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RESOLUTION TRUST CORP. v. GARDNER

March 25, 1992

The Resolution Trust Corporation, Plaintiff,
v.
Michael R. Gardner, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

MEMORANDUM OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 Before the Court is the defendant's Motion to Dismiss those claims in Counts I, II, and III of the Complaint that arise from transactions which occurred in 1985 as barred by the applicable statute of limitations, and to dismiss Count II in its entirety for failure to state a claim upon which relief may be granted. The Court has carefully considered the submissions of the parties, the arguments of counsel, the applicable law, and the entire record herein. For the reasons set forth below, the Court shall deny the defendant's motion to dismiss.

 I. Background

 The Resolution Trust Corporation ("RTC"), in its corporate capacity, brings this action against the defendant, an attorney who, it is alleged, received improper payments from Lincoln Savings & Loan Association ("Old Lincoln") and its subsidiary, Lincoln Communications ("LinCom"), at the direction of Charles H. Keating, Jr. In particular, the RTC points to seven payments between May 3, 1985 and December 4, 1986, which total $ 1.5 million. *fn1" Complaint at 4-5. The RTC alleges that the defendant received these payments independently from the payments received for legal services by the law firm at which he was a partner, and that neither the defendant personally, nor his professional corporation "performed any services for Old Lincoln or LinCom warranting these fees". Complaint P12. The plaintiff asserts claims of unjust enrichment (Count I), breach of fiduciary duty (Count II), and aiding and abetting breach of fiduciary duty (Count III).

 The defendant argues that the statute of limitations has expired on all claims arising from the 1985 payments (which total one million dollars). In addition, the defendant argues that Count II, the breach of fiduciary duty claim, should be dismissed in its entirety for failure to allege the elements of a cause of action under District of Columbia law.

 II. Analysis

 A motion to dismiss may be granted only when the moving party has shown "beyond doubt that the plaintiff can prove no set of facts in support of (its) claim which would entitle (it) to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Moreover, a complaint must be liberally construed, granting the complainant "the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 199 App. D.C. 23, 617 F.2d 605, 608 (D.C. Cir. 1979) (quoting Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969)). A claim will not be dismissed under Fed. R. 12(b)(6) merely because it does not allege with specificity every element of a cause of action, if it contains allegations from which an inference may be drawn that evidence on the essential elements will be produced. St. Joseph's Hospital, Inc. v. Hospital Corporation of America, 795 F.2d 948, 954 (11th Cir. 1986), citing C. Wright and A. Miller, Federal practice and Procedure: Civil § 1216, at 604.

 A. Statute of Limitations

 (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.

 12 U.S.C. § 1821(d)(14)(A). A cause of action "accrues" within the meaning of the statute as follows:

 For purposes of subparagraph (A), the date on which the statute of limitation begins to run on any claim described in such ...


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