USCA1 Opinion

January 19, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
__________________

No. 93-1648

ST. HILAIRE & ASSOCIATES, INC.,

D/B/A CORSO ELECTRIC CO., ET AL.,
Plaintiffs, Appellants,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, ETC., ET AL.,
Defendants Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
___________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
___________________
Gray
H. Reiner,
_________________
appellants.

Reiner and
Bouffard
______________________

on

brief

for

Ricky L. Brunette, Law Office of Susan J. Szwed on brief for

_________________
______________
appellees.

__________________
__________________

Per Curiam.
___________

Appellant, St. Hilaire & Associates, Inc.,

D/B/A Corso Electric Co., and

dismissal

of

their

action

Albert St. Hilaire, appeal the

against

the

Federal

Deposit

Insurance Corporation [FDIC], as receiver for Numerica

Bank,

Federal Savings

Trust

Corporation
Savings

Bank [Numerica],

[RTC],

as

and

conservator

Association [Homebank FSA].

the Resolution
for

Homebank

Federal

We vacate the dismissal

and remand to the district court for further proceedings.

We take the

following facts from the

the facts pleaded in the complaint as true.

Albert St. Hilaire

record, accepting
In 1987 or 1988,

[St. Hilaire], president of

Inc. [the corporation],

sought financing from

St. Hilaire,
Numerica Bank

of

Manchester, New

agents of

Hampshire.

Numerica indicated to

Subsequently,
St. Hilaire

officers and
that they

had

transferred to Homebank, Federal Savings Bank [Homebank FSB],

a

fully owned subsidiary

of Numerica.

They also requested

that he allow them to transfer the financing arrangements for

the corporation to Homebank FSB as well.
and in 1988,

St. Hilaire agreed,

financing totalling approximately

provided by Homebank
extend further

FSB.

In 1991, Homebank

$450,000 was
FSB refused to

credit to the corporation, and,

as a result,

the corporation was forced to cease business operations.

Effective

October

insolvent and the

10,

1991,

Numerica

was

FDIC was appointed receiver.

was closed on the same date.

The

declared

Homebank FSB

RTC was appointed receiver

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of

Homebank FSB.

entered

its capacity

Purchase

receiver, the

Homebank FSA, whereby essentially all of the assets and

some

Homebank

FSA.

of

Among

Homebank
the assets

Assumption

RTC
with

the liabilities

and

as

Agreement

of

into

In

FSB

were

transferred

transferred were

to

the St.

Hilaire

notes. The RTC was appointed conservator of Homebank

FSA.
In 1992,

the RTC as conservator of Homebank FSA brought

suit against the corporation

United

States District

seeking

collection of

complaint, St.
affirmative

Court

for

the

the notes.

Hilaire and

defenses.

that, if he were found

and against St. Hilaire

the

In

District

of

their answer

corporation raised

St. Hilaire

asked,

in the
Maine
to the
various

in particular,

personally liable on the note, he

be

allowed to set off any claims which he would have against the
Numerica
which

he

1821(d).

and Homebank as
had

a result of

already initiated

On October

23, 1992,

administrative claims

pursuant

to

the court

12

U.S.C.

granted summary

judgment to the RTC and found St. Hilaire personally liable.

On
initiated

October 5,

1992, St.

the instant

suit in

Hilaire
the

and the

corporation

United States

Court for the District of New Hampshire.

District

The complaint seeks

damages from the FDIC as receiver of Numerica and against the

RTC as conservator
covenant of good

of Homebank FSA for breach

faith and fair dealing; for

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of an implied
violation of a

joint

venture agreement; and for breach of an oral contract.

The RTC
that

as conservator

appellants

had

filed a
failed

motion to

to

file

administrative claims

process prior to

that, therefore, the

federal court was

to hear

the claim

pursuant to

dismiss alleging

claim

under

the

commencing suit

and

without jurisdiction

12 U.S.C.

1821(d)(13)(D).

The RTC also sought dismissal on the grounds of res judicata.

___ ________
The district court dismissed the entire case on the ground of
lack of jurisdiction.

It did

not address the issue

of res
___

judicata.
________
As the FDIC notes in
this Court in
FDIC advises
below.

motion,

this court
only

the

that it

should the

complaint

never moved
district

against the

First, the
for dismissal

court

FDIC

not

without

have
such a

see Greene v. Union Mut. Life Ins. Co., 764 F.2d 19,
___ ______
_______________________

21-22 (1st
not

a state of procedural confusion."

Not

dismissed

its brief, "[t]his appeal comes to

Cir. 1985), but

entitled

to such

the FDIC also admits

relief since

administrative claim with the FDIC.

hence is

properly before

that it is

appellants did

file an

The claim was denied and

the district court.

12

U.S.C.

1821(d)(6)(A).
Second, the
ground

on

which

RTC as
its

conservator now
motion

to

dismiss

concedes that

the

was granted

was

improper.

12 U.S.C.

1821(d)(13)(D) limits the jurisdiction

of federal courts to those

parties who have exhausted

their

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administrative
receiver.
________
relief only

Since

remedies as regards claims against the RTC as

___ __
appellants in the instant

against the RTC in its

the court erred in granting

case have sought

capacity as conservator,
__ ___________

dismissal for failure to exhaust

administrative remedies.1
The RTC now

asks this court to affirm

the alternate ground of res judicata.

___ ________
of res
___

judicata are
________

a final

the dismissal on

The essential elements

judgment on

the merits

in an

earlier action between identical parties or their privies and

an

identity of

suits.
1165

causes of

action in

the earlier

and later

See, e.g., Kale v. Combined Ins. Co., 924 F.2d 1161,

___ ___
____
_________________
(1st Cir),

cert. denied,
____ ______

112

S.Ct. 69

(1991).

The

decision by the United States

of

Maine is

clearly a

District Court of the District

final

judgment between

the RTC

as

conservator and the appellants.

However, we think it is
the res
___

judicata issue in
________

unwise to attempt to
the first instance.

addressed by the district court and

briefed
as to the

in this court.

determine
It

was not

has not been extensively

Accordingly, we vacate the dismissal

RTC without prejudice

to its right to

assert the

res judicata defense on remand in the district court.

___ ________
The order
against

the RTC

dismissing the
is vacated
_______

action against
and

the case

the FDIC

and

is remanded
________

for

____________________
1. Appellants do not appear to accept this concession since
they continue to argue that they in fact did exhaust their
administrative remedies.
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further proceedings.

No costs.

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