The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
MEMORANDUM ORDER AND DECISION
Pending before the Court in the above-entitled matter is Plaintiff Federal Deposit Insurance Corporation's (FDIC), acting as receiver for America West Bank, L.C., Motion for Partial Summary Judgment. (Dkt. 17.) The motion is made pursuant to Federal Rule of Civil Procedure 56. The matter is ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately represented in the briefs and record. Accordingly, and in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this motion shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
The complaint in this action seeks a deficiency judgment and foreclosure on a mortgage securing a promissory note. On October 2, 2007, Defendant Fox Creek Holding, L.L.C. (Fox Creek) entered into a Promissory Note (Note) with the Plaintiff America West Bank, L.C. (AWB) that authorized a principal of up to $3,500,000 dollars with a 9% interest rate per annum. (Second Amended Compl. at ¶ 23, Dkt. 1-26.) The Note was secured by two mortgages, one on the Teton County Property and another on the Bonneville County Property. Id. at ¶ 15-16. Fox Creek's obligation was due in one payment on November 5, 2008. Id. at Ex A, 1. Plaintiff alleges that the total amount due under the Note is $3,402,935.29 together with accruing interest from September 5, 2008 to January 12, 2009 in the sum of $100,599.70 ($779.8393 per diem), for a total of $3,503,535.56. Id. at ¶ 27. The Plaintiff alleges that they have made a demand for payment and that Defendant has failed to make payment. Id. at ¶ 24.
The complaint in this action was filed on January 22, 2009 in the District Court for the Seventh Judicial District of the State of Idaho, in and for the County of Teton. The complaint names as Defendants Fox Creek, Rocky Mountain Environmental Associates, Inc. and L.L.C.*fn1, Ridgeway Holdings, L.L.C., the estate of George Z. McDaniel, Herbert C. Paschen*fn2 and John Does 1-10. On May 1, 2009 the FDIC was appointed receiver for AWB. (Statement of Material Facts in Supp. of Mot. for Partial Summ. J. at 12, Dkt. 19.) On July 1, 2009 the FDIC was substituted as a plaintiff as receiver for AWB. Id. at 5. On September 24, 2009 FDIC filed for removal to this court pursuant to 28 U.S.C. 1441 and 12 U.S.C. 1815.
On January 15, 2010 FDIC filed their Partial Motion for Summary Judgment with respect to Defendant Fox Creek. (Pl.'s Mem. in Supp. of Mot. for Partial Summ. J., Dkt. 18.) On February 8, 2010 Defendants Ridgeway Holdings, L.L.C. and the estate of George Z. McDaniels filed a Notice of No Opposition to FDIC's Motion for Partial Summary Judgment. (Notice of No Opp'n to FDIC's Mot. for Partial Summ. J., Dkt. 22.) As a result, Fox Creek is the sole defendant for the purposes of this motion.
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith 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 judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See, Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential element, "there can be no 'genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.*fn3
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute... to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. V. San Francisco Automotive Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the factual context makes the non-moving party's claim implausible.
Id. at 374 (citation omitted).
Of course, when applying the above standard, the court must view all of the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992).
Generally, judgment entered on fewer than all claims in an action will not result in the termination of an action for those claims. Fed. R. Civ. P. 54(b). However:
When an action presents more than one claim for relief -- whether as a claim, counterclaim, cross-claim, or third-party claim -- or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only ...