USCA1 Opinion

January 7, 1994

[Not for Publication]

[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 93-1552
ANN B. LOVELL, ETC.,
Plaintiff, Appellant,
v.
PEOPLES HERITAGE SAVINGS BANK, ET AL.,
Defendants, Appellees.
____________________
No. 93-1553
ANN B. LOVELL, ETC., ET AL.
Plaintiffs, Appellants
v.
THE ONE BANCORP, ET AL.
Defendants, Appellees
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________
Richard E. Poulos with whom John S. Campbell and
___________________
__________________

Poulos
______

Campbell, P.A. were on brief for appellants.

______________
Robert S. Frank with whom Christopher J. Devlin and Verrill
________________
______________________
_______
Dana were on brief for FDIC as receiver for Maine Savings Bank.
____
Rufus E. Brown with whom Drummond Woodsum Plimpton & MacMahon
______________
____________________________________
on brief for Frederick W. Pape, Jr.
John F. Batter, III with whom Hale and Dorr was on brief
_____________________
______________
Nancy Masterton, as personal representative of the Estate of Rob
Masterton.
Thomas D. Warren, Director, Litigation Unit, with whom Michael
________________
_______
Carpenter, Attorney General, and Peter J. Brann, Assistant Attor
_________
______________
General, were on brief for Maine Superintendent of Banking.
Catherine R. Connors with whom Ralph I. Lancaster, Jr., Daniel
____________________
_______________________ _______
Snow, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were
____
____________________________________________________
brief for Peoples Heritage Savings Bank.
____________________
____________________

Per Curiam.
___________

In

these

consolidated

plaintiffs-appellants argue that the district

summarily disposing of
to

a distribution

court erred in

their claims relating to

of the

net worth

of two

appeals,

their right

mutual savings

banks (MSBs) following the banks' conversion to stock savings

institutions.
Bank, 818
____

See generally Lovell v. Peoples Heritage Sav.

___ _________ ______
_____________________

F. Supp. 427 (D. Me. 1993); Lovell v. One Bancorp,

______
___________

818 F. Supp. 412 (D. Me. 1993).

We affirm.

Plaintiffs failed to
constitutionally-protected

come forward with proof

property

distribution of the surplus of

bulk of their
the

claims.

In

district court, the

held that Maine law does

interest

of a

in

the MSBs, the linchpin of the

answering questions certified

Maine Supreme Judicial

by

Court (SJC)

not give plaintiffs any right to

distribution of the surplus of MSBs as part of the conversion

process.

Lovell v. One Bancorp,

______
___________

Absent a state

property right, plaintiffs' plea

constitutional protection is in
Appeals,
_______

614 A.2d 56, 67 (Me. 1992).

811 F.2d

36, 43

vain.

(1st

for federal

Chongris v.
________

Board of
________

Cir.) ("[P]roperty

rights,

while protected by the federal Constitution, are creatures of

state law.")
408

U.S.

(citing, inter alia, Board of Regents v. Roth,

_____ ____ _________________
____

564, 577

(1972)),

Plaintiffs

argue

cert.
_____

denied, 483
______

U.S.

1021

(1987).
in

the

alternative

that

the

Constitution at least protects their contingent interest in a

-22

distribution

of

institutions.

the

"liquidation

These

opinion does support

Lovell,
______

614

67

--

not

that a

possibility.
correct in

As

solvent

distribution of a

expectancy deserving
Bancorp, 818
_______
Supp. at 431;

F. Supp.

did

liquidation

not

rise

at 420-21;

to

the

"unlikely event of a solvent

remote

may have been

level

protection.

of
See
___

Peoples Heritage, 818

________________

interest of mutual

undivided

very

interest in

cf. Society for Sav. v. Bowers,

___ ________________
______

in bank's

proof

is essentially

is

the contingent

constitutional

(1955) (observing that

depositor

bank's

produced trial-worthy

a result, the district court

accounts

depositors'

a solvent liquidation -- would ever

concluding that

liquidation

an interest,

(recognizing

a pro rata

new

While the SJC

In fact, as the record stands now, it

undisputed

150

at

plaintiffs have

that the contingency

occur.

of the former MSBs.

A.2d

the

repository of

plaintiffs' claim to such

contingent interest in
surplus),

of

accounts are the current

the reincarnated surplus

see
___

accounts"

the
an
One
___
F.

349 U.S. 143,

savings bank

earnings, contingent

on the

liquidation, . . . hardly rises

to the

level of an

basing the
expected
instead

expectancy").

Nonetheless,

rather than

availability of constitutional protection

value of

an alleged

property

on the

interest, we

focus

on the alternative reasoning offered by the district

court.

-33

Even

if

plaintiffs

could

prove

cognizable

property interest in the liquidation accounts, the undisputed

facts would
with

still

respect to

property
singularly

support summary
each

rights.
unable

alleged violation
Plaintiffs

to

judgment for

show

sufficient to support a claim

any

have

of

constitutional

proven

tangible

defendants

themselves

financial

under the Takings Clause,

Penn Cent. Transp. Co. v. New York City, 438 U.S.

_______________________
______________

harm
see
___

104, 124

(1978) (suggesting that proof of economic impact is essential

to show a

violation of the Takings Clause),

Clause, see General Motors Corp. v.

or the Contract

Romein, 112 S. Ct. 1105,

___ ____________________
1109

(1992)

contractual

(holding

relationship"

Contract Clause

any

violations

"substantial
is

impairment

an essential

of

component

of a

claim) (quoting Allied Structural Steel Co.

____________________________

v. Spannaus, 438 U.S.

________
serve

that

______

useful

234, 244 (1978)).

purpose

of procedural

with

due

Nor

would a trial

respect

to

the

alleged

process; it

is

a matter

of

record

that plaintiffs had notice of the proposed conversion

and an

opportunity to respond.

We agree with

the district

court that plaintiffs were "entitled to accurate, informative

notice,

not to

their

particular

information being disseminated."

characterizations of
One Bancorp, 818
___________

the

F. Supp.

at 426.
We likewise fail to see any merit in the allegation
that defendants violated

plaintiffs' substantive due process

-44

and

equal protection rights.

As explained

in the district

court's trenchant opinions below, there are entirely rational

reasons

for the transfer

liquidation accounts of

of the surplus of

the MSBs to the

the new stock institutions,

as the differing rights of account holders in

of an

MSB and policy

holders of a mutual

during an arguably analogous conversion.

as well

the conversion

insurance company
See
___

id. at 423-24;
___

Peoples Heritage, 818 F. Supp. at 431.

________________
We also agree
plaintiffs'
certified

state

claims

law

question,

procedurally

barred

following

with the
claims.

the

the

conversion by the state and

Act.

SJC

In
held

from pursuing

(1)

seek judicial review

district court

issuance

response
that

to

were

state common
a

certificate

62.

Plaintiffs' attempt

to have

modify Maine's highest court on

point of state

entirely unavailing.

district court is
the logic used
common law
well.

See
___

One Bancorp,
___________

are

818

Supp. at 431.

F. Supp.
As

procedurally barred,

inescapably appropriate.

this

Moreover,

the

concluding that

in deciding the viability

claims disposes of the state

Heritage, 818 F.
________
law claims

unquestionably correct in

by the SJC

of

Procedure

this court overrule or

law is

law

(2) the failure of plaintiffs to

under Maine's Administrative

Lovell, 614 A.2d at

______

another

plaintiffs

their
of

concerning

of the

statutory claims as
at 425-26;

Peoples
_______

all of plaintiffs' state

summary

judgment

was

-55

Accordingly,
are
Affirmed.
Affirmed.
_________

the judgments

of the

district court

-66