United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION (DOC. NO. 74)
Anthony J. Battaglia United States District Judge.
before the Court is Plaintiff Christopher Salem's
(“Salem”) motion for reconsideration of the
Court's order dated December 14, 2016
(“Order”), which granted motions to dismiss filed
by Defendants Federal Deposit Insurance Corporation as
Receiver for La Jolla Bank, FSB (“FDIC-R”) and
the United States of America (“United States”)
(collectively, “Defendants”) and denying
Salem's motion for leave to file an amended complaint.
(Doc. No. 74.) Dedendants oppose the motion. (Doc. Nos. 76,
77.) Having reviewed the parties' legal arguments in
light of controlling authority, and pursuant to Local Civil
Rule 7.1.d.1, the Court finds the matter suitable for
disposition without oral argument. Accordingly, the hearing
currently set for May 4, 2017, at 2:00 p.m. is hereby
VACATED. For the reasons set forth below, the Court DENIES
order dismissing Salem's complaint with prejudice and
denying him leave to file an amendment, the Court
exhaustively summarized this case's factual and
procedural background. (Doc. No. 68.) See Salem v.
F.D.I.C., No. 15-CV-1114-AJB-BGS, 2016 WL 7229424 (S.D.
Cal. Dec. 14, 2016). The Court assumes familiarity with that
Order and will accordingly not recite the facts here. In
short, this lawsuit is predicated on purported misconduct of
the FDIC-R (and through the FDIC-R's actions, the United
States) throughout the foreclosures of Salem's two
Hawaii-based properties and subsequent multiple lawsuits
stemming from those foreclosures. The FDIC-R, along with
other entities whose conduct Salem seeks to impute to the
FDIC-R, is alleged to have committed fraud against, made
misrepresentations to, and concealed documents from Salem.
instituted this lawsuit on May 18, 2015. (Doc. No. 1.) After
having a prior iteration of the complaint dismissed, Salem
filed a third amended complaint (“TAC”) on
February 18, 2016. (Doc. No. 37; see Doc. Nos. 5, 6,
32.) In the TAC, Salem asserted the Court has subject matter
jurisdiction over this dispute by virtue of the Federal Tort
Claims Act (“FTCA”). (Doc. No. 37 ¶ 5.)
Defendants moved to dismiss the TAC on the basis of lack of
subject matter jurisdiction and failure to state a claim
under Rule 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. (Doc. Nos. 40, 60.) After the FDIC-R filed
its motion to dismiss, but before the United States filed its
motion, Salem filed a motion for leave to file a fourth
amended complaint (“FAC”). (Doc. No. 58.) The
parties fully briefed all three motions. (Doc. Nos. 47, 48,
considering the parties' arguments, the Court dismissed
Salem's TAC for lack of subject matter jurisdiction.
(Doc. No. 68 at 6-10.) The Court concluded it could not
entertain Salem's claims against the United States
because the FTCA's limited waiver of the United
States' sovereign immunity does not extend to claims
arising out of misrepresentation, fraud, or deceit.
(Id. at 8-9.) The Court further concluded it could
not exercise subject matter jurisdiction over the FDIC-R
because the FTCA “only allows claims against the United
States. . . . [A]n agency itself cannot be sued
under the FTCA.” (Id. at 7 (quoting
F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir.
1998).) The Court finally concluded permitting Salem to file
the FAC would be futile because the proposed amendment failed
to cure the deficiencies that served as the basis for the
Court's dismissal, notwithstanding having the benefit of
the FDIC-R's motion to dismiss on the docket prior to
Salem filing his motion for leave to amend. (Id. at
the Court's ruling has resulted in a final judgment or
order, a motion for reconsideration may be based either on
Rule 59(e) (motion to alter or amend judgment) or Rule 60(b)
(motion for relief from judgment). See Sch. Dist. No. 1J,
Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993). A motion for reconsideration is treated as a
motion to alter or amend a judgment under Rule 59(e) if it is
filed within 28 days of entry of judgment; otherwise, it is
treated as a Rule 60(b) motion for relief from a judgment or
order. See Am. Ironworks & Erectors, Inc. v. N. Am.
Constr. Corp., 248 F.3d 892, 898- 99 (9th Cir. 2001).
59(e) provides that a court may alter or amend the judgment
after the judgment's entry. “[T]he district court
enjoys considerable discretion in granting or denying [a Rule
59(e)] motion.” Allstate Ins. Co. v. Herron,
634 F.3d 1101, 1111 (9th Cir. 2011) (quoting McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en
banc) (per curiam)). However, because “the rule offers
an extraordinary remedy, [it should] be used sparingly in the
interests of finality and conservation of judicial
resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and
internal quotation marks omitted). As such, a Rule 59(e)
motion generally should not be granted absent highly unusual
circumstances, 389 Orange St. Partners v. Arnold,
179 F.3d 656, 665 (9th Cir. 1999), such as an intervening
change in controlling law, the availability of newly
discovered or previously unavailable evidence, or the need to
correct an error or prevent a manifest injustice,
Allstate Ins. Co., 634 F.3d at 1111; see also
McDowell, 197 F.3d at 1255 n.4 (finding no abuse of
discretion “merely because the underlying order is
erroneous, rather than clearly erroneous”).
a district judge may provide relief from final judgment under
Rule 60(b) if the moving party can show “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud . . ., misrepresentation, or
misconduct by an opposing party; (4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.”
United Nat'l Ins. Co. v. Spectrum Worldwide,
Inc., 555 F.3d 772, 780 (9th Cir. 2009) (quoting Fed. R.
Civ. Pro. 60(b)) (alterations in original).
60(b) motion, however, is “not a vehicle to reargue [a]
motion or to present evidence which should have been raised
before.” United States v. Westlands Water
Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001)
(citation omitted). “A party seeking reconsideration
must show more than a disagreement with the Court's
decision, and recapitulation of the cases and arguments
considered by the court before rendering its original
decision fails to carry the moving party's burden.”
Id. (citation and internal quotation marks omitted).
Ultimately, motions for reconsideration are committed to the
district court's discretion. Navajo Nation v.
Confederated Tribes & Bands of the Yakama Indian
Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).
makes multiple requests in his motion for reconsideration.
First, he asserts the Court's ruling relating to subject
matter jurisdiction is incorrect because (1) the FDIC
administrative rule codified at 12 U.S.C. §
1821(d)(6)(A)(ii) provides for judicial review of the
agency's disallowance of a claim; and (2) the Court
erroneously relied on the FDIC-R's “bar date”
on his administrative claim to foreclose his right to claim