812 F. Supp. 1 (1992) | Cited 0 times | D. Maine | December 18, 1992



The Court has before it for action at this time the Motion of Defendant Federal Deposit Insurance Corporation (hereinafter "FDIC") for Summary Judgment (Docket No. 16). The motion is supported by Defendant's Memorandum in Support of the Motion (Docket No. 17), a Statement of Material Facts Not in Dispute by Defendant FDIC (Docket No. 18), and the Affidavits of K. McDermott and T.R. Eastaugh (Docket Nos. 19 and 20). Plaintiff has filed no response to the motion.


A motion for summary judgment must be granted if:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c). The Court of Appeals for the First Circuit has articulated the legal standard to be applied in deciding motions for summary judgment:

The movant must adumbrate 'an absence of evidence to support the nonmoving party's case.' Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When that is accomplished, the burden shifts to the opponent to establish the existence of a fact issue which is both 'material,' in that it might affect the outcome of the litigation, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 47 L. Ed. 2d 754, 96 S. Ct. 1495 (1976), and 'genuine,' in that a reasonable jury could, on the basis of the proffered proof, return a verdict for the opponent. Anderson, 477 U.S. at 248; Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988). It is settled that the nonmovant may not rest upon mere allegations, but must adduce specific, provable facts demonstrating that there is a triable issue. 'The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.' Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). As the Supreme Court has said:

There is no issue for trial unless there is sufficient evidence favoring the nomoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Anderson, 477 U.S. at 249-59.

Brennan v. Hendrigan, 888 F.2d 189, 191-92 (1st Cir. 1989).

It is well-established law in this district that Fed. R. Civ. P. 56 requires the Court to examine the merits of a motion for summary judgment even though a nonmoving party fails to object as required by Local Rule 19(c). Gagne v. Carl Bauer Schraubenfabrick, 595 F. Supp. 1081, 1084 (D. Me. 1984); McDermott v. Lehman, 594 F. Supp. 1315 (D. Me. 1984). However, a party who fails to object to a motion for summary judgment within ten days, as is required by Local Rule 19(c), is deemed to have consented to the moving party's statement of facts to the extent it is supported by appropriate record citations. Lehman, 594 F. Supp. at 1321.


The Court has examined carefully the written submissions in support of the motion and CONCLUDES that there is no genuine issue of fact and that the Defendant is entitled to judgment as a matter of law on the basis of its contention that no "change of control event" had occurred prior to the failure of Maine Savings Bank (hereinafter "MSB") and that Plaintiff, therefore, has no provable claim against the Receiver under the employment contract that existed between Plaintiff and MSB prior to the failure for benefits payable upon a change in control as provided for in the contract. The contract clearly provides that the benefits sought to be recovered by the Complaint become payable only upon the occurrence of a "change in control event" as those events are described in paragraph 2 of the agreement between Plaintiff and MSB dated November 1, 1988. Exhibit "A" to Docket No. 18. It is established by the Statement of Material Facts (Docket No. 18), in paragraphs 8-11, that no change of control event, as defined in the agreement, had occurred prior to February 1, 1991, the date of MSB's failure. Those assertions of fact are established by appropriate supporting references to materials of evidentiary quality in the record on the Motion for Summary Judgment. 1"

It is, therefore, established on this record, without dispute, that the operative factual event -- that is, a "change in control event" as defined in Plaintiff's employment contract with MSB -- has never occurred. The language of the contract defining such event is clear and unambiguous. See Portland Valve, Inc. v. Rockwood Systems, 460 A.2d 1383, 1387-88 (Me. 1983). Accordingly, there can be no genuine issue of material fact as to whether Plaintiff is entitled to the benefits sought by the Complaint under the employment agreement. It is clear that the Defendant is entitled to judgment as a matter of law.

Accordingly, it is hereby ORDERED that Defendant FDIC's Motion for Summary Judgment be, and it is hereby, GRANTED. Judgment to enter.


Chief Judge

Dated at Portland, Maine this 18th day of December, 1992.

1. It is further established by the Affidavit of K. McDermott, at paragraph 6, that Fleet Bank did not assume any liability in connection with any employee benefit plans or employee contracts under its Purchase and Assumption Agreement with FDIC.

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