Filed: Nov. 09, 2012
Latest Update: Mar. 26, 2017
Summary: 11-4307-cv Goldblatt, et al. v. National Credit Union Administration UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATAB
Summary: 11-4307-cv Goldblatt, et al. v. National Credit Union Administration UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABA..
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11-4307-cv
Goldblatt, et al. v. National Credit Union Administration
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9th day of November, two thousand twelve.
5
6 PRESENT: RICHARD C. WESLEY,
7 DENNY CHIN,
8 Circuit Judges,
9 DAVID G. LARIMER,
10 District Judge.*
11
12
13
14 MELVIN GOLDBLATT, JOAN LAZEROW,
15 MARK D. FETCHER, GLORIA JOHNSTON,
16 DOUGLAS C. ANTUPIT,
17
18 Plaintiffs-Appellants,
19
20 -v.- 11-4307-cv
21
22 NATIONAL CREDIT UNION ADMINISTRATION,
23
24 Defendant-Appellee.
25
26
27
*
The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
1 FOR APPELLANTS: Joseph M. Barnes, Robert I. Reardon, Jr.,
2 The Reardon Law Firm PC, New London, CT.
3
4 FOR APPELLEE: Conor Kells, Trial Attorney, Sandra S.
5 Glover, Assistant United States Attorney,
6 Stuart F. Delery, Acting Assistant
7 Attorney General, Phyllis J. Pyles,
8 Director, Mary Leach, Assistant Director,
9 for Eric H. Holder, Jr., United States
10 Attorney General, Washington, DC.
11
12 Appeal from the United States District Court for the
13 District of Connecticut (Eginton, J.).
14
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16 AND DECREED that the judgment of the United States District
17 Court for the District of Connecticut is AFFIRMED.
18 Former members of the New London Security Federal
19 Credit Union (“New London”) appeal from a judgment of the
20 United States District Court for the District of Connecticut
21 (Eginton, J.), granting the motion of the National Credit
22 Union Administration (“NCUA”) to dismiss Appellants’ claims
23 for lack of subject matter jurisdiction. The district court
24 determined that Appellants’ action was time-barred pursuant
25 to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
26 2401(b), because Appellants filed their claim more than six
27 months after the NCUA denied their administrative claims.
28 The panel has reviewed the briefs and the record in this
29 appeal and agrees unanimously that oral argument is
2
1 unnecessary because “the facts and legal arguments [have
2 been] adequately presented in the briefs and record, and the
3 decisional process would not be significantly aided by oral
4 argument.” Fed. R. App. P. 34(a)(2)(C). We assume the
5 parties’ familiarity with the underlying facts, the
6 procedural history, and the issues presented for review.
7 We review de novo a district court’s dismissal of an
8 FTCA claim as untimely. See Kronisch v. United States, 150
9 F.3d 112, 120 (2d Cir. 1998). The FTCA’s limited waiver of
10 the United States’ sovereign immunity against tort claims
11 requires the plaintiff to “comply with several strictly
12 construed prerequisites.” Johnson v. Smithsonian Inst., 189
13 F.3d 180, 189 (2d Cir. 1999). At issue here is compliance
14 with the FTCA’s statute of limitations, under which the
15 plaintiff must file her claim against the United States
16 “within six months after the date of mailing . . . of final
17 denial of the claim by the agency to which it was
18 presented.” 28 U.S.C. § 2401(b). Claims filed outside of
19 this window “shall be forever barred.” Id.
20 The district court here properly determined that it
21 lacked subject matter jurisdiction over Appellants’ claims
22 against the NCUA because Appellants filed their complaint
3
1 more than six months after the agency denied their
2 administrative claims. Appellants’ argument that their FTCA
3 claim was timely filed on August 17, 2010, when it moved to
4 add the NCUA as a party-defendant in a separate litigation,
5 is unavailing. The unsuccessful effort to add the NCUA as a
6 party in the other case did not toll the limitations period.
7 Cf. McGregor v. United States, 933 F.2d 156, 161 (2d Cir.
8 1991) (filing an FTCA complaint that was ultimately
9 dismissed for defective service of process did not toll the
10 limitations period and precluded plaintiff from refiling a
11 second complaint), superseded on other grounds, Zapata v.
12 City of N.Y.,
502 F.3d 192 (2d Cir. 2007). After receiving
13 the NCUA’s rejection of their administrative claims on
14 August 11, 2010, Appellants moved to amend their complaint
15 to add the NCUA as a defendant in ongoing litigation over
16 the collapse of New London. The district court denied this
17 request on February 1, 2011.1 At that time, Appellants
18 still had ten days to file a complaint asserting tort claims
1
The court simultaneously granted the NCUA’s motion to
be substituted as plaintiff after determining that the NCUA
was the real party in interest. Goldblatt v. Wells Fargo
Advisors, LLC, No. 3:10CV924, 2011 WL 446896, at *3 (D.
Conn. Feb. 1, 2011). The court also granted the NCUA’s
motion to consolidate the action with the NCUA’s
substantially similar prior filed action. Id.
4
1 against the NCUA within the FTCA’s six-month window.
2 Because Appellants did not file their complaint until March
3 3, 2011, the district court properly deemed it untimely and
4 dismissed for lack of subject matter jurisdiction.
5 Appellants argue in the alternative that they are
6 entitled to equitable tolling of their claim because they
7 pursued their rights with diligence. Regardless of whether
8 equitable tolling is available for FTCA claims,2 Appellants
9 have not satisfied this Court that equitable tolling is
10 appropriate here. “Generally, a litigant seeking equitable
11 tolling bears the burden of establishing two elements: (1)
12 that he has been pursuing his rights diligently, and (2)
13 that some extraordinary circumstance stood in his way.” See
14 A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144
15 (2d Cir. 2011) (internal quotation marks omitted). We are
16 not persuaded that Appellants pursued their rights
17 diligently, and they do not argue that an extraordinary
2
In this Circuit, it is an open question whether
equitable tolling is available for tort claims brought
pursuant to the FTCA. See, e.g., A.Q.C. ex rel. Castillo v.
United States, 656 F.3d 135, 144 n.6 (2d Cir. 2011). Other
circuits are split on this issue. Compare Santos ex rel.
Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009),
with Adams v. United States, 658 F.3d 928, 933 (9th Cir.
2011), and In re FEMA Trailer Formaldehyde Prods. Liab.
Litig., 646 F.3d 185, 189 (5th Cir. 2011).
5
1 circumstance prevented them from filing their complaint
2 against the NCUA before February 11, 2011. This “drastic
3 remedy” is therefore unwarranted. See id. (internal
4 quotation marks omitted). We have considered Appellants’
5 remaining arguments and find them to be without merit.
6 For the foregoing reasons, the judgment of the district
7 court is hereby AFFIRMED.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
6
