s intent was that the Disclosure Report, like a pre-trial order, control the subsequent course of Plaintiffs case. See, e.g., Fed.R.Civ.P. 16(e). Plaintiffs were to review the documents in its possession and identify the loans on which it would seek to hold Defendants liable. For each loan identified, Plaintiff was to (1) identify the phase, time period or aspect of the loan each Defendant was involved with; (2) identify the underlying theory of liability; (3) summarize its expert’s opinion and methodology regarding damages; (4) prepare a list of fact witness as to each loan; and (5) produce copies of all exhibits supporting Plaintiffs claim with respect to each loan. It is not surprising that such a comprehensive Disclosure Report might contain new information that was not present in the original Complaint.
Amendments are to be freely allowed when justice so requires. Fed.R.Civ.P. 15(a). “Justice” ordinarily requires that leave to amend be granted unless the party seeking to amend is guilty of delay, bad faith, dilatory motive or unless the amendment' would be futile or unduly prejudicial to the opposing party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The Disclosure Report was served by Plaintiff less than one year after the lawsuit was filed and at a time when no discovery had taken place. The case was essentially on hold, pending preparation and service of the Disclosure Report by Plaintiff. At the time the Disclosure Report was ordered by the Court and served by Plaintiff, there is no evidence that Plaintiff was guilty of delay, bad faith or dilatory motive. Defendants have known for the past three and one half years that Plaintiff was seeking to hold them liable for the Northtown Investors loans. The undersigned finds, therefore, that justice requires and no prejudice would result from the Second Amended Complaint being amended to include the Northtown Investors loans in ¶ 38.
1. Relation Back
Defendants argue that amendment of the Second Amended Complaint should not be permitted because an amendment would be futile. See Foman, 371 U.S. at 182, 83 S.Ct. 227 (holding that leave to amend may be denied if amendment would be futile). Defendants argue that the amendment would be futile because the newly added claims (i.e., claims based on the Northtown Investors loans) would not “relate back” under Fed. R.Civ.P. 15(c). Without relation back, Defendants argue that the newly added claims would be barred by the applicable statute of limitations and it is futile to allow an amendment to add claims which are barred by the statute of limitations. The undersigned does not agree and finds that the amendment adding the Northtown Investors claims does relate back to the date the original Complaint was filed.
Under the Federal Rules of Civil Procedure, an amendment to a complaint will relate back to the date of the original complaint when the claim asserted in the amended pleading arises “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). The theory behind this rule is that “once litigation involving particular conduct or a given transaction has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of ... claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading.” 6A‘Charles A. Wright et al., Federal Practice and Procedure: Civil 2d § 1496 (1990). Because the purpose of a statute of limitations is to prevent the assertion of stale claims, its purpose is not violated by allowing, after the statute has run, the addition of claims arising out of conduct, transactions or occurrences which are already a part of active litigation. See FDIC v. Conner, 20 F.3d 1376, 1385 (5th Cir.1994).
The Fifth Circuit, addressing the precise issue presented by Plaintiffs motion for leave to amend, held that under Fed.R.Civ.P. 15(c) newly-added loan claims relate back. FDIC v. Conner, 20 F.3d 1376 (5th Cir.1994). The undersigned finds the Fifth Circuit’s analysis persuasive and recommends its application to this case. In Conner, the FDIC sought leave to file an amendment which added allegations that defendants’ wrongful conduct caused the bank to suffer losses in connection with several loans made by defendants, but not identified in the original complaint. The defendants opposed the motion for leave to amend, arguing that the amendment would be futile. The defendants argued that the amendment would not relate back under Rule 15(c) and any claims based on the new loans would, therefore, be barred by the statute of limitations.
The Fifth Circuit rejected defendants argument with the following language:'
In the present case, we hold that the amended complaint should relate back to the date of the original complaint. The damage allegedly caused by the loans that the FDIC seeks to include in this ease arose out of the same conduct as the damage caused by the twenty-one loans listed in the original complaint. The conduct identified in the original complaint that allegedly caused the defendants to approve the loans listed in that pleading also allegedly caused the defendants to approve the loans that the FDIC seeks to include in this case through the amended complaint. The FDIC’s amendment thus seeks to identify additional sources of damages that were caused by the same pattern of conduct identified in the original complaint.
Conner, 20 F.3d at 1386. The rationale for the Fifth Circuit’s holding applies with equal force to this case.
Rule 15(c) allows relation back when the claims asserted in the amendment arise out of the same “conduct, transaction or occurrence.” Fed.R.Civ.P. 15(c). The disjunctive phrasing of these three terms makes it clear that the new claim need not arise out of the same transaction or occurrence- as the original elaimé. As long as the new claim arises out of the same “conduct” as the original claims, the new claim will relate back under Rule 15(c). In its original and amended complaints, Plaintiff identified conduct that allegedly caused or contributed to Defendants’ improper approval and/or supervision of the 35 loans listed in those complaints. This same conduct also allegedly caused Defendants to improperly approve and/or supervise the Northtown Investors loans. See Second Amended Complaint, Doe. No. 35. By adding the Northtown Investors loans, Plaintiff is merely seeking to identify an additional source of damage caused by the same pattern of conduct identified in the original, first amended and second amended complaints. The undersigned recommends, therefore, that Plaintiffs motion for leave to amend ¶38 of the Second Amended Complaint to add the Northtown Investors loans be granted.
Claims based on the Northtown Investors loans will be treated as if they were in the original complaint (i.e., they will relate back). The Northtown Investors loans are, therefore, timely under FIRREA’s extended statute of limitations. The issue still remains, however, whether they, along with all the other loan claims being asserted by Plaintiffs, were timely under Oklahoma law when the RTC was appointed on November 16, 1989. See discussion in section 1(A), supra, and section IV, infra.
IV. WERE PLAINTIFF’S CLAIMS TIMELY UNDER OKLAHOMA LAW WHEN THE FDIC WAS APPOINTED ON NOVEMBER 16,1989?
Whether an action is barred by the applicable statute of limitations is a question of fact to be determined by considering the. evidence in each case. MBA Commercial Construction, Inc. v. Roy J. Hannaford Co., Inc., 818 P.2d 469, 472 (Okla.1991); American Ins. Union v. Jones, 135 Okla. 101, 274 P. 478, 479 (1929). The party asserting the statute of limitations as a defense has the burden to present evidence reasonably tending to establish the time bar. Id. Trinity Broadcasting Corp. v. Leeco Oil Co., 692 P.2d 1364, 1367 (Okla.1984). Thus, summary judgment on a statute of limitations defense is appropriate only when there is no genuine issue of material fact as to when the statute of limitations began to run (i.e., when the cause of action accrued) or the running of the limitations period. See Fed.R.Civ.P. 56. Oklahoma law provides as follows:
Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of •action shall have accrued, and not after-wards:
2. Within three (3) years: An action upon a contract express or implied not in writing ....
3. Within two (2) years: [A]n action for injury to the rights of another, not arising on contract, and not hereinafter enumerated ....
10. An action for relief, not hereinbe-fore provided for, can only be brought within five (5) years after the cause of action shall have accrued.
12 Okla. Stat. § 95. Under this statute, Plaintiffs negligence claims would be subject to a two year statute of limitations and Plaintiffs oral contract claims would be subject to a three year statute of limitations. It is not clear, however, what limitations period would apply to Plaintiffs breach of fiduciary duty claims. All of these limitations periods begin to run from the date the cause of action “shall have accrued.” The remainder of this Report and Recommendation will discuss when each of Plaintiffs causes of action accrued.
A. Accrual Of Plaintiff’s Negligence Claims
Under Oklahoma law,
[t]he limitations periods in [12 Okla. Stat. § 95 begin] to run from the time the elements of a cause of action arise. The elements of a cause of action arise, that is, the cause of action accrues when a litigant first could have maintained his action to a successful conclusion.
The three elements of actionable negligence are: (1) the existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) a violation of that duty; and (3) injury proximately resulting therefrom. The substantive right to damages vests when these three elements are present.
In order for a litigant to maintain a negligence action to a successful conclusion, the litigant must [be able to] allege injury or damages that are certain and not speculative. Thus, the summary judgment [motions] herein must be supported by evidence that establishes the time injuries or damages that are certain and not speculative were sustained by [Sooner Federal].... At that time the alleged negligence action accrued and the time limitations in § 95(3) began to run.
MBA Commercial, 818 P.2d at 473-74 (internal citations omitted). See also Marshall v. Fenton, Fenton, Smith, Reneau and Moon, P.C., 899 P.2d 621, 623-24 (Okla.1995); and Stephens v. General Motors Corp., 905 P.2d 797, 799 (Okla.1995).
In this case, the ultimate question is this: At what point did it become definite and certain that Sooner Federal would suffer damage as a result of Defendants’ negligence? See, e.g., Wynn v. Estate of Holmes, 815 P.2d 1231, 1233 (Okla.App.1991). In other words, a plaintiff does not have to sustain damages for the statute of limitations to begin running. Rather, the important moment in time is the moment it becomes a certainty that a plaintiff will be damaged, even if the damage will not occur for some time in the future. The requirement that damages be certain and not speculative is best illustrated by two Oklahoma Supreme Court flood cases. See Murduck v. City of Blackwell, 198 Okla. 171, 176 P.2d 1002 (1946) and City of Stillwater v. Robertson, 192 Okla. 395, 136 P.2d 923 (1943).
In Robertson, the City of Stillwater built a dam in 1926 to create a lake that would provide a municipal water supply. In 1933, the City increased the height of the dam by two feet to impound more water for the City. After the dam was raised, the lake level dropped, instead of rose, because of several dry years. It was not until the spring of 1941 that abundant rains filled the lake and Plaintiffs property' was flooded. Plaintiff sued the. City for trespass to recover for damage done to his property. The City argued that plaintiffs claim was barred by a two year statute of limitations. The issue before the court was when did plaintiffs claim accrue — in 1933 when the dam was raised or in 1941 when plaintiffs property was eventually flooded? As with a negligence claim,'the Court held that a claim for trespass to real property caused by an improvement accrues at the moment it appears that injury to the property is certain to occur. Robertson, 136 P.2d at 924; Murduck, 176 P.2d at 1009. The Court held that, at the time the dam was raised, injury to plaintiffs property was certain to occur. It was obvious to everyone that once the dam was raised two feet, the lake level would rise two feet and overflow plaintiffs property. Robertson, 136 P.2d at 924. In other words, “it was a matter of mathematical calculation and therefore certain that plaintiffs land lying below the level of the water in the new lake would be overflowed.” Murduck, 176 P.2d at 1009. Plaintiffs claim accrued, therefore, at the time the dam was raised, not when his property was flooded.
The plaintiffs in Murduck owned a parcel of farmland. The south side of plaintiffs’ farmland was a natural basin or depression which could not drain on its own. In 1908, the owner of the farmland constructed a 10 inch drain that ran 3,065 feet from the center of the basin toward the Chickaskia River. The drain emptied into a small ditch which was about six to eight feet deep. The ditch emptied into the Chickaskia River and .the system worked well for 28 years. ,In 1936, the City of Blackwell dammed the Chickaskia River to form a reservoir to be used as a municipal water source. The Chickaskia River flooded in 1942 and flood waters filled plaintiffs’ basin. When the Chickaskia River returned to normal, the flood waters trapped in plaintiffs’ basin did not drain away. The evidence established that from 1937 to 1943, after the dam was constructed, silt and mud had settled in, around and over the ditch into which the plaintiffs drain emptied. The silt and mud eventually filled the ditch so full that plaintiffs’ drain outlet could no longer be found. ’ Murduck, 176 P.2d at 1004-1010.
The plaintiffs in Murduck sued the City of Blackwell and the City argued that plaintiffs’ claim was barred by the statute of limitations. Relying on Robertson, the City argued that plaintiffs’ claim accrued when the dam was built in 1936, not when plaintiffs’ basin was flooded in 1942. The Court disagreed, holding as follows:
It cannot be said that it was obvious when the dam was completed that would occur. No one could tell, or know, that would occur or where or to what extent silt or mud Would settle at and around the outlet of plaintiffs’ drainage tile. No one knew what had happened until the City lowered the level of the lake so as to expose the accumulated silt and mud.
It does not appear as a certainty that plaintiffs’ damages were obvious at • the time the dam was constructed. In any event, it would, under the rules stated in the decisions above cited, be a question of fact for the jury and not one for the court. We cannot say as a matter of law that plaintiffs’ action was barred by the statute of limitations.
Murduck, 176 P.2d at 1009-1010.
The parties seem to agree that a negligence claim in Oklahoma accrues when damage caused by the alleged negligent acts is certain to occur. In the context of negligent lending by an officer and/or director of a depository institution, the parties take different positions on when damage to a depository institution is certain to occur. Defendants argue that damage to a depository institution is always certain to occur at the time a loan is made (i.e., when the institution parts with its money). Plaintiff argues that damage to a depository institution is certain only when it becomes clear that the borrower will not repay the loan. Plaintiff argues that the first time it became certain that Sooner Federal would not be repaid on the loans at issue was “when the collateral was foreclosed or some other disposition was made.” [Doc. No. 269, p. 9],
The undersigned declines to adopt either of the absolutist positions advanced by the parties. The undersigned declines to find that as a matter of law a depository institution is always or never injured by an officer’s or director’s negligence at the time a loan is made or foreclosed. When damage to a depository institution becomes certain and not speculative is a question to be answered by looking at the facts of each loan transaction. There are no bright lines. In some instances, damages may be certain at the time a loan is made. In other instances, the fact that the depository institution will be damaged may not become certain until the loan has to be restructured and/or foreclosed. For the loans at issue, the undesigned has reviewed all the materials submitted by the parties and finds that there are genuine issue of material fact as to when the damage alleged by Plaintiff first became certain and not speculative. Summary judgment is, therefore, not appropriate on Plaintiffs negligence claims.
Defendants argue that the entire theory underlying Plaintiffs negligence claims is that the collateral received by Sooner Federal in exchange for the loans at issue was not as valuable or tangible as it should have been (i.e., the loans were under-collater-alized). Defendants argue that “accrual at the time a loan is made” is the only accrual rule that can be applied to such a theory. Defendants argue that a depository institution is injured immediately when it parts with funds to make a loan and it receives collateral worth less than it should be worth using proper loan underwriting standards. Defendants argue that this damage can be measured by looking at the “difference in value between what [Sooner Federal] has paid (the loan amount) and what it has received (a promise of repayment by a non-creditworthy borrower).” [Doc. No. 278, pp. 14-15],
Although there are no cases directly on point in Oklahoma, the undersigned does not believe that Sooner Federal would have been able to sue a director under Oklahoma law the moment that director made an allegedly under-collateralized loan. As discussed above, a negligence claim in Oklahoma becomes actionable only when damages are certain to occur as a result of the alleged negligence. When a depository institution’s director approves and/or makes a loan to a borrower and that borrower is timely repaying the loan, the undersigned believes that an Oklahoma court would not permit the depository institution to sue the director for negligence in connection with the loan. It may be true that the depository institution has an insecure collateral position. It may also be true,'however, that, despite its insecure collateral position, the depository institution will be repaid in full on the loan. How is the depository institution damaged if the loan is timely and fully repaid? Thus, it seems entirely speculative, and not certain, that a depository institution has suffered damages on a loan that is being timely repaid. Under Oklahoma law, the depository institution’s negligence claims against the director would not, therefore, accrue at the time the loan was made. See FDIC v. Stahl, 89 F.3d 1510, 1522 (11th Cir.1996) (applying Florida’s statute of limitations, which is very similar to Oklahoma’s, and holding that negligence action accrues when loan defaults, not when the loan is made).
Defendants attempt to demonstrate that even if Sooner Federal is repaid in full on an under-collateralized loan, it suffers some damage. For. example, Defendants argue that because a loan is under-collateralized that loan should command a higher interest rate, which Sooner Federal would have charged but for the- negligence of Defendants. Defendants also argue that, but for their alleged negligence in disbursing certain loan proceeds, Sooner Federal would have had more capital available to loan on transactions that were less risky and more profitable. Defendants also argue that negligent lending causes an increase in a depository institution’s reserves, which makes less capital available for lending. Defendants point to all of this and argue that, as a whole, negligent lending produces an immediate detriment to a depository institution and causes an immediate profits decline. [Doe. No. 278, pp. 14-15]. While all of this may be true, there is no record evidence to support any of Defendants’ assertions. In other words, there is no evidence in the current record that any of the above-described residual damages occurred in this case or that they were proximately caused by Defendants’ negligence. Defendants may present evidence on these issues at'trial in an attempt to convince the jury that damage to Sooner Federal was indeed immediate and certain at the time the loans at issue were made. Defendants are not, however, entitled to summary judgment on these issues based on the record before the Court.
Defendants’ limitation of Plaintiffs negligence claims to under-collateralization of loans is also unduly restrictive. In ¶ 37 of the Second Amended Complaint, Plaintiff identifies at least 17 types of negligent conduct which it alleges caused damage to Sooner Federal. Only one out of the list of 17 deals with the making of under-collateralized loans. Much of the other conduct alleged in ¶ 37 to have been negligent could not have occurred until after a particular loan was made. For example, ¶ 37(1) alleges that Defendants “[allowed [Sooner Federal] to fore-go periodic inspections and evaluations of collateral.” Paragraph 37(l) alleges that Defendants “[flailed to monitor the use of loan proceeds.” Paragraph 37(o) alleges that Defendants “[allowed renewal of loans with no reduction in principal and with past-due interest capitalized.” Paragraph 37(p) alleges that Defendants “[allowed release of collateral for inadequate consideration and failed to aggressively pursue collateral when default occurred.” All of this conduct is conduct which occurs after a loan is initially made. In other words, a loan may have been properly collateralized when made and Defendants could have been negligent for failing to conduct periodic inspections of the collateral or for inappropriately releasing the collateral at a later date. It makes no sense to apply to this type of conduct an accrual rule that focuses on when the original loan was made.
To date, discovery has not progressed with respect to Plaintiffs claims against Defendants. Thus, it is not clear from the record before the Court what negligent conduct alleged in ¶ 37 of the Second Amended Complaint is or is not applicable to each loan left in this case. Nevertheless, the thrust of Plaintiffs negligence claims is really that in the early 1980’s Sooner Federal shifted from residential mortgage lending to commercial lending and Defendants were negligent in the planning, installation, execution and supervision of Sooner Federal’s overall commercial lending program. [Doc. No. 31, §§ IV and VIII]. In other words, it may be that the damage resulting from a particular loan was proximately caused by negligent acts which occurred after the loan whs made.
Defendants cite several cases for the proposition that it is “black letter law” that a depository institution’s claim for negligence in connection with a loan made, approved and/or supervised by one of its directors accrues at the time the loan is made. The undersigned will not distinguish every case cited by Defendants. Oklahoma law governs the viability of Plaintiffs claims. To the extent that the eases cited by Defendants rely on non-Oklahoma law or law not in accord with Oklahoma’s statute of limitations’ jurisprudence, Defendants’ reliance on those cases is misplaced. See Stahl, 89 F.3d at 1522.
Defendants rely on Corsicana Nat Bank of Corsicana v. Johnson, 251 U.S. 68, 40 S.Ct. 82, 64 L.Ed. 141 (1919). In Corsicana, a bank brought an action in February 1910 against one of its directors to hold him liable for making a loan in violation of § 5200, Rev. Stat. See 12 U.S.C. § 84. Section 5200 prohibits a bank from loaning more than 10% of the value of its capital stock to any one entity. A director violates § 5200 only if he knowingly or intentionally makes a loan in excess of § 5200’s limits. At all relevant times, the value of the bank’s capital stock was $200,000.00. Thus, the largest loan permitted to one entity under § 5200 was $20,-000.00. On June 10, 1907, defendant, as a director of the bank, approved what was determined to be a single loan of $30,000.00 to a single entity. Id. at 70-74, 40 S.Ct. 82. Section 5239, Rev. Stat., provides that a director who violates § 5200 becomes personally liable to the bank in his individual capacity for any loan made in excess of the limits in § 5200. See 12 U.S.C. § 93. Under §§ 5200 and 5239, the bank' is not required to await the maturity of the loan. The director must immediately take the loan off the bank’s hands and restore to the bank the money lent in violation of § 5200. Id. at 71, 86-87, 40 S.Ct. 82. Defen