Kimberly Benson, et al v. JPMorgan Chase Bank, N.A.

Filing

FILED OPINION (CARLOS F. LUCERO, CONSUELO M. CALLAHAN and N. RANDY SMITH) AFFIRMED. Judge: CFL Authoring. FILED AND ENTERED JUDGMENT. [8109565] [10-17402, 10-17404]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY BENSON; KARIMDAD
BALOCH; and NEERJA JAIN
GURSAHANEY, individually and on
behalf of all others similarly
situated,
Plaintiffs-Appellants,
v.
JPMORGAN CHASE BANK, N.A.,
individually and as successor in
interest of Washington Mutual,
Inc.,
Defendant-Appellee.

JOHN ALEXANDER LOWELL,
individually and on behalf of all
others similarly situated,
Plaintiff-Appellant,
v.
JPMORGAN CHASE BANK, N.A.,
individually and as successor in
interest of Washington Mutual,
Inc.,
Defendant-Appellee.

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No. 10-17402
D.C. No.
3:09-cv-05272-MEJ





No. 10-17404
D.C. No.
3:09-cv-05560-MEJ
OPINION

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BENSON v. JPMORGAN CHASE BANK

Appeal from the United States District Court
For the Northern District of California
Maria-Elena James, Chief Magistrate Judge, Presiding
Argued and Submitted
December 6, 2011—San Francisco, California
Filed March 20, 2012
Before: Carlos F. Lucero,* Consuelo M. Callahan, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Lucero

*The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.

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COUNSEL
Niall P. McCarthy, Cotchett, Pitre & McCarthy, LLP, Burlingame, California (Anne Marie Murphy and Aron K. Liang,
Cotchett, Pitre & McCarthy, LLP, Burlingame, California,
and Derek G. Howard and Bethany Caracuzzo, Minami
Tamaki LLP, San Francisco, California, with him on the
briefs), for the plaintiffs-appellants.
Robert A. Sacks (Stacey R. Friedman and M. David Possick
with him on the briefs), Sullivan & Cromwell LLP, Los
Angeles, California, for the defendant-appellee.

OPINION
LUCERO, Circuit Judge:
Plaintiffs, a group of investors defrauded by the “Millennium Ponzi scheme,” seek recourse against JPMorgan Chase
Bank N.A. (“JPMorgan”). They allege that Washington
Mutual, Inc. (“WaMu”) aided and abetted the Ponzi scheme
by providing banking services to several companies controlled by the scheme’s principals despite actual knowledge of
the fraud. JPMorgan, they argue, is liable as successor in
interest of WaMu, having purchased most of WaMu’s assets
and liabilities from the Federal Deposit Insurance Corporation
(“FDIC”). The FDIC had taken WaMu into receivership pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Pub. L. No. 101-73, 103 Stat. 183
(“FIRREA”). Plaintiffs further claim JPMorgan is liable
because it continued WaMu’s problematic practices following
assumption.
The district court dismissed plaintiffs’ complaints for failure to exhaust FIRREA’s administrative remedies. See 12
U.S.C. § 1821(d)(13)(D)(ii) (barring “any claim relating to

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any act or omission of [a failed bank] or the [FDIC] as receiver” unless such claim is first presented to the FDIC). Plaintiffs
contend, however, that FIRREA’s jurisdictional bar is limited
to claims against a failed bank or the FDIC and thus has no
application to claims asserted against a purchasing bank with
assets that passed through FDIC receivership. They further
argue that portions of their claims are based on JPMorgan’s
independent, post-purchase conduct, which is not governed by
FIRREA.
We reject plaintiffs’ first contention. Litigants cannot avoid
FIRREA’s administrative requirements through strategic
pleading. Accordingly, we join three other circuits in concluding that a claim asserted against a purchasing bank based on
the conduct of a failed bank must be exhausted under FIRREA. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1144
(D.C. Cir. 2011); Village of Oakwood v. State Bank & Trust
Co., 539 F.3d 373, 386 (6th Cir. 2008); Am. First Fed., Inc.
v. Lake Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th Cir.
1999).
The same is not true, however, with respect to claims based
on a purchasing bank’s post-purchase actions. Such claims are
not governed by FIRREA. They could not, and accordingly
need not, be exhausted before the FDIC. See Henderson v.
Bank of New England, 986 F.2d 319, 321 (9th Cir. 1993)
(FIRREA applies only to claims that are “susceptible of resolution through the claims procedure”).
Although we agree with plaintiffs’ legal argument on this
score, we conclude it has no application to the case at bar.
Plaintiffs did not adequately plead a claim based on JPMorgan’s independent conduct; they relied instead solely on conclusory allegations. The district court’s dismissal of plaintiffs’
claims, along with its subsequent denial of plaintiffs’ Federal
Rule of Civil Procedure 60(b) motion, was therefore proper.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

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I
A
We draw the following facts from plaintiffs’ complaints.1
In 1999, Canadian attorney William J. Wise initiated the Millennium Ponzi scheme. Wise formed the Millennium Bank
and Trust Company, later renamed the Millennium Bank, in
St. Vincent and the Grenadines. He began selling what he
claimed were high-yield Certificates of Deposit (“CDs”)
issued by subsidiaries of the United Trust of Switzerland S.A.
In fact, the CDs sold by Wise and his associates were fraudulent, the Millennium Bank was not affiliated with any Swiss
banking company, and the company was not licensed to sell
securities. The Millennium Bank originally obtained financial
services from several banks in North Carolina, but those institutions closed Wise’s accounts due to suspicious activity.
In July 2004, Wise and two of his associates, Jacqueline
and Kristi Hoegel, formed three Nevada business entities with
names similar to United Trust of Switzerland: UT of S, LLC;
United T of S, LLC; and Sterling I.S., LLC (collectively, the
“Nevada LLCs”). The Hoegels used these entities to operate
the banking side of the scheme from Napa, California. They
would regularly deposit large checks in bulk at the Napa
WaMu branch and immediately wire large sums to “known
banking and tax havens.” Most checks that the Hoegels
deposited had handwritten notations that indicated they were
tendered in exchange for CDs. However, based on paperwork
submitted at the time the accounts for the Nevada LLCs were
opened, WaMu was aware that the companies were not
licensed to sell securities in the United States.
Two WaMu employees provided substantial assistance to
1

“In reviewing [a] Rule 12(b)(1) dismissal, we must accept all factual
allegations in the complaint as true.” Carson Harbor Village, Ltd. v. City
of Carson, 353 F.3d 824, 826 (9th Cir. 2004).

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the Hoegels: branch manager Tamara Miller and commercial
banking officer Bianca Greeves. Greeves recommended in
February 2008 that the Nevada LLCs install a “cash management transfer” (“CMT”) system at the Nevada LLCs’ office.
CMT systems, which allow outgoing wire transfers to be sent
without the direct assistance of bank staff, are usually provided to large institutions with multinational operations.
Before providing the CMT system, WaMu was required to
conduct a detailed audit. Jennifer Blevins, a Business Treasury Services Senior Specialist for WaMu, approved the use
of a CMT system for the Nevada LLCs after investigating the
nature of their business, their financial strength, the number
of their employees, and the amount of money coming in and
out of their accounts each month. In September 2008, Greeves
further recommended that the Nevada LLCs obtain a “remote
deposit capture” (“RDC”) system, which allows companies to
scan and deposit checks without presenting them to a bank.
Installing this system required a second and more detailed
audit, which was again conducted by Blevins.
On September 22, 2008, the Federal Deposit Insurance
Company (“FDIC”) seized WaMu pursuant to its authority
under FIRREA. Three days later, JPMorgan acquired most of
WaMu’s assets and liabilities under a purchase and assumption agreement with the FDIC.
The Millennium Ponzi scheme came to an end several
months later. On March 25, 2009, the Securities and
Exchange Commission filed an action against Wise. It alleged
that Wise, the Hoegels, and their associates had raised at least
$68 million by selling fraudulent CDs. A receiver took control
of the Nevada LLCs’ assets and those of the Millennium
Ponzi scheme principals. All suits against those individuals
and entities were enjoined.
B
In November 2009, two similar complaints involving the
Millennium Ponzi scheme were filed against JPMorgan. The

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first was filed by Kimberly Benson, Karimdad Baloch, and
Neerja Gursahaney, and the second by John Lowell. The first
set of plaintiffs purchased what they believed were CDs from
the Nevada LLCs between May 2006 and August 2008. Lowell did not state when he purchased fraudulent CDs. Both
complaints asserted claims for aiding and abetting fraud, aiding and abetting conversion, and violating California banking
law. The complaint by Benson, Baloch, and Gursahaney also
asserted claims for aiding and abetting breach of fiduciary
duty, and conspiracy to commit fraud and conversion. Both
complaints sought certification of a class of similarly situated
victims of the Millennium Ponzi scheme. The two cases were
consolidated below.
The district court dismissed the conspiracy claims on
JPMorgan’s Federal Rule of Civil Procedure 12(b)(6) motion,
but denied that motion as to plaintiffs’ remaining claims.
JPMorgan then filed a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1), arguing that the district court
lacked jurisdiction because plaintiffs had not exhausted
administrative remedies under FIRREA. The district court
granted that motion and ordered the clerk of the court to
“close the file” for the case. No separate judgment was
entered.
Plaintiffs then filed a Rule 60(b) motion seeking reconsideration of the district court’s order and an opportunity to
amend their complaints. They argued that even if their claims
based on WaMu’s conduct could be dismissed, the complaints
alleged independent misconduct on the part of JPMorgan.
Although the complaints do not detail any specific actions
taken by JPMorgan, an introductory paragraph states that
despite actual knowledge of the Millennium Ponzi scheme,
“[WaMu] continued to provide substantial assistance to
Wise’s illegal enterprise and promoted the continued success
of that enterprise for a period in excess of four years” and that
“[t]hese practices continued after JPMorgan acquired [WaMu]

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in September of 2008.” The district court denied reconsideration.
II
We review de novo a district court’s dismissal under Rule
12(b)(1). Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156
(9th Cir. 2007). “For the purposes of reviewing such dismissals, and where, as here, no evidentiary hearing has been held,
all facts alleged in the complaint are presumed to be true.” Id.
(quotation and alterations omitted).
A district court’s denial of a Rule 60(b) motion is reviewed
for abuse of discretion. Latshaw v. Trainer Wortham & Co.,
452 F.3d 1097, 1100 (9th Cir. 2006). “Whether such a denial
rests on an inaccurate view of the law and is therefore an
abuse of discretion requires us to review the underlying legal
determination de novo.” Smith v. Pac. Props. & Dev. Corp.,
358 F.3d 1097, 1100 (9th Cir. 2004) (citation and italicization
omitted).
III
[1] Following the savings and loan crisis of the 1980s,
Congress passed FIRREA “ ‘to give the FDIC power to take
all actions necessary to resolve the problems posed by a financial institution in default.’ ” Sahni v. Am. Diversified Partners, 83 F.3d 1054, 1058 (9th Cir. 1996) (quoting H.R. Rep.
No. 101-54(I), at 330 (1989), reprinted in 1989 U.S.C.C.A.N.
86, 126). The statute grants the FDIC authority to “act as
receiver or conservator of a failed institution for the protection of depositors and creditors.” Sharpe v. FDIC, 126 F.3d
1147, 1154 (9th Cir. 1997). It provides detailed procedures to
allow the FDIC to consider certain claims against the receivership estate, see 12 U.S.C. § 1821(d)(3)-(10), “to ensure that
the assets of a failed institution are distributed fairly and
promptly among those with valid claims against the institution, and to expeditiously wind up the affairs of failed banks,”

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McCarthy v. FDIC, 348 F.3d 1075, 1079 (9th Cir. 2003)
(quotation omitted).
[2] FIRREA requires that a plaintiff exhaust these administrative remedies with the FDIC before filing certain claims.
Henderson v. Bank of New England, 986 F.2d 319, 321 (9th
Cir. 1993). The statute provides:
Limitation on judicial review. Except as otherwise
provided in this subsection, no court shall have jurisdiction over—
(i) any claim or action for payment from, or any
action seeking a determination of rights with respect
to, the assets of any depository institution for which
the [FDIC] has been appointed receiver, including
assets which the [FDIC] may acquire from itself as
such receiver; or
(ii) any claim relating to any act or omission of such
institution or the [FDIC] as receiver.
§ 1821(d)(13)(D).
The district court dismissed plaintiffs’ claims under
§ 1821(d)(13)(D)(ii), holding that the claims related to acts or
omissions of WaMu and had not been presented to the FDIC.
Plaintiffs argue the district court erred in construing FIRREA
to preclude their claim against JPMorgan as WaMu’s successor in interest. They argue the jurisdictional bar does not
apply to claims asserted against third-party purchasing banks
such as JPMorgan. In the alternative, plaintiffs contend that
portions of their claims were based on JPMorgan’s own, postpurchase misconduct and were thus not related to the acts or
omissions of WaMu. Finally, they argue that the district court
improperly dismissed their complaint without allowing them
leave to amend.

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A
[3] Plaintiffs’ assertion that FIRREA’s jurisdictional bar
does not apply to purchasing institutions is undermined by the
plain text of § 1821(d)(13)(D)(ii). That provision distinguishes claims on their factual bases rather than on the identity of the defendant: It asks whether claims “relate to any act
of omission” of a failed institution or the FDIC. Notably, the
provision does not make any distinction based on the identity
of the party from whom relief is sought.
In their uphill argument against the statutory text, plaintiffs
rely heavily on Henrichs v. Valley View Development, 474
F.3d 609 (9th Cir. 2007), in which this court stated that FIRREA’s “requirement to exhaust administrative remedies
applies only in an action against the FDIC as receiver.” Id. at
614. In context, however, it is clear that Henrichs discussed
only the first prong of FIRREA’s jurisdictional bar contained
in § 1821(d)(13)(D)(i).
The Henrichs case concerned a collateral attack on a statecourt judgment quieting title in a parcel of land that had
passed through FDIC receivership. A plaintiff argued that
FIRREA vests exclusive federal jurisdiction over any dispute
regarding property once held by the FDIC as a receiver. See
Henrichs, 474 F.3d at 613. The Henrichs plaintiff cited to 12
U.S.C. § 1821(j), which bars any court from “restrain[ing] or
affect[ing] the exercise of powers or functions of the [FDIC]
as a conservator or a receiver,” and to § 1821(d)(13)(D). We
rejected reliance on § 1821(j), holding that a state-court quiet
title action brought by the purchasers of property once held in
receivership did not restrain or affect the FDIC, which had
relinquished any interest in the parcel at the time of suit. Henrichs, 474 F.3d at 614.
As to § 1821(d)(13)(D), we expressed some confusion as to
the nature of the plaintiff ’s argument. “If, by citing this provision, [the plaintiff] means to imply that the statute bars the

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state court’s adjudication of the dispute with [the property
owner], he is mistaken.” Henrichs, 474 F.3d at 614. We concluded that § 1821(d)(13)(D) does not “confer exclusive federal jurisdiction.” Henrichs, 474 F.3d at 614. The court
further stated that “the requirement to exhaust administrative
remedies applies only in an action against the FDIC as receiver.” Id.
Although the court cited § 1821(d)(13)(D) without specifying a subsection, context establishes that the above-quoted
statement concerned only subsection (i), which requires
exhaustion of administrative remedies for “any action seeking
a determination of rights with respect to[ ] the assets of any
depository institution for which the [FDIC] has been
appointed receiver.” The court described only the first prong
of § 1821(d)(13)(D), which “states that individuals seeking to
make claims that affect assets acquired by the FDIC in its
capacity as a conservator or receiver must exhaust the FDIC’s
administrative claims process before seeking judicial review.”
Henrichs, 474 F.3d at 614. The quiet title action at issue in
Henrichs arguably qualified under this prong as one “seeking
the determination of rights” as to an asset formerly held by
the FDIC as receiver for a failed bank. In contrast, nothing in
Henrichs suggests that the quiet title action could have been
related to the acts or omissions of a failed bank or the FDIC
—the subjects of subsection (ii).2
Because Henrichs did not consider subsection (ii), the provision at issue in this case, it does not control our analysis.3
2

Plaintiff in Henrichs also advanced a breach of contract claim against
the FDIC, but that claim was dismissed as moot. 474 F.3d at 615. The
court did not discuss FIRREA’s application to the contract claim, and the
court did not note any “act or omission” of the failed bank, see
§ 1821(d)(13)(D)(ii), in relation to the attack on the quiet title judgment.
3
The same is true of an out-of-circuit case plaintiffs cite along with
Henrichs. In FDIC v. McFarland, 243 F.3d 876 (5th Cir. 2001), the court
held that the “claim procedures articulated in [FIRREA] are predicated on

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We are similarly unpersuaded by plaintiffs’ citation to other
Ninth Circuit authority. Plaintiffs focus on a statement in
McCarthy indicating that FIRREA’s jurisdictional bar applies
to claimants “who challenge conduct by the FDIC as receiver.” 348 F.3d at 1081. But the McCarthy court did not hold
that only such claims are covered. To the contrary, McCarthy
recognized that “FIRREA’s exhaustion requirement applies to
any claim or action respecting the assets of a failed institution
for which the FDIC is receiver.” Id. Furthermore, McCarthy
plainly did not deal with the statutory subsection at issue here:
the jurisdictional bar on claims “relating to any act or omission” of a failed bank. § 1821(d)(13)(D)(ii).
By the same token, Henderson, 986 F.2d 319, does not
excuse exhaustion in this case. We explained in Henderson
that FIRREA “bars judicial review of any non-exhausted
claim, monetary or nonmonetary, which is susceptible of resolution through the claims procedure.” Id. at 321 (quotation
omitted). Although plaintiffs assert that their claims are not
currently susceptible to the claims process, plaintiffs give us
no reason to believe that FIRREA exhaustion would have
been futile had they submitted them within the appropriate
time frame. Further, to the extent plaintiffs assert they currently lack a remedy, that result can only be attributed to their
failure to exhaust. Cf. Bueford v. Resolution Trust Corp., 991
the FDIC’s possession of the property in question. When the FDIC relinquishes ownership, the procedures governing its role as a receiver no longer apply to the property.” Id. at 887 n.42. But McFarland did not
consider whether § 1821(d)(13)(D)(ii) extends to claims against parties
other than a failed bank or the FDIC. The court briefly discussed
§ 1821(d)(13)(D), which was raised for the first time during oral argument, in rejecting a contention that FIRREA barred adjudication of a lien
seniority dispute involving an assignee of the FDIC. McFarland, 243 F.3d
at 887 n.42. As in Henrichs, the McFarland court did not distinguish
between the subsections of FIRREA’s jurisdictional bar, but it is clear the
court was referring to subsection (i). The case concerned assets once held
by the FDIC but did not discuss any allegations of wrongdoing by the
failed bank or the FDIC. Id.

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F.2d 481, 486 (8th Cir. 1993) (“Since the language of the statute expressly provides for judicial review after exhaustion of
the administrative procedures, [plaintiff] cannot prevail on her
claim that FIRREA’s administrative procedures deny her due
process by making judicial review unavailable.”).
[4] Thus, this court has not decided the precise issue
pressed by plaintiffs in their first claim of error: whether FIRREA’s jurisdictional bar can apply to claims against parties
other than failed banks or the FDIC. Some of our sibling circuits, however, have addressed the question.
In Village of Oakwood v. State Bank & Trust Co., 539 F.3d
373 (6th Cir. 2008), the court considered an argument that
FIRREA did not apply because plaintiffs “sued only [the bank
that purchased a failed institution], rather than the FDIC” and
thus the “claims fall completely outside of the framework of
FIRREA’s administrative process.” Id. at 386. The court flatly
rejected this line of reasoning:
The problem with this novel argument is that all of
[plaintiffs’] claims against [the purchasing bank] are
directly related to acts or omissions of the FDIC as
the receiver of [the failed bank]. As the district court
explained, accepting the [plaintiffs’] argument and
permitting claimants to avoid the provisions of (d)(6)
and (d)(13) by bringing claims against the assuming
bank would encourage the very litigation that FIRREA aimed to avoid.
Id. (quotation and alterations omitted).
Although its reasoning differs slightly from the Sixth Circuit, the D.C. Circuit also signaled that it would require
exhaustion for claims against third-party purchasing banks in
some cases. The D.C. Circuit held that “[i]n FIRREA, the
word ‘claim’ is a term-of-art that refers only to claims that are
resolvable through the FIRREA administrative process, and

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the only claims that are resolvable through the administrative
process are claims against a depository institution for which
the FDIC is receiver.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d
1137, 1142 (D.C. Cir. 2011).
However, attempting to harmonize its position with that of
the Sixth Circuit, the court recognized that “plaintiffs cannot
circumvent FIRREA’s jurisdictional bar by drafting their
complaint strategically. Where a claim is functionally, albeit
not formally, against a depository institution for which the
FDIC is receiver, it is a ‘claim’ within the meaning of FIRREA’s administrative claims process.” Id. at 1144. Looking to
the facts of Village of Oakwood, the D.C. Circuit noted that
plaintiffs’ complaint in that case “alleged that the FDIC, not
the assuming bank, had breached its fiduciary duty.” Am.
Nat’l Ins. Co., 642 F.3d at 1144. On this basis, the court reasoned, “the Village of Oakwood plaintiffs’ suit was functionally a claim against the FDIC-as-receiver. . . [and] the court
of appeals correctly held the action jurisdictionally barred.”
Id. (citations omitted). The Eleventh Circuit has also concluded that FIRREA requires exhaustion for some claims
against purchasing banks, although it did not rely on the text
of § 1821(d)(13)(D) for its conclusion. See Am. First Fed.,
Inc. v. Lake Forest Park, Inc., 198 F.3d 1259, 1263 n.3 (11th
Cir. 1999).
[5] We agree with these circuits that FIRREA’s jurisdictional bar applies to claims asserted against a purchasing bank
when the claim is based on the conduct of the failed institution.4
And although we recognize the D.C. Circuit’s holding in
4

We are not persuaded by the cases that plaintiffs contend stand for the
proposition that FIRREA’s jurisdictional bar applies only to claims against
a failed bank, Freeman v. FDIC, 56 F.3d 1394 (D.C. Cir. 1995), and
Ambase Corp. v. United States, 61 Fed. Cl. 794 (2004). Although dicta
from those cases state that the bar applies to claims against a failed bank,
they simply do not address the question of whether FIRREA might apply
to a suit against a purchasing bank. See Village of Oakwood, 539 F.3d at
386-87 (holding that Ambase is inapposite).

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American National Insurance has a different formulation than
the approach in Village of Oakwood, we have no need to
resolve any potential tension between the two in this case.
The bulk of plaintiffs’ claims plainly qualify as “functionally,
albeit not formally” against a failed bank. Am. Nat’l Ins. Co.,
642 F.3d at 1144.
[6] Plaintiffs’ complaints are based almost exclusively on
alleged malfeasance by WaMu. They claim that WaMu knowingly provided banking services—including allowing the
Nevada LLCs to utilize CMT and RDC systems—despite its
actual knowledge of the Millennium Ponzi scheme. They
argue that JPMorgan is liable for this conduct because it
assumed WaMu’s liabilities pursuant to a purchase and
assumption agreement with the FDIC. By relying on WaMu’s
alleged wrongdoing, plaintiffs’ claims plainly “relat[e] to any
act or omission” of “a depository institution for which the
[FDIC] has been appointed receiver.” § 1821(d)(13)(D). And
because plaintiffs did not exhaust administrative remedies,
their claims are jurisdictionally barred by FIRREA.
B
Plaintiffs also contend that the district court erred by dismissing the portions of their claims based on JPMorgan’s
independent activity. In denying plaintiffs’ Rule 60(b)
motion, the district court held that “although Plaintiffs alleged
that practices continued after [JPMorgan] acquired WaMu in
September 2008, this assertion fell short of transforming
Plaintiffs’ claims into something other than claims ‘relating’
to WaMu’s alleged misconduct.” Moreover, the court held
that even if the complaints “include stand-alone allegations of
post-receivership misconduct by [JPMorgan], FIRREA still
applies” because the phrase “relating to” as used in
§ 1821(d)(13)(D)(ii) “has a deliberately broad and sweeping
meaning.”
[7] We disagree with the district court’s analysis. Claims
of independent misconduct by an institution that purchases a

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failed bank are not covered by FIRREA’s exhaustion requirement. We need look no further than the plain language of the
statute to reach this conclusion. As relevant to this matter,
FIRREA requires exhaustion of claims “relating to any act or
omission of [a failed bank] or the [FDIC] as receiver.”
§ 1821(d)(13)(D)(ii). If a plaintiff alleges that a purchasing
bank aided and abetted a fraudulent scheme following its
assumption of a failed bank, that claim simply does not relate
to any act or omission of the failed bank or the FDIC.
The district court relied on Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992), in support of its expansive
interpretation of the phrase “relating to.” See id. at 383 (“The
ordinary meaning of these words [‘relating to’] is a broad one
— ‘to stand in some relation; to have bearing or concern; to
pertain; refer; to bring into association with or connection
with . . . .’ ” (quoting Black’s Law Dictionary 1158 (5th ed.
1979))). Because plaintiffs allege that JPMorgan continued
the tortious conduct that WaMu began, the district court ruled
that plaintiffs’ claims relate to the conduct of WaMu.
[8] This analysis misinterprets the operative language.
Although we do not quibble with the district court’s conclusion that the phrase “relating to” has a broad meaning, we
nevertheless hold that a claim alleging liability based only on
post-purchase misconduct of a purchasing bank would not
“relate to” acts or omissions of a failed bank for purposes of
FIRREA. The fact that JPMorgan acted in a manner that was
similar, or even identical, to the manner in which WaMu
acted does not alter our conclusion. The acts of the purchasing bank might be related to the acts of the failed bank, but
FIRREA’s jurisdictional bar applies when a claim relates to
the acts of a failed bank. § 1821(d)(13)(D)(ii). Purchase of a
failed bank does not buy an institution immunity to continue
in its predecessor’s malfeasance.
The D.C. Circuit’s decision in American National Insurance supports our conclusion. In that case, the court rejected

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an argument that FIRREA barred a claim against JPMorgan
for allegedly engaging in an “elaborate scheme designed to
improperly and illegally take advantage of the financial difficulties of [WaMu] and strip away valuable assets of [WaMu]
without properly compensating the company or its stakeholders.” 642 F.3d at 1139 (quotation omitted). Such allegations
do not fall within FIRREA’s jurisdictional bar, the court held,
because “appellants allege that [JPMorgan], not the FDIC-asreceiver or [WaMu], itself committed the tortious acts for
which they claim relief.” Id. at 1144.
[9] Although we reject plaintiffs’ assertion that their
claims based on WaMu’s conduct were not “susceptible of
resolution through the claims procedure,” see Henderson, 986
F.2d at 321, we agree that a claim based on JPMorgan’s own
acts could not be resolved by the FDIC and thus is not barred
by § 1821(d)(13)(D). As the D.C. Circuit explained, if “neither the failed depository institution nor the FDIC-as-receiver
bears any legal responsibility for claimant’s injuries, the
claims process offers only a pointless bureaucratic exercise.”
Am. Nat’l Ins. Co., 642 F.3d at 1143.
JPMorgan seeks to distinguish American National Insurance on the ground that plaintiffs in this case advanced claims
with allegations of misconduct by both WaMu and JPMorgan.
But a plaintiff ’s decision to include allegations about both the
failed bank and the purchasing bank in a single complaint
does not require a court to treat those allegations in the same
manner. We frequently dismiss those portions of a claim that
are barred while permitting the remaining portion of a claim
to go forward. See, e.g., Guerrero v. Gates, 442 F.3d 697, 708
(9th Cir. 2006) (“We affirm the district court’s grant of the
defendants’ motions to dismiss . . . as to all but one half of
one of Guerrero’s § 1983 claims. We reverse as to that part
of Guerrero’s claim for excessive force resting on the 1997
incident.”). An adequately pled claim based on JPMorgan’s
own misconduct cannot fail merely because it is coupled with
a barred claim against WaMu.

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Although we hold that a plaintiff may sue based on a purchasing bank’s own wrongdoing without attempting to
exhaust FIRREA administrative remedies, we must still determine whether plaintiffs’ complaints adequately state such
claims. Each of plaintiffs’ specific allegations concern prepurchase misconduct by WaMu. The complaints do allege,
however, that the Millennium Ponzi scheme continued until
March 2009, several months after JPMorgan purchased
WaMu. In an introductory paragraph, plaintiffs allege that
WaMu knowingly aided and abetted the Ponzi scheme and
that “[t]hese practices continued after JPMorgan acquired
[WaMu] in September of 2008.” They further allege that
JPMorgan is liable “[f]or its own conduct and as [WaMu’s]
successor in interest.”
[10] We conclude that plaintiffs’ conclusory allegations
regarding JPMorgan fall short of stating a claim for relief that
is free from FIRREA’s exhaustion requirements. The sole
allegation regarding JPMorgan is that unidentified “practices
continued” after acquisition; plaintiffs fail to allege a single
specific act taken by the purchasing bank. Further, we note
that each of the named plaintiffs who allege specific dates of
their CD purchases transferred funds to the Millennium Ponzi
scheme principals prior to WaMu’s failure. Without any allegations explaining how the amorphous “practices” of JPMorgan might relate to named plaintiffs’ injuries—which had
already occurred by the time WaMu failed—we cannot discern a properly pled claim based on the purchasing bank’s
misconduct. See Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001) (we need not “accept as true allegations that are merely conclusory”); see also Cedars-Sinai
Med. Ctr. v. Nat’l League of Postmasters, 497 F.3d 972, 975
(9th Cir. 2007) (applying rule in reviewing dismissal for failure to exhaust administrative remedies).
Plaintiffs contend that the district court previously ruled
that their allegations stated valid claims by denying, in part,
JPMorgan’s Rule 12(b)(6) motion. But that order, issued

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before any briefing on the impact of FIRREA, did not differentiate between pre- and post-purchase acts. As such, our conclusion that plaintiffs have not adequately pled a complaint
based on JPMorgan’s actions is not in tension with that ruling.
[11] Although we hold that a claim—or a portion of a
claim—based on JPMorgan’s independent, post-purchase
conduct would not be subject to FIRREA’s jurisdictional bar,
we conclude that plaintiffs’ complaints do not include such a
claim. Accordingly, the district court’s order dismissing the
complaints was proper despite our disagreement with its reasoning.
C
In addition to the substantive errors the plaintiffs argued in
their Rule 60(b) motion, they claimed that the district court
erred by dismissing the case without granting them leave to
amend their complaints. In denying that motion, the district
court stated that because final judgment had already been
entered, a motion for leave to amend may only be considered
“if the judgment is first reopened under a motion brought
under Rule 59 or 60.” Lindauer v. Rogers, 91 F.3d 1355, 1357
(9th Cir. 1996).
We question whether the rule of Lindauer applies here. A
separate judgment was not actually entered below.5 JPMorgan
claims that the district court’s order granting its Rule 12(b)(1)
motion was a “judgment” and thus Lindauer applies. JPMorgan’s theory appears inconsistent with this court’s jurispru5

The fact that a separate judgment was never entered does not affect our
appellate jurisdiction because the district court’s dispositive order constituted “a full adjudication of the issues” and clearly demonstrated “the
judge’s intention that it be the court’s final act in the matter.” Casey v.
Albertson’s, Inc., 362 F.3d 1254, 1258 (9th Cir. 2004) (quotation omitted).
“[N]either the Supreme Court nor this court views satisfaction of Rule 58
as a prerequisite to appeal.” Kirkland v. Legion Ins. Co., 343 F.3d 1135,
1140 (9th Cir. 2003).

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dence regarding plaintiffs’ ability to amend as of right
following an order dismissing all claims. See Breier v. N. Cal.
Bowling Proprietors’ Ass’n, 316 F.2d 787, 789 (9th Cir.
1963) (“Neither the filing nor granting of such a motion [to
dismiss] before answer terminates the right to amend; an
order of dismissal denying leave to amend at that stage is
improper, and a motion for leave to amend (though unnecessary) must be granted if filed.”); see also Worldwide Church
of God, Inc. v. California, 623 F.2d 613, 616 (9th Cir. 1980)
(per curiam) (judgment, rather than order of dismissal, cuts
off right to amend prior to responsive pleading).
[12] Nevertheless, plaintiffs conceded at oral argument
that a judgment had been entered by the time plaintiffs filed
their Rule 60(b) motion. In light of this concession, we will
assume without holding that Lindauer applies. Because we
conclude that the district court’s dismissal was proper, there
was no basis to reopen the judgment under Rule 60(b).
Accordingly, Lindauer barred post-judgment amendment. To
the extent that plaintiffs argue that the district court’s dismissal without leave to amend was itself the mistake justifying reopening the case, we reject their argument because they
did not seek leave to amend before filing the Rule 60(b)
motion—at which point, they concede, judgment had been
entered. Plaintiffs cannot prevail on an argument that the district court should have sua sponte granted a motion they never
filed. See Alaska v. United States, 201 F.3d 1154, 1163 (9th
Cir. 2000) (“Where a party never asked for permission, its
argument that the ‘district court should have permitted’ is
without force.”). Accordingly, the district court’s denial of
plaintiffs’ Rule 60(b) motion was proper.
IV
For the foregoing reasons, we AFFIRM.