REYNALDO G. GARZA, Circuit Judge:
The Federal Deposit Insurance Corporation appeals from a summary judgment in favor of Appellees. For the reason stated below, we AFFIRM the decision of the district court.
The Federal Deposit Insurance Corporation ("FDIC") appeals from the district court's dismissal of its suit against the former directors ("the Directors") of Oak Tree Savings Bank ("Oak Tree"). The Resolution Trust Corporation ("RTC")
Before its failure in 1991, Oak Tree was Louisiana's largest thrift. The Directors served on Oak Tree's board when it approved the four loans and one land purchase that are the subject of this lawsuit. The Directors approved the first of those transactions in 1984, and the last of them in 1989. The FDIC alleges that Oak Tree lost over $200 million on those transactions and that the transactions occurred because the Directors were grossly negligent. The FDIC also alleges that the Directors breached their fiduciary duty to Oak Tree by being grossly negligent.
On October 13, 1991, the Office of Thrift Supervision ("OTS") closed Oak Tree and appointed the RTC as its receiver. Three years later, on October 12, 1994, the RTC filed its original complaint against the Directors, alleging that they were grossly negligent in approving five transactions between 1984 and 1989. The RTC later amended its complaint to allege that the Directors breached their fiduciary duty to Oak Tree by being grossly negligent. The Directors moved to dismiss the action on the ground of liberative prescription.
In deciding the Directors' motion to dismiss, the district court had to decide several issues. First, it had to decide which statute of prescription applied. The Directors argued that Louisiana Revised Statutes Section 6:787, which was enacted after the RTC was appointed receiver, applied. In the alternative, the Directors argued that the one-year prescriptive period for delictual actions applied. In response, the FDIC contended that the ten-year prescriptive period for personal actions applied. For reasons that will be discussed below, the district court held that the one-year prescriptive period applied.
Next, the district court had to decide whether the doctrine of contra non valentem agere nulla currit applied to suspend prescription. The district court held that the doctrine tolled prescription during the period that the Directors' domination of Oak Tree's board prevented Oak Tree from suing them. However, the district court found that prescription ceased to be tolled as early as September 11, 1990, when the OTS had the power to appoint a receiver but chose instead to enter into a Supervisory Agreement with the institution. Because the prescriptive period
The district court held that the FDIC's claims against the Directors were barred by prescription. The FDIC appeals from this holding, arguing that: (1) the claims were not prescribed because Louisiana's ten year prescriptive period for personal actions applied; and (2) alternatively, assuming that Louisiana's one year prescriptive period applied, prescription was tolled by the doctrine of contra non valentem agere nulla currit. The Directors counter by arguing that the FDIC's claims were prescribed by either Louisiana's one-year prescriptive period for delictual actions, or by Louisiana Revised Statutes Section 6:787, a statute that applies special prescriptive and peremptive periods in suits against savings and loan officers and directors. The Directors also contend that contra non valentem does not apply in this case. For the reasons stated below, we hold the FDIC's claims are barred by prescription.
We first turn to the question of whether Louisiana Revised Statutes Section 6:787 applies to the FDIC's claims. Section 6:787 provides a one-year prescriptive period and a three-year peremptive period in suits against savings and loan officers and directors.
We hold that Section 6:787 does not apply in this case because the RTC was appointed receiver eight months before the section was enacted. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") provides a federal statute of limitations for claims brought by the RTC as receiver.
In this case, the applicable statute of prescription in effect on October 13, 1991 (the date upon which the RTC was appointed receiver) was set out in Louisiana Civil Code Article 3492.
The Directors contend that this Court should apply Section 6:787 retroactively, and use it to determine whether Oak Tree's claims were time-barred at the time the RTC was appointed receiver. The Directors' argument is premised upon the Act that enacted Section 6:787, which provided that "[t]he provisions of this Act shall be applied both retrospectively and prospectively...."
The purpose of FIRREA's preemption of state statutes of limitations is to give the RTC three years from the date upon which it is appointed receiver to decide whether to bring any causes of action held by a failed savings and loan. This three-year period allows the RTC to investigate and determine what causes of action it should bring on behalf of a failed institution. Allowing a state statute enacted after the RTC was appointed receiver to take a claim away from the institution is inconsistent with this purpose. We therefore hold that, in determining whether an institution held a viable claim at the time the RTC was appointed receiver, courts must look to the law in effect at the time of appointment.
We now turn to the question of whether Louisiana Civil Code Article 3499 or Article 3492 provides the applicable prescriptive period in this case. Article 3499 provides a ten-year prescriptive period in personal actions, including actions for breach of fiduciary duty. Article 3492 provides a one-year prescriptive periods for delictual actions, including actions for gross negligence. Because this case merely involves allegations of gross negligence, rather than fraud or self dealing, we hold that it is a delictual action subject to Article 3492's one-year prescriptive period.
The FDIC argues that its claims against the directors are personal because they involve a breach of fiduciary duty. Louisiana Revised Statutes Section 6:291 imposes a fiduciary duty upon the Directors. That fiduciary duty is the only duty that the Directors owed Oak Tree, the FDIC argues, and the standard to which the Directors are held under that duty is gross negligence. Because the duty is a fiduciary one, the FDIC contends, an action for the breach of that duty is personal, and is subject to Article 3499's ten-year prescriptive period. We reject this argument.
As mandataries, the Directors owed two types of duties to Oak Tree: a fiduciary duty and a duty of care.
In this case, the FDIC has only alleged a breach of the duty of care. To set out a claim for the breach of fiduciary duty, the FDIC would have to have alleged the failure of good faith and loyalty by the Directors.
The FDIC contends that prescription was tolled by the doctrine of contra non valentem agere nulla currit.
The district court held that the second category — some condition coupled with the contract or connected with the proceedings that prevented the creditor from suing or acting — applied, and that the other categories did not apply. The FDIC contends that the third category — the debtor himself has done some act effectively to prevent the creditor from availing himself of his cause of action — also applies. The Directors argue that neither category applies.
We first turn to the question of whether the second category applies. The district court held that it applied because Oak Tree was unable to bring suit because it could only act through the Directors, who could hardly be expected to sue themselves. We disagree. Oak Tree's shareholders could have brought a shareholders' derivative suit against the Directors.
The third category does not apply either. The third category only applies when there is evidence of fraud, deceit, misrepresentation or concealment by the defendants that led to the plaintiff's failure to file the claim within the statutory period.
Because this case does not fall into any of the four categories of situations in which contra non valentem tolls prescription, we hold that the district court erred in applying the doctrine to toll the FDIC's claims.
We AFFIRM the district court's grant of summary judgment for the Directors. The FDIC's claims are based on alleged gross negligence that occurred in the 1980's. These claims are subject to a one year prescriptive period, and were not tolled by the doctrine of contra non valentem agere nulla currit. Therefore, they were prescribed at the time the RTC was appointed receiver in 1991, and summary judgment for the Directors on the ground of prescription was proper.