The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING WITH PREJUDICE DEFENDANT'S MOTION TO DISMISS FOR LACK OF JUDISDICTION [doc. #10]
Defendant FDIC, as the Receiver for Washington Mutual Bank, FA, move to dismiss this action for lack of jurisdiction. The motion has been fully briefed and is considered on the papers submitted without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Defendant's motion is based on plaintiff's failure to exhaust the statutory claims procedure. Plaintiff argues, however, that he did file a timely claim with the FDIC or alternatively, the FDIC should be equitable estopped from asserting the jurisdictional bar.
Plaintiff filed his action against Washington Mutual in the Superior Court of the State of California for the County of San Diego. After the complaint was filed, Washington Mutual failed as a financial institution and was taken over by the federal government with the FDIC appointed as the Receiver. The FDIC removed the action to this Court.
When the FDIC is appointed as Receiver, 12 U.S.C. Section 1821(d)(13)(D) precludes jurisdiction of any court 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.
As result of this statute, Courts lack jurisdiction over a claimant's claim until the claimant exhausts the administrative claims process as stated in 12 U.S.C. Section 1821(d). Henderson v. Bank of New England, 986 F.2d 319, 320-21 (9th Cir. 1993). However, judicial review is available after the administrative process is completed, as provided in 12 U.S.C. Section 1821(d)(6)(a). McCarthy v. F.D.I.C., 348 F.3d 1075, 1078 (9th Cir. 2003).
As required by 12 U.S.C. Section 1821(d)(3), the FDIC published notice regarding the filing of claims and set April 22, 2009 as the claims bar date. If a claim is not timely filed, it must be denied. 12 U.S.C. § 1821(d)(5)(C)(i). An untimely claim may be considered by the FDIC if the claimant shows he "did not receive notice of the appointment of the receiver in time to file such claim before [the claim bar date]; and  such claim is filed in time to permit payment of such claim." Id. § 1821(d)(5)(C)(ii).
As noted, if plaintiff failed to exhaust the mandatory administrative claims process, the Court lacks subject matter jurisdiction of plaintiff's claims. Plaintiff contends, however, that he timely filed an administrative claim sufficient to satisfy the Federal Tort Claims Act ("FTCA") requirements, the FDIC is bound by its counsel's representations, and the claims requirement is not applicable because the litigation was underway at the time of the appointment of the FDIC as Receiver.
1. Was the Claim Timely Submitted?
Plaintiff contends that the FDIC's counsel made an affirmative promise to present plaintiff's claim to the FDIC. But plaintiff also states that he submitted a "claim following the format requested by the FDIC," but ...