Free Objection - District Court of Connecticut - Connecticut

Case 3:00-cv-00835-CFD Document 558 Filed 07/18/2008 Paget of 4
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
INDYMAC BANK, F.S.B.,
: CIVIL ACTION NO.
Plaintiff, : 3:O0CV835(CFD)
MOSTAFA REYAD and WAFA REYAD,
: JULY 18, 2008
Defendants. :
PLAINTIFF’S OBJECTION TO DEFENDANTS’ MOTION
TO DECLARE PLAINTIFF’S DEATH AND STAY PROCEEDINGS
Plaintiff IndyMac Bank, F.S.B. ("IndyMac") hereby objects to Defendants Mostafa
Reyad and Wafa Reyad’s Motion to Declare Plaintiffs Death and Stay All Proceedings
dated July 14, 2008 (doc. # 556) seeking a declaration by this Court that IndyMac "has
died" and requesting that all proceedings be stayed pending substitution of a new
plaintiff. Defendants’ latest motion is factually incorrect, without legal basis, and should
be denied summarily.
On July 11, 2008, the Office of Thrift Supervision appointed the FDIC as
Receiver for IndyMac Bank, F.S.B., transferred all of the insured deposits and
substantially all of the assets of IndyMac Bank F.S.B. to a newly created institution,
IndyMac Federal Bank, F.S.B., and appointed the FDIC as Conservator of the new
IndyMac Federal Bank, F.S.B. E July 11, 2008 Order No. 2008-24 of Office of Thrift '
Supervision, attached hereto as Exhibit A, at 4. As part of this directive, the FDIC as l
Receiver for IndyI\/lac Bank, F.S.B., the FDIC, and the FDIC as Conservator for the new »
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Case 3:00-cv-00835-CFD Document 558 Filed 07/18/2008 Page 2 of 4
lndyMac Federal Bank, F.S.B. entered into a Purchase and Assumption Agreement
dated July 11, 2008, attached hereto as Exhibit B, pursuant to which the new lndyl\/lac
Federal Bank, F.S.B. acquired, inter alia, all legal and equitable interest in receivables
of IndylVlac Bank, F.S.B., including the claims against the Defendants brought by
lndyMac Bank, F.S.B. in the instant litigation. g Exhibit B, Section 3.1(k), at 13.
Thus, lndylVlac Bank, F.S.B. has not "died” in any sense ofthe word.
Defendants’ reliance upon Fed. R. Civ. P. 25(a) is completely misplaced in any event,
as "Rule 25(a) clearly refers to the death of a natural person and does not apply when a
corporation dissolves? Unison Realty Corp. v. RKO Theatres, Inc., 35 F.R.D. 232, 234
S.D.N.Y. 1964).1 Rather, Rule 25(c), which applies in the case of a transfer of interest
which occurs during the pendency of the action, g, provides that "the action may be
continued by or against the original party, unless the court upon motion directs the g

person to whom the interest is transferred to be substituted in the action orjoined with
the original party." Fed. R. Civ. P. 25(c). Such substitution is not required unless the {
court determines, in its discretion, that the transferee’s presence would facilitate the
case. 6 James Wm. Moore, Moore’s Federal Practice (3d ed 2008) Tl 25.34[2] at 25-52;
Luxliner P.L. Export Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993) (Rule 25(c) T
permits automatic continuation of a lawsuit with original corporate party). Thus, in the
absence of a motion to substitute, the case may continue without a change in the
parties. lV|oore’s Federal Practice il 25.34[2] at 25-52; American Centennial lns. Co. v.
Aseguradora lnterracctiones S.A., 96 Civ. 4062 (JFK), 1987 U.S. Dist Lexis 19101, at *
11 (Dec. 1. 1997 S.D.N.Y.) (denying motion to dismiss action because although original
1 Thus, the requirement in Rule 25(a) that a motion for substitution be made not later
than 90 days after death is inapplicable.

Case 3:00-cv-00835-CFD Document 558 Filed 07/18/2008 Page 3 of 4
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plaintiff had assigned its interest in the contracts at issue in the action to a third party,
Rule 25(c) "expressly permits [the original plaintiff] to either continue its prosecution of
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this action, orjoin or substitute the [transferee] in this actlon"); Unison Realty Corp., 35
F.R.D. at 233 (concluding that action could be continued by original corporate parties
despite assignment of claims when there had been no motion for substitution).
Accordingly, there is no requirement that a party be substituted for IndyMac
Bank, F.S.B. at this time, and there is no need to stay these proceedings. For these
reasons, Defendants’ Motion to Declare Plaintiffs Death and Stay All Proceedings
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should be denied.
INDYMAC BANK, F.S.B.
Byr
David R. Sc aefer (ct04334)
Rowena A. Moffett (0*:19811) ’
. BRENNER, SALTZMAN & WALLMAN LLP
271 Whitney Avenue
New Haven, CT 06511
Juris No. 06063 f
Tel. (203) 772-2600 .
Fax: (203) 562-2098
Email: dschaefer bswlaw.com
Email: rmoffetl; bswlaw.com l
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Gase 3:00-cv-00835-GFD Document 558 Filed 07/18/2008 Page 4 of 4
cERTu=icATE or sERvicE
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This is to certify that a true and accurate copy of the foregoing was served via
United States first-class mail, postage prepaid, this 18th day of July, 2008 to all counsel
and pro se parties of record as follows:
l\/lostafa Reyad
92 Aristotle Way l
Granbury, NJ 08512-2550
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Wafa Reyad
92 Aristotle Way l
Granbury, NJ 08512-2550 I
Rowena A. Moffett
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