Furnelli v. FDIC

• Court: District Court, D. New Hampshire
• Decided: May 28, 1993
• Docket: CV-92-223-B
• Status: Published

Opinion

Furnelli v. FDIC CV-92-223-B 05/28/93

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Furnelli and Lisa Furnelli

v. Civil No. 92-223-B

Federal Deposit Insurance Corporation

O R D E R

The plaintiffs, Lisa and Richard Furnelli ("the Furnellis")

ask that the FDIC, liquidating agent for the failed Durham Trust

Company, ("the Bank") return certain items of personalty to them

and that the FDIC pay them one week's wages for work performed

under an alleged oral agreement with the Bank. This claim was

originally brought as a small claims complaint in the Durham

District Court in Strafford County. The FDIC removed this case

to the Federal District Court, where Magistrate Judge Justo

Arenas held an evidentiary hearing on October 7, 1992 to

determine whether the FDIC owed the Furnellis wages and whether

the Furnellis still owned the personal property. Soon after the

hearing, pursuant to the Magistrate Judge's Order of October 7,

1992, the FDIC moved that the Furnelli's claims be dismissed

pursuant to Fed. R. Civ. P. 41(b). The Furnellis objected, and

the Magistrate Judge issued his Report and Recommendation on

January 7, 1993, recommending that the court grant the FDIC's motion to dismiss. Since this is a final and dispositive motion,

I have reviewed the case de novo pursuant to 28 U.S.C. § 636(C).

I will accept in part the Magistrate Judge's Report and

Recommendation to the extent that it denies the Furnellis

recovery on their claim for wages. However, I decline to accept

the recommendation with regard to the items of personalty.

I. FACTS

The plaintiffs were caretakers of an inn owned by Mr.

Furnelli's parents pursuant to a mortgage agreement with the

Bank. The Bank subseguently foreclosed on the inn and allegedly

entered into an oral agreement to pay the plaintiffs $450 per

week to stay on as caretakers of the property. The Bank then

failed and was taken over by the FDIC as liguidating agent. The

FDIC served the plaintiffs with an eviction notice and warned

them to remove their personal belongings. When the Furnellis

left the inn, they left behind certain personalty including a

swing set, a club house, two picnic tables, two dog houses, a 15-

foot garden hose and 75 pounds of venison meat. They seek return

of these items or their value and payment for the week they

stayed on as caretakers of the inn after the FDIC took over.

II. DISCUSSION

I. Standard of Review

Although this motion was brought under Federal Rule of Civil

Procedure 4 1 (b), this rule applies where the plaintiff has failed

- 2 - to "prosecute or to comply with [the Federal Rules of Civil

Procedure] or any order of court," Fed. R. Civ. P. 41(b);

Colokathis v. Wentworth-Douqlass Hosp., 693 F.2d 7 (1st Cir.

1982), cert, denied 103 S.Ct. 1894 (1983) (dismissed where there

had been a four-and-one-half year delay due to plaintiff's

inability to get along with counsel); Corchado v. Puerto Rico

Marine Management Inc., 665 F.2d 410 (1st Cir. 1981)(dismissed

because of persistent failure to respond to discovery). The FDIC

has provided no evidence that this rule applies in the present

case. However, upon de novo review of the pleadings, I find that

summary judgment pursuant to Federal Rule of Civil Procedure 56

is appropriate on the issue of wages in this case. Accordingly,

I will treat this motion as a motion for summary judgment,

finding for the moving party only where there is no disputed

material fact and where the moving party is entitled to judgment

as a matter of law. Medina-Munoz v. R.J. Reynolds Tobacco Co.,

896 F.2d 5, 8 (1st Cir. 1990); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250-51 (1986).

II. Wages

The Furnellis contend that the FDIC owes them $450 in wages

for the week of work they performed between the time the FDIC

took over the Bank and the time the FDIC evicted them from the

inn. The Furnellis cannot recover on this claim because it is

based on an oral agreement for services and is therefore barred

by the common law D 'Oench Doctrine. Winterbrook Realty, Inc v.

- 3 - FDIC, 90-561-JD, Slip Op. at 8-9 (April 22, 1993 (DiClerico,

C.J.).

III. The Personal Property

The FDIC contends that as liquidating agent for the Bank,

they have an interest in the property including the contested

personalty pursuant to the Security Agreement signed October 2,

1992. However, a genuine dispute exists as to whether the

Furnellis' property was subject to the Security Agreement.

Accordingly, summary judgment is inappropriate on this issue.

III. CONCLUSION

For the reasons stated above, the Magistrate Judge's January

27, 1993 Report and Recommendation (document no. 14) is approved

in part. Defendant's Motion to Dismiss (document no. 13) is

granted in part and denied in part.

SO ORDERED.

Paul Barbadoro United States District Judge May 28, 1993

cc: Richard and Lisa Furnelli Edwinna Vanderzanden, Esq.

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