FDIC v. Barton ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-30926.
FEDERAL DEPOSIT INSURANCE CORPORATION, in its Corporate Capacity,
Plaintiff-Appellant,
v.
Gerald C. BARTON; Gerald G. Rothman; William W. Vaughan; Peter
R. Kirwin-Taylor; Gilbert I. Newman; Jack G. Golsen; Norman L.
Peck; Bernard Ille; Albert Reichmann; Joe W. Walser, Jr.; and
Joseph V. Olree, Defendants-Appellees.
Jan. 16, 1997.
Appeals from the United States District Court for the Eastern
District of Louisiana; Stanwood R. Duval, Jr., Judge.
ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC
(Opinion Sept. 26, 1996, 5th Cir.1996, 96 F.3d 128)
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member of this
panel nor judge in regular active service on the court having
requested that the court be polled on Rehearing En Banc (FRAP and
Local Rule 35), the Suggestion for Rehearing En Banc is also
DENIED.
We write further because of the FDIC's suggestion that our
opinion conflicts with an earlier opinion, Louisiana World
Exposition v. Federal Ins. Co., 858 F.2d 233 (5th Cir.1988). While
we did not discuss or cite this case in our opinion, we did take it
into consideration. Contrary to the FDIC's protestations, it is
not dispositive of the issues in this case. We found it
unpersuasive for several reasons.
The language in Louisiana World to which the FDIC makes
reference is dicta. The opinion discussed the question of whether
any one of the claims alleged by the plaintiff was sufficient to
state cause of action. In addition to a claim for breach of
fiduciary duty, there were claims for gross negligence and for
mismanagement. These claims were always discussed as one and not
apart from each other; the panel was not asked to define the
differences between them. This was because a finding on one would
be enough for the suit to go forward. In our opinion in this case,
however, we undertook a specific examination of the elements of a
cause of action for breach of fiduciary duty under Louisiana law.
Our opinion properly applied the relevant case law from our
court on this point of Louisiana law. As the opinions in Gerdes v.
Estate of Cush, 953 F.2d 201 (5th Cir.1992), and FDIC v. Duffy, 47
F.3d 146 (5th Cir.1995), show, an allegation of gross negligence is
insufficient to make out a claim for breach of fiduciary duty.
Because the FDIC did not allege fraud, self-dealing, or other
conduct beyond gross negligence in its complaint, it did not make
out a claim for breach of fiduciary duty. Accordingly, the
one-year prescriptive period applied. Moreover, the opinion in
Louisiana World had nothing at all to do with the critical question
of this case, the proper period of prescription for a claim
asserting gross negligence.