FirsTier Bank, Kimball, Nebraska v. Federal Deposit Insurance Corporation et al
ORDER denying 81 Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case. No. 12-cv-00240, 82 Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in Case. No. 12-cv-00240, 83 Motion to Stay Case No. 12-cv-00240, 84 Motion t o Alter Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case No. 11-cv-03404, 85 Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in Case No. 11-cv-03404, and 86 Motion to Stay Case No. 11-cv-03404 by Judge Christine M. Arguello on 11/13/13. (dkals, ) Modified on 11/13/2013 to add text (dkals, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-03231-CMA-MJW (Consolidated for All Purposes with
Civil Action No. 11-cv-03404-CMA-KMT and
Civil Action No. 12-cv-00240-CMA-KMT)
FIRSTIER BANK, KIMBALL, NEBRASKA, a Nebraska Bank,
FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for
FIRSTIER BANK, LOUISVILLE, COLORADO, a Colorado Bank in receivership,
ORDER DENYING PLAINTIFF’S MOTIONS
This matter is before the Court on Consolidated-Plaintiff Adams Bank & Trust’s
(“Adams”) Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case. No.
12-cv-00240 (Doc. # 81), Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in
Case. No. 12-cv-00240 (Doc. # 82), Motion to Stay Case No. 12-cv-00240 (Doc. # 83),
Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case No. 11-cv-03404
(Doc. # 84), Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in Case No.
11-cv-03404 (Doc. # 85), and Motion to Stay Case No. 11-cv-03404 (Doc. # 86). 1
Defendant Federal Deposit Insurance Corporation (“FDIC”) responded to each of
these motions (Doc. ## 90, 91, 92, 93, 94, 95) and Adams replied to each response
(Doc. ## 100, 101, 102, 103, 104, 105). Consolidated-Plaintiff FirsTier Bank, Kimball,
As in the other orders in this consolidated case, the Court will refer to Case No. 12-cv-00240 as
“Adams I” and Case No. 11-cv-03404 as “Adams II”.
Nebraska (“FTB-NE”) also filed a response to Adams’s Motion to Alter Judgment
Pursuant to Fed. R. Civ. P. 59(e) (Doc. # 81). (Doc. # 96.)
At the outset, the Court notes that Adams’ motions are duplicative of one
another. Therefore, to the extent possible yet mindful of its duty to address each of
Adams’ contentions, the Court will consolidate its analysis on those contentions that
The facts and background of this case are set forth in detail in FirsTier Bank,
Kimball, Neb. v. F.D.I.C., 935 F. Supp. 2d 1109 (D. Colo. 2013), the order from which
Adams seeks relief. In that decision, the Court dismissed each of the consolidated
cases. With regard to Adams I, the Court determined Adams failed to exhaust all but
one claim and, therefore, the Court did not have subject matter jurisdiction over those
unexhausted claims. After construing the contract provisions at issue, the Court
dismissed the remaining breach of contract claim pursuant to Fed. R. Civ. P. 12(b)(6).
The Court also dismissed Adams II because the complaint was duplicative of
the complaint in Adams I. Adams now moves this Court to reconsider those
determinations. In the alternative, Adams asks the Court to stay these proceedings
while it exhausts its administrative remedies.
“The Federal Rules of Civil Procedure do not recognize a ‘motion to reconsider.’”
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A litigant who is
subject to an adverse judgment, and who seeks reconsideration by the district court
of that adverse judgment, may “file either a motion to alter or amend the judgment
pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment pursuant
to Fed. R. Civ. P. 60(b).” Id. Whether a reconsideration request should be reviewed
under Rule 59 or 60 “depends upon the reasons expressed by the movant.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d
1194, 1200 (10th Cir. 2011). Where the motion “involves ‘reconsideration of matters
properly encompassed in a decision on the merits,’” a court considers the motion under
Rule 59(e). Phelps v. Hamilton, 122 F.3d 1305, 1323–24 (10th Cir. 1997) (quoting
Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir. 1989)); see also Jennings v. Rivers,
394 F.3d 850, 855 (10th Cir. 2005). In other words, if the reconsideration motion seeks
to alter the district court’s substantive ruling, then it should be considered a Rule 59
motion and be subject to Rule 59’s constraints. See Phelps, 122 F.3d at 1324.
Adams filed motions in both Adams I and Adams II under Rules 59(e) and 60(b).
Yet, Adams itself believes that Rule 59(e) provides the proper avenue for relief for both
cases and filed its Rule 60 motions (which are virtually carbon copies of the respective
Rule 59 motions and only differ with regard to the standard of review) as a
precautionary measure. (See Doc. ## 82, at 3; 85, at 2.) Adams met the time limitation
under Rule 59 by filing the motions within 28 days from the entry of judgment. See Van
Skiver, 952 F.2d at 1243. Looking to the substance of Adams’ motions relating to
Adams I, it appears that Adams asserts that the Court misapplied the law. In the
Adams II motions, Adams’s argument centers on an explanation for its decision to file
a duplicative case. See Commonwealth Prop. Advocates, LLC, 680 F.3d at 1200
(construing a party’s assertion that the court overlooked facts as a Rule 59(e) motion).
The reconsideration motions seek to alter the substantive ruling; therefore, the Court
will construe Adams’ arguments pursuant to Fed. R. Civ. P. 59(e). See Van Skiver, 952
F.2d at 1244.
The three major grounds that justify reconsideration are: (1) an intervening
change in controlling law; (2) the availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice. See Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000); see also Phelps, 122 F.3d at 1324. A motion for
reconsideration is inappropriate to re-argue an issue previously addressed by the court
when the motion merely advances new arguments or supporting facts which were
available at the time of the original application. Paraclete, 204 F.3d at 1012 (motion to
reconsider is not a proper vehicle through which to “revisit issues already addressed or
advance arguments that could have been raised in prior briefing.”) However, a motion
to alter or amend that reiterates issues originally raised in the application and that seeks
to challenge the legal correctness of the court’s judgment by arguing that the district
court misapplied the law or misunderstood the litigant’s position is correctly asserted
pursuant to Fed. R. Civ. P. 59(e). See Van Skiver, 952 F.2d at 1244.
With regard to those claims the Court found Adams failed to exhaust, Adams
takes issue with this Court’s narrow construction of the Tenth Circuit’s decision in
Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir. 1994). This
Court discussed in detail its reasons for conscribing Homeland Stores, including that
cases upon which the Tenth Circuit relied have since been overturned and that every
circuit to consider the question since Homeland Stores has held that the exhaustion
requirement does apply to post-appointment claims. See Montejo v. Louisiana, 556
U.S. 778, 779 (2009) (courts properly look at a decision’s antiquity, workability,
reasoning, and reliance interests at stake to determine whether to adhere to the
doctrine of stare decisis). Adams essentially attempts to re-argue this issue, which the
Court previously addressed; therefore, Adams’ belated arguments do not provide an
appropriate basis for Rule 59(e) relief. See Paraclete, 204 F.3d at 1012
Adams asserts various arguments regarding what it believes is the appropriate
meaning of the word “payment” in the “Purchaser First Out” provision of the Loan
Participation Agreement. These arguments were available when Adams filed its original
response, yet rather than asserting these substantive arguments, Adams argued only
that FDIC’s argument regarding the appropriate interpretation of the contract is
“improper on a Rule 12(b)(6) motion because the court ‘accept[s] as true all wellpleaded factual allegations . . . .”2 Adams chose not to make a substantive argument
regarding this claim even though those arguments were available. Adams’
disagreement with the Court’s resolution of this question does not entitle it to
reconsideration of it. See, e.g., Paraclete, 204 F.3d at 1012 (motion to reconsider is
not a proper vehicle through which to “revisit issues already addressed or advance
arguments that could have been raised in prior briefing”); Lacefield v. Big Planet, No.
2:06–CV–844, 2008 WL 2661127, at *1 (D. Utah July 3, 2008) (unpublished) (“[w]hen
a motion for reconsideration raises only a party’s disagreement with a decision of the
The Court rejected this assertion following clear Colorado precedent that “whether an
ambiguity exists in a contract is a matter of law” FirsTier Bank, 935 F. Supp. 2d at 1126 (citing
Pepcol Mfg. Co. v. Denver Union Corp., 687 P.2d 1310, 1314 (Colo. 1984)) and Supreme Court
precedent that courts “are not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Court, that dispute should be dealt with in the normal appellate process” (quotation
marks and citations omitted)).
Adams challenges the dismissal of Adams II as duplicative of the complaint in
Adams I by way of explaining why it filed a duplicative case. In so doing, Adams does
not appear to challenge the Court’s determination that Adams II was duplicative to
Adams I. Thus, these additional facts do not call into question the Court’s determination
that Adams II is duplicative; rather, they confirm it. Moreover, Adams’ explanation that
it filed Adams II “out of an abundance of caution” to preserve its right to review of the
FDIC’s administrative decision does not address the fundamental problem with this
case, which is that Adams failed to exhaust all but one claim. Exhaustion is a
necessary prerequisite to filing suit and regardless of the reasons for filing this
duplicative suit, the Court lacks jurisdiction to hear those claims. See 12 U.S.C.
§ 1821(d)(16)(A) (judicial involvement is only available after exhaustion); FirsTier Bank,
935 F. Supp. 2d at 1117-26. The only remaining claim failed as a matter of law. Id. at
1126. Accordingly, Adams’ explanation that it filed the suit to preserve its right to review
MOTIONS TO STAY
In each of the Rule 59(e) and Rule 60 motions, as well as in additional, separate
motions, Adams requests that this Court stay the proceedings in Adams I and II until it
exhausts its administrative remedies. (See Doc. ## 81, 82, 83, 84, 85, 86.) First, the
Court admonishes Adams for unnecessarily filing redundant pleadings, many of which
advance the exact same arguments. Turning to the substance of Adams’ request, the
Court declines to stay proceedings over which it does not have jurisdiction. See
F.D.I.C. v. Updike Bros., Inc, 814 F.Supp. 1035, 1042 (10th Cir. 1993) (declining to
stay pending exhaustion where the court has otherwise determined it does not have
jurisdiction); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time what it lacks
subject-matter jurisdiction, the court must dismiss the action).
For the foregoing reasons, it is hereby ORDERED that Adams’ Motion to Alter
Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case. No. 12-cv-00240 (Doc. # 81),
Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in Case. No. 12-cv-00240
(Doc. # 82), Motion to Stay Case No. 12-cv-00240 (Doc. # 83), Motion to Alter
Judgment Pursuant to Fed. R. Civ. P. 59(e) in Case No. 11-cv-03404 (Doc. # 84),
Motion to Alter Judgment Pursuant to Fed. R. Civ. P. 60(b) in Case No. 11-cv-03404
(Doc. # 85), and Motion to Stay Case No. 11-cv-03404 (Doc. # 86) are DENIED.
DATED: November 13, 2013
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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