Galvez v. Valley Capital Bank NA et al

Filing 38

ORDER that Defendant FDIC's 29 Motion to Dismiss is granted; Plaintiff's 32 Motion for Enlargement is denied; and Plaintiff's 36 Motion for Leave to File A Sur-Reply is dened. The Clerk of the Court is directed to terminate this action. Signed by Judge G Murray Snow on 06/28/11. (ESL)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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)
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Plaintiff,
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vs.
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Valley Capital Bank, N.A., XYZ)
Corporation, Federal Insurance Deposit)
Corp., a federal agency in its capacity as)
Receiver for Valley Capital Bank, N.A., )
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Defendants.
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Joe Galvez,

No. CV-10-1602-PHX-GMS
ORDER

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Pending before the Court are the following motions: (1) Motion to Dismiss filed by

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the Federal Deposit Insurance Corporation (“FDIC”) (Doc. 29); (2) Motion for Enlargement

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filed by Joe Galvez (Doc. 32); and (3) Motion for Leave to File A Sur-Reply filed by Galvez

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(Doc. 36).

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BACKGROUND

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The first amended complaint alleges the following. In January 2009, Galvez

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(“Plaintiff”), entered into employment with Valley Capital Bank (“VCB”) as a Business

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Development Officer (“BDO”). (Doc. 21). Plaintiff's employment agreement, executed on

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January 5, 2009, included a compensation program that provided that Plaintiff, as BDO,

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would receive a commission of 40% for the commercial loans he “closed” and “fully

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funded.” In early 2009, Plaintiff received commissions of 40% for the three funds he closed

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and fully funded in accordance with his agreement with VCB. However, in September and

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October of 2009, prior to his termination, Plaintiff closed and fully funded three loans, and

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VCB allegedly reneged on their obligation to pay Plaintiff his 40% commission. As of the

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date of the complaint, in which he alleges this failure together with race and national origin

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discrimination and other unspecified torts, Plaintiff alleges that VCB has refused to pay him

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the commissions due for these loans, totaling $59,636.15.

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On December 11, 2009, the Office of Controller of the Currency closed VCB and

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appointed the FDIC as VCB’s Receiver. On February 25, 2010, Plaintiff submitted a Proof

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of Claim Form with the FDIC based upon the allegations contained in Plaintiff’s first

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amended complaint. On May 20, 2010, the FDIC issued a Notice advising Plaintiff of the

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disallowance of his claim. On July 29, 2010,1 Plaintiff filed this lawsuit against VCB and the

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FDIC, asserting claims for 1) breach of written contract; 2) violation of Arizona wage law;

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3) misrepresentation; 4) violation of covenant of good faith and fair dealing; and 5) violation

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of the Civil Rights Act. Plaintiff further asserts two counts seeking judicial review of the

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FDIC’s disallowance of his claim. Specifically, count six seeks de novo review of claims set

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forth by Plaintiff in his Proof of Claim form with the FDIC. Count seven requests a

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declaration that the FDIC-Receiver’s disallowance is void.

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In response to Plaintiff’s complaint, the FDIC filed a Motion to Dismiss all the claims

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for lack of subject matter jurisdiction pursuant to Federal Rule 12(b)(1) and counts six and

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seven for the additional failure to state a claim pursuant to Rule 12(b)(6). (Doc. 29).2 Plaintiff

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responded by filing a Motion for Enlargement and a Motion for Leave to File A Sur-Reply.

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(Doc. 32, 36).

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Plaintiff admits in his response that his original complaint was filed past the statute
of limitations. (Doc. 32). Plaintiff states that he failed to file the complaint on
time because he inaccurately determined the date of the proper filing deadline, and
because he was involved in related state court proceedings with the FDIC. Id.
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Since the Court is deciding this motion on the basis of the 12(b)(1) motion, it is not
necessary to discuss FDIC's 12(b)(6) claim with respect to counts six and seven.
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DISCUSSION
I.

Motion To Dismiss

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A.

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“The party asserting jurisdiction has the burden of proving all jurisdictional facts.”

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Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990) (citing McNutt v.

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Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). In effect, the court presumes lack

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of jurisdiction until the plaintiff proves otherwise. See Kokkonen v. Guardian Life Ins. Co.

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of Am., 511 U.S. 375, 377 (1994); Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221,

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1225 (9th Cir. 1989). The defense of lack of subject matter jurisdiction may be raised at any

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time by the parties or the court. See FED. R. CIV. P. 12(h)(3). A Rule 12(b)(1) motion to

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dismiss “for lack of subject matter jurisdiction may either attack the allegations of the

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complaint or may be made as a ‘speaking motion’ attacking the existence of subject matter

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jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs., 594 F.2d 730, 733 (9th Cir.

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1979).

Legal Standard

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In resolving the former motion, a “facial attack” under Rule 12(b)(1), the district court

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must accept the allegations of the complaint as true. See Federal Civil Procedure Before

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Trial § 9:84, at 9-20 (citing Valdez v. United States, 837 F. Supp. 1065, 1067 (E.D. Cal.

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1993), aff’d, (9th Cir. 1995)). Unlike a Rule 12(b)(6) motion, however, the court will not

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reasonably infer allegations sufficient to support federal subject matter jurisdiction because

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a plaintiff must affirmatively allege such jurisdiction. Id. § 9:84a, at 9-20.

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B.

Analysis
1.

Counts one through five

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The Financial Institutions Reform, Recovery, and Enforcement Act of 1989

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(“FIRREA”) establishes that the FDIC may act as a receiver for failed financial institutions

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to settle the claims against the failed institution. See 12 U.S.C. §1821(d)(3)-(13). FIRREA

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mandates that the FDIC “promptly publish a notice to the depository institution's creditors

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to present their claims . . . to the receiver by a date specified in the notice” when it takes over

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as receiver. §1821(d)(3)(B)(i). Once a claim is filed, the FDIC may allow or disallow the
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claim and must notify the claimant of its determination. See §1821(d)(5)(A)(i). A claimant

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may seek either administrative review or file a lawsuit on a disallowed claim. See

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§1821(d)(6)(A). The claimant must seek administrative review or file suit within 60 days of

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the date of the notice of disallowance or the statute of limitations of the claim will run and

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“the claimant shall have no further rights or remedies with respect to such claim.”

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§1821(d)(6)(B).

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In the instant case, Plaintiff concedes that he filed his suit past the time allowed by the

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statute of limitations under 12 U.S.C. §1821, but he requests that this Court retroactively

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enlarge the time allotted to file suit. (Doc. 32). The FDIC argues that Plaintiff's claim is

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barred because this Court lacks subject matter jurisdiction over a time-barred claim under 12

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U.S.C. §1821. (Doc. 29).

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As Receiver for Valley Capital Bank, the FDIC has authority to determine claims in

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accordance with the requirements set forth by Congress. See 12 U.S.C. §1821(d)(3)(A). The

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FDIC received Plaintiff's claim on February 25, 2010 and disallowed it pursuant to

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§1821(d)(5)(D) in a timely manner on May 20, 2010. (Doc. 1). The FDIC had broad

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authority to deny Plaintiff's claim. See §1821(d)(5)(D)(i) (“The receiver may disallow any

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portion of any claim by a creditor or claim of security, preference, or priority which is not

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proved to the satisfaction of the receiver.”). The statute further states that “no court may

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review the Corporation's determination to . . . disallow a claim.” §1821(d)(5)(E). The FDIC

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used its broad discretion to initially disallow Plaintiff's claim, but Plaintiff had the ability to

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file a lawsuit protesting the FDIC's disallowance of his claim. See §1821(d)(6)(A) (“the

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claimant may request administrative review of the claim . . . or file suit on such claim . . . in

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the district . . . of the United States . . . and such court shall have jurisdiction to hear such

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claim”). Plaintiff did not file suit before the statute of limitations ran on his claim because

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Plaintiff waited 69 days (May 20, 2010 - July 29, 2010) after “the date of any notice of

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disallowance of such claim” to file his claim, and the statute of limitations ran after 60 days.

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(Doc. 1). The statute further provides that if a claimant fails to file a request for

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administrative review or to file suit before the end of the 60-day period “such disallowance
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shall be final and the claimant shall have no further right or remedies with respect to such

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claim”. §1821(d)(6)(B)(ii). Plaintiff asserts that he was only five days late in filing his

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lawsuit against the FDIC because he did not receive notice of the disallowance of his claim

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until May 25, 2010. However, “[t]he date of the notice of disallowance, not the date that

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notice is mailed or received commences the 60 day period.” Jette v. Orange Cnty. Fin., Inc.,

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2009 WL 5029562, *3 (E.D. Cal. Dec. 15, 2009) (quoting Yumukoglu v. Resolution Trust

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Corp., 1992 WL 236939, *1 (E.D. La. Sept. 1, 1992)).

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Accordingly, this Court does not have subject matter jurisdiction over Plaintiff's claim

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because the statute places a jurisdictional bar over claims brought more than 60 days after

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the notice of disallowance. Jette, 2009 WL 5029562, *3 (“Plaintiffs' failure to act within the

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sixty day statutory time period is fatal to their . . . claim.”); see also Intercontinental Travel

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Mktg., Inc. v. FDIC, 45 F.3d 1278, 1284 (9th Cir. 1994) (citing Marquis v. FDIC, 965 F.2d

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1148, 1154–55 (1st Cir. 1992 )) (“The district court technically does not lose jurisdiction

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over the case until the claimant fails to file a timely administrative claim.”). In

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Intercontinental Travel Marketing, the Ninth Circuit explicitly states that the courts do not

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have subject matter jurisdiction when the statute of limitations runs on a claimant in

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FIRREA. 45 F.3d at 1284 (“Our reading of FIRREA indicates . . . the claims bar date to be

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a jurisdictional requirement.”).

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Plaintiff asserts four reasons the Court should grant Plaintiff's retroactive Motion for

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Enlargement. (Doc. 32). Plaintiff first argues that federal courts have permitted enlargement

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of FIRREA time deadlines. (Doc. 32). Plaintiff relies on Carpenter v. FDIC to establish that

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this Court may assume subject matter jurisdiction by expanding FIRREA's statute of

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limitations. 205 B.R. 600 (B.A.P. 9th Cir. 1997) (citing In Re Parker North Am. Corp., 24

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F.3d 1145, 1151–54 (9th Cir. 1994)). However, the precise holding of Carpenter is that “the

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FIRREA administrative claim procedures and jurisdictional bar are inapplicable to

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affirmative defenses . . . that arise incidentally to the bankruptcy court's determination of a

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claim against the debtor.” Id. Unlike Carpenter, it is undisputed that the administrative

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claims procedures of §1821(d), including the relevant statute of limitations, apply to the
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claims asserted by Plaintiff. Plaintiff further relies on Franklin Financial v. RTC, 53 F.3d 268

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(9th Cir. 1995), to show that FIRREA time deadlines can be enlarged. Franklin is

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distinguishable from the present case because the reason the court expanded the deadline in

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that case was because the time deadline was based on vague language (“reasonable period”)

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as opposed to the unambiguous language of FIRREA in the present case (“sixty days”). Id.

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at 271–72.

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Plaintiff's next argument is that federal rules regarding time limits should be liberally

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construed. (Doc. 32). Plaintiff relies on Tenth Circuit case law holding that a plaintiff could

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file a notice of appeal one day late because the thirtieth day fell on a state holiday, and the

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plaintiff was prevented from filing on time because although the clerk’s office was

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technically supposed to be open, it was in fact locked and unattended. Prudential Oil & Co.

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v. Hamlin, 261 F.2d 626, 627 (10th Cir. 1958). The circumstances in the present case (filing

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complaint nine days late because a similar matter was pending in state court) does not

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warrant liberal construal of the filing deadline.

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Plaintiff further argues that the Court is allowed discretion to grant the Motion for

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Enlargement because Plaintiff’s conduct constituted excusable neglect. (Doc. 32). The Court

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cannot exercise its discretion in this case because Plaintiff's claims are barred for want of

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subject matter jurisdiction. See Intercontinental Travel Mktg., Inc. 45 F.3d at 1286. Plaintiff

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asserts excusable neglect based on his claim that “the factual mistake was caused by

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confusion involving the pending state court action pertaining to Plaintiff's claim.” (Doc. 32).

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Plaintiff essentially admits to misunderstanding or not knowing the relevant law, neither of

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which constitutes excusable neglect. See Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir.

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2004).

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Plaintiff's final argument is that equitable tolling should apply to this case. (Doc. 32).

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Equitable tolling requires a higher burden (“extraordinary” circumstances) than “garden

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variety . . . excusable neglect.” Holland v. Florida, 130 U.S. 2549, 2564 (2010) (finding that

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attorney failing to file death row inmate's federal petition despite repeated letters citing

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applicable legal rules constituted “extraordinary” circumstances justifying equitable tolling).
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Plaintiff does not claim any extraordinary circumstances that prevented him from filing a

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timely suit.

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Plaintiff fails to meet its burden of proving that this Court has subject matter

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jurisdiction over its claim; thus, this Court cannot exercise its discretion in enlarging,

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liberally construing, or equitably tolling FIRREA's statute of limitations because subject

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matter jurisdiction limits are not subject to these equitable defenses. Holland, 130 U.S. at

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2560 (noting that non-jurisdictional limitations periods may be subject to equitable defenses

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as opposed to jurisdictional limitations that “set forth ‘an inflexible rule requiring dismissal

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whenever’ its ‘clock has run.’”) (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)); see

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also Intercontinental Travel Mktg., Inc. 45 F.3d at 1286 (ruling that neither waiver nor

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estoppel are sufficient defenses for overcoming the court's lack of subject matter

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jurisdiction).

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2.

Counts six and seven

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In addition to the claims asserted in counts one through five, counts six and seven

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allege separate causes of action seeking judicial review of the FDIC’s §1821(d)(5)(D)

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disallowance of his claim. Count six of Plaintiff's first amended complaint alleges that this

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Court has de novo jurisdiction to review the denial of a claim made by the FDIC as Receiver.

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(Doc. 21). However, FIRREA clearly provides that “[n]o court may review the Corporation’s

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determination pursuant to subparagraph (D) to disallow a claim. 12 U.S.C. §1821(d)(5)(E).

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Given that the FDIC’s determination was made pursuant to subparagraph (D), the Court lacks

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jurisdiction to review the disallowance of Plaintiff's claim.

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Count seven of Plaintiff's First Amended Complaint asserts that the FDIC-Receiver's

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disallowance should be declared void because it disallowed Plaintiff's proof of claim without

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any meaningful explanation as required by the statute. (Doc. 21). “If any claim . . . is

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disallowed, the notice to the claimant shall contain . . . a statement of each reason for the

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disallowance.” Id. at §1821(d)(5)(iv)(I). Similar to count six, the Court lacks jurisdiction to

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declare as void the FDIC’s disallowance of Plaintiff’s claim, which is, in effect a request for

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this Court to review the disallowance. See §1821(d)(5)(E). Plaintiff fails to provide authority
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suggesting that FDIC's lack of a meaningful explanation for its disallowance of Plaintiff's

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claim grants this Court subject matter jurisdiction over the case. FIRREA provides that the

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FDIC had broad authority to disallow Plaintiff’s claim. §1821(d)(5)(D)(i). Plaintiff had the

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opportunity to challenge the FDIC’s disallowance of his claim, but he failed to seek

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administrative review or file suit within the statutorily mandated time frame. See

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§1821(d)(6)(B). Thus, “[n]o court may review the Corporation's determination . . . to

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disallow a claim.” §1821(d)(5)(D).

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In its response to Defendant’s Motion to Dismiss counts six and seven of its

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complaint, Plaintiff asserts that Sharpe v. FDIC, 126 F.3d 1147 (9th Cir. 1997), provides an

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applicable exception to the jurisdictional bar. Sharpe held that the FDIC could be liable for

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causing a breach of a pre-receivership contract that Plaintiff had entered into with a failed

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bank. Id. at 1155. However, Sharpe also established that the exception to the §1821(j)

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jurisdictional bar only applies where FIRREA limits the FDIC’s authority to act. Id. Again,

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FIRREA grants the FDIC broad power to disallow claims and does not limit the FDIC’s

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discretion to disallow claims. §1821(d)(5)(D)–(E). Thus, the exception to the jurisdictional

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bar does not apply here because FDIC acted within its authority as laid out in FIRREA.

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§1821(d)(3)-(13). Plaintiff had a contract with VCB, and the FDIC, in its capacity as

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receiver, exercised its authority properly in disaffirming this contract. See §1821(e)(1); (Doc.

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21). Accordingly, the Court lacks subject matter jurisdiction to review or to declare void the

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FDIC’s Notice of Disallowance.

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II.

Motion for Leave to File A Sur-Reply

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Arizona Local Rule of Civil Procedure 7.2 generally does not allow sur-replies.

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Plaintiff's Motion for Leave does not provide a compelling reason, sufficient under the Local

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Rules, to allow a sur-reply. Plaintiff's sur-reply relies on the Supreme Court holding in

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Holland, decided in June 2010. 130 U.S. at 2561–62 (holding that non-jurisdictional

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limitations statutes are subject to equitable tolling in extraordinary circumstances). This case

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was available to Plaintiff at the time of his response (filed January 14, 2011). Nevertheless,

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the case does not change the outcome of this Court's decision. Thus, Plaintiff has no
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compelling reason for filing a sur-reply.

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IT IS THEREFORE ORDERED:

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1.

Defendant FDIC's Motion to Dismiss (Doc. 29) is GRANTED;

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2.

Plaintiff's Motion for Enlargement (Doc. 32) is DENIED; and

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3.

Plaintiff's Motion for Leave to File A Sur-Reply (Doc. 36) is DENIED.

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4.

The Clerk of the Court is directed to terminate this action.

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DATED this 28th day of June, 2011.

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