Parker's Model T et al v. Silver Club et al

Filing 54

ORDER denying 49 Motion for Reconsideration. Signed by Judge Larry R. Hicks on 6/22/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Before the court is Plaintiffs’ Motion Pursuant to Rule 59 for Reconsideration (#491 ) of this

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PARKER’S MODEL T, et al.,

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Plaintiffs,

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v.

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FEDERAL DEPOSIT INSURANCE
CORPORATION, et al.,

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Defendants.

3:10-CV-00791-LRH-GWF
ORDER

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court’s Order (#48) of February 2, 2012, granting Defendants’ motions to dismiss for lack of

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subject matter jurisdiction and denying leave to amend. Defendant Federal Deposit Insurance

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Corporation’s (“FDIC”) filed an opposition (#51), in which Defendants Phillip Potamitis and

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Ashan S. Perera joined (#52). Plaintiffs did not file a reply.

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A district court may alter or amend a judgment under Rule 59(e) where the court “(1) is

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presented with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,

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Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Here,

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Plaintiffs contend the court erred in denying leave to amend based on the conclusion that

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Refers to the court’s docket entry number.

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Plaintiff’s action is untimely under FIRREA and therefore the court lacks subject matter

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jurisdiction. Plaintiffs argue that the court failed to consider that equitable tolling might extend the

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statute of limitations and that leave to amend therefore should have been granted. This argument

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fails to establish any clear error or manifest injustice in the court’s denial of leave to amend,

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however, as equitable tolling is inapplicable as a matter of law to FIRREA’s statute of limitations,

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which is expressly jurisdictional. See 12 U.S.C. § 1821(d)(13)(D) (“Except as otherwise provided

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in this subsection, no court shall have jurisdiction . . . .”); Marley v. United States, 567 F.3d 1030,

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1035 (9th Cir. 2009) (“If the time limit is ‘jurisdictional,’ we can apply neither equitable estoppel

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nor equitable tolling to save Plaintiff’s case.”); Intercontinental Travel Marketing, Inc. v. FDIC, 45

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F.3d 1278, 1284 (9th Cir. 1994) (“We read the claims bar date [of FIRREA] to be a jurisdictional

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requirement.”); Galvez v. Valley Capital Bank, N.A., 2011 WL 2552729, *4 (D. Ariz. June 28,

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2011) (“[T]his Court cannot exercise its discretion in enlarging, liberally construing, or equitably

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tolling FIRREA’s statue of limitations because subject matter jurisdiction limits are not subject to

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these equitable defenses.”).

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IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Reconsideration (#49) is
DENIED.

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IT IS SO ORDERED.

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DATED this 22nd day of June, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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