McGill v. Sunrise Bank of Arizona et al
Filing
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ORDER that Defendant Federal Deposit Insurance Corporation's Motion for Reconsideration of the FDIC's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 60 ) is denied. FURTHER ORDERED that Plaintiff's Motion for Oral Argument and for Leave to File Proof Re: Conveyed Damages (Doc. 94 ) is denied. See order for complete details. Signed by Judge Neil V. Wake on 10/14/14. (NKS)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Gregory G. McGill,
No. CV-13-02003-PHX-NVW
Plaintiff,
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v.
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ORDER
Sunrise Bank of Arizona, et al.,
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Defendants.
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Before the Court are Defendant Federal Deposit Insurance Corporation’s Motion
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for Reconsideration of the FDIC’s Motion to Dismiss for Lack of Subject Matter
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Jurisdiction (Doc. 60), Plaintiff’s Memorandum of Points and Authorities in Opposition
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to FDIC’s Motion (Doc. 66) and Defendant’s Reply (Doc. 79). For the reasons that
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follow, Defendant’s Motion will be denied.
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“Motions for reconsideration are disfavored and should be granted only in rare
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circumstances.” United States v. Vistoso Partners, LLC, No. CV10-0444 PHX DGC,
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2011 U.S. Dist. LEXIS 69841, at *1 (D. Ariz. June 27, 2011) (citation omitted). “A
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motion for reconsideration will be denied ‘absent a showing of manifest error or a
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showing of new facts or legal authority that could not have been brought to [the Court’s]
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attention earlier with reasonable diligence.’” Id. (brackets in original) (citing LRCiv
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7.2(g)(1)).
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reconsideration.” Id. (citation omitted). “Nor should reconsideration be used to make
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new arguments or to ask the Court to rethink its analysis.” Id. at *1-2 (citing Nw.
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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988)).
“Mere disagreement with an order is an insufficient basis for
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Defendant has not shown a manifest error in the Court’s previous Order (Doc. 56).
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Defendant’s discussion of the relevant facts and legal authorities, while more thorough
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than in Defendant’s Motion to Dismiss Case as to Defendant Sunrise Bank Based Upon
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Lack of Subject Matter Jurisdiction (Doc. 30) or its Reply (Doc. 47) in support of that
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Motion, covers no new ground. Instead, Defendant’s Motion merely “ask[s] the Court to
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rethink its analysis.” Id.
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The demanding standard governing motions for reconsideration aside, Defendant’s
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arguments are unpersuasive. Defendant is right that the mere pendency of Plaintiff’s
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state court action at the time Sunrise Bank of Arizona (“Sunrise”) went into receivership
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does not excuse Plaintiff from complying with 12 U.S.C. § 1821(d)(3)(B)(i)’s
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requirement that he “present [his] claims, together with proof, to the receiver” by the
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statutorily specified date. See Intercontinental Travel Mktg. v. FDIC, 45 F.3d 1278,
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1282-83 (9th Cir. 1994) (“In Henderson v. Bank of New England we held that no
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jurisdiction exists if a claimant does not exhaust [the Financial Institutions Reform,
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Recovery and Enforcement Act of 1989’s] administrative process. … [W]e see no reason,
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in § 1821(d) or any other source, why that holding should not apply to cases in which the
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claimants filed their action before the FDIC was appointed as receiver, and we extend
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Henderson’s holding accordingly.” (emphasis in original) (citation omitted)).
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Defendant places too much stress on the statute’s requirement that a claim include
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“proof” of its allegations.
But
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As Defendant concedes, Plaintiff need not use the FDIC-provided Proof of Claim
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form when filing his claim. Doc. 60 at 2. His August 2013 emails to Defendant
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regarding alleged fraud by Sunrise can therefore suffice, as long as they provide adequate
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notice to Defendant of Plaintiff’s claim. Defendant repeatedly cites language from a
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Third Circuit case holding that a claim filed with the FDIC under § 1821(d) must be
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“identified, quantified and substantiated.” FDIC v. Shain, Schaffer & Rafanello, 944
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F.2d 129, 132 (3d Cir. 1991). As an initial matter, this Court is not bound by the
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decisions of the Third Circuit or its subsidiary district courts. Defendant writes that
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“courts have consistently held that a claimant, such as Plaintiff, must provide the FDIC-R
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with more than a simple notice of a claim; he must provide actual proof of the underlying
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facts and ensure that the claim is sufficiently ‘identified, quantified and substantiated,’”
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Doc. 60 at 2 (first emphasis added) (bold and underlining in original), yet Defendant’s
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Motion provides no citation to Ninth Circuit authority for this proposition. The Motion
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does cite to an opinion from the Eastern District of California, but that opinion nowhere
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uses the words “identified,” “quantified” or “substantiated.” See Cipponeri v. FDIC, No.
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CIV-F-09-0688 AWI DLB, 2010 U.S. Dist. LEXIS 63000 (E.D. Cal. June 24, 2010).
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Moreover, the “identified, quantified and substantiated” language in Shain was offered in
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passing; that case simply did not address the question of how detailed a claim must be in
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order to give the FDIC sufficient notice of potential liability.
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Even if this standard were “consistently” applied in other circuits, and even if it
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were binding on this Court, Defendants have not established that Plaintiff’s August 2013
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emails to the FDIC fall short. Far from a “rambling account of his state court lawsuit,”
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Doc. 60 at 6, Plaintiff’s August 23, 2013, email to Greg Hernandez in the FDIC Office of
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Communications offers a relatively clear, straightforward and concise, yet thorough,
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account of the acts he alleges Sunrise committed. The email does not cite to statutory
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provisions or case law that would support Plaintiff’s claim, but it alleges that Sunrise
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committed “valuation fraud,” made a loan in violation of its own internal policies, and
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induced Plaintiff to take out a loan without disclosing the underlying land’s true value.
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Defendant was not left “to dig through the exhibits in order to surmise what claims
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[Plaintiff] might possibly bring.” Doc. 79 at 3 (quoting FirsTier Bank, Kimball, Neb. v.
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FDIC, 935 F. Supp. 2d 1109, 1119 (D. Colo. 2013)).
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significantly more information than could fit on the FDIC’s own Proof of Claim form,
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sufficiently “identifie[s]” Plaintiff’s claim.
The email, which provides
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It is true that Plaintiff’s emails nowhere specify an exact dollar amount that he
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seeks from Defendant. But neither § 1821(d) nor any case cited by Defendant requires
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such a precise calculation. Plaintiff’s August 23, 2013, email—which describes the size
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of the loan he took out from Sunrise, as well as the alleged true value of his land—
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provides enough detail that Defendant cannot plausibly be left wondering “whether he is
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requesting $5 or $5 million.” Doc. 79 at 4.
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Finally, Defendant’s Motion asserts repeatedly that Plaintiff’s emails contain “no
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proof of any kind” regarding his allegations (Doc. 60 at 7) (emphasis in original), but it is
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not clear exactly what kind of proof Defendant believes Plaintiff should have offered, but
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did not, in order to “substantiate” his claim. If Defendant’s view is that Plaintiff should
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have submitted affidavits, spreadsheets, business records, receipts or other supporting
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documents along with his emails, it has neither expressed that position clearly nor cited to
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any supporting authority. In the absence of a clear indication that the Ninth Circuit
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requires “proof” of this kind, the Court declines to impose such an onerous obligation on
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those seeking to lodge claims with the FDIC.
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Defendant argues, that a plaintiff who submitted the FDIC’s Proof of Claim form, along
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with a copy of his state court complaint, could not be heard in federal court because he
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“did not provide any evidence for FDIC to determine whether the claim was meritorious”
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and thereby failed to exhaust the administrative claims process. 2010 U.S. Dist. LEXIS
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63000, at *6, 19. But the FDIC in that case had sent the plaintiff an individually
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addressed letter asking that he submit evidence supporting his claim, which plaintiff
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failed to provide until the claims bar date had passed. Id. at *3. No such facts exist in
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this case. In any event, the Cipponeri court, given the “lack of clarity and detail” in
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FIRREA’s rules and the “unique facts” of that case, was sufficiently unsure of its holding
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that it explicitly encouraged the plaintiff to appeal its ruling. See id. at *21.
The Cipponeri court did hold, as
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Though lacking the clarity and organization expected of complaints filed in this
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Court, Plaintiff’s August 2013 emails to Defendant provide enough information to
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qualify as the filing of a “claim” with the requisite “proof.” 18 U.S.C. § 1821(d)(3)(B)(i).
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Defendant has not produced new facts or law that would justify reversing the Court’s
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previous Order.
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///
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IT IS THEREFORE ORDERED that Defendant Federal Deposit Insurance
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Corporation’s Motion for Reconsideration of the FDIC’s Motion to Dismiss for Lack of
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Subject Matter Jurisdiction (Doc. 60) is denied.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Oral Argument and for
Leave to File Proof Re: Conveyed Damages (Doc. 94) is denied.
Dated this 14th day of October, 2014.
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