JOHN W. LUNGSTRUM, District Judge.
This matter comes before the Court on Plaintiff's Motion for Entry of Partial Final Judgment or Certification for Interlocutory Appeal (Doc. # 223). For the reasons set forth below, the Court
On December 27, 2013, the Court dismissed as untimely plaintiff's claims against the Morgan Stanley defendants with respect to 20 of the 21 certificates referenced by plaintiff in its complaint. See NCUAB v. Morgan Stanley & Co., 2013 WL 6842596 (D. Kan. Dec. 27, 2013). In making that ruling, the Court reaffirmed and applied various previous rulings in a related case, including its ruling that the applicable limitations period was triggered by plaintiff's appointment as conservator for a credit union and not by its later appointment as liquidator; and its ruling that the limitations period could not be extended by a tolling agreement. See id. at *1 (citing NCUAB v. Credit Suisse Sec. (USA) LLC, 939 F.Supp.2d 1113 (D. Kan. 2013)). With respect to the latter ruling, the Court had held that plaintiff could not alternatively rely on the doctrine of equitable estoppel to avoid dismissal of certain claims as untimely. See Credit Suisse, 939 F. Supp. 2d at 1126. The Tenth Circuit subsequently issued its ruling in NCUAB v. Barclays Capital Inc., 785 F.3d 387 (10th Cir. 2015), another related case, and it held that although the limitations period could not be extended by agreement, plaintiff was not precluded from asserting equitable estoppel in that case based on a separate express promise by the defendant not to assert a limitations defense based on the period of time encompassed by the agreement. See id.
Plaintiff then sought reconsideration in this case of the Court's ruling concerning equitable estoppel in light of the Tenth Circuit's decision in Barclays. On May 27, 2015, the Court denied the motion and reaffirmed its prior dismissal of claims against the Morgan Stanley defendants as untimely. See NCUAB v. UBS Sec., LLC, 2015 WL 3407863, at *4-5 (D. Kan. May 27, 2015). In so ruling, the Court relied on the fact that plaintiff's tolling agreement with these defendants did not include the kind of express promise on which the Tenth Circuit relied in Barclays. See id.
Plaintiff seeks to appeal immediately the Court's rulings in this case concerning equitable estoppel and the use of the trigger date of plaintiff's appointment as conservator. Thus, by the present motion, plaintiff requests that the Court either enter final judgment on the dismissed claims pursuant to Fed. R. Civ. P. 54(b) or certify the relevant orders for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Fed. R. Civ. P. 54(b) provides in relevant part as follows:
See id. This rule "preserves the historic federal policy against piecemeal appeals—a policy that promotes judicial efficiency, expedites the ultimate termination of an action and relieves appellate courts of the need to repeatedly familiarize themselves with the facts of a case." See Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001) (citation and internal quotation omitted).
See id. at 1242 (citations and internal quotations omitted).
See Stockman's Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (citations and internal quotations omitted).
The Court first addresses whether its dismissal orders represent final orders for purposes of Rule 54(b). The parties agree that the Tenth Circuit set forth the governing standard for this inquiry in Jordan v. Pugh, 425 F.3d 820 (10th Cir. 2005), in which the court stated as follows:
See id. at 827 (citations and internal quotations omitted).
Plaintiff argues that the Court's dismissal of claims based on certain certificates should be considered a final order under Rule 54(b). Plaintiff argues that its claims are based on separate representations and documents for each certificate, and that it seeks a separate recovery for each certificate. Plaintiff concedes that there may be facts that relate to multiple certificates, but it nonetheless argues that claims may be sufficiently separate despite a common factual predicate. See McKibben v. Chubb, 840 F.2d 1525, 1529 (10th Cir. 1988) (rejecting argument that Rule 54(b) certification was improper despite common factual predicate for claims). Plaintiff also notes that the issues that it intends to raise on appeal (regarding equitable estoppel and measuring the limitations period from the date of appointment as liquidator) will not arise with respect to the remaining claims based on one certificate.
The Court is not convinced, however, that the dismissed claims are sufficiently distinct for purposes of this rule. Plaintiff does not dispute that its claims based on the different certificates are related factually, are based on identical legal theories, and involve some of the same alleged misrepresentations and omissions—indeed, plaintiff insists that efficiency is best served by avoiding separate trials for claims based on different certificates. Thus, although a separate recovery is sought for each certificate, the claims based on different certificates are not entirely distinct.
Moreover, as defendants point out, if plaintiff were permitted to appeal the dismissal of these claims at this time, defendants would be entitled to raise all previously-litigated issues relating to the timeliness of the claims, as well as other bases for dismissal raised in their motion to dismiss—which issues would require the appellate court to examine facts underlying plaintiff's claims. Plaintiff insists that the likelihood is low that defendants would raise other issues or that the Tenth Circuit would consider such issues, but such speculation cannot overcome the fact that a present appeal could require the Tenth Circuit to consider issues that apply also to the claims remaining for trial. Plaintiff also insists that the two possible appeals would not involve precisely the same legal issues (based on the same standards of review) because they would occur at different stages in the litigation. Nonetheless, the Tenth Circuit has stressed that the policy of avoiding piecemeal appeals "relieves appellate courts of the need to repeatedly familiarize themselves with the facts of a case," see Oklahoma Turnpike Auth., 259 F.3d at 1241, and a present appeal could create a situation in which the Tenth Circuit would indeed need to familiarize itself with the facts of this case multiple times. Accordingly, the Court is not persuaded that entry of a final judgment under Rule 54(b) would represent the necessary strict adherence to the rule's requirement of a final order.
The Court also does not agree that there is no just reason for delay here, as plaintiff has not identified any "undue hardship" or special circumstance that justifies an immediate appeal. Plaintiff argues that difficulties in obtaining loan files after a successful appeal will increase with the passage of time. Defendants have offered to preserve any such evidence relating to the dismissed claims, however, and plaintiff has not disputed that such preservation relieves any such possible prejudice. Plaintiff's only other argument is that the dismissed claims represent 97 percent of the total recovery sought by plaintiff in this suit, and that an immediate appeal could avoid the necessity of two trials. The specter of multiple trials arises whenever there is a partial dismissal, however, and such a possibility therefore does not make this case sufficiently extraordinary to justify an immediate appeal under Rule 54(b). Plaintiff has not shown that this case presents circumstances sufficient to overcome the policy of avoiding piecemeal appeals.
Plaintiff also seeks certification of the Court's dismissal orders pursuant to 28 U.S.C. § 1292(b), which provides as follows:
See id. Upon such certification by the district court, the Court of Appeals may or may not decide to permit the interlocutory appeal in its discretion. See id. Certification under this section is within the discretion of the district court. See Swint v. Chambers County Comm'n, 514 U.S. 35, 47 (1995). In deciding whether to exercise its discretion under Section 1292(b), the Court is mindful that "there is a long-established policy preference in the federal courts disfavoring piecemeal appeals." See Conrad v. Phone Directories Co., 585 F.3d 1376, 1382 (10th Cir. 2009).
The Court concludes that there is not "substantial ground for difference of opinion" concerning the Court's rulings in this case on equitable estoppel and the trigger date for the limitations period. In this regard, the Court finds instructive the following standards and arguments cited by plaintiff in a related case in opposing certification of certain orders by this Court:
See NCUAB v. RBS Sec., Inc., No. 11-2340 (D. Kan.), Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Certify an Appeal Pursuant to 28 U.S.C. § 1292(b) at 3-5, 4 n.1, 11, 16-17 (Doc. # 122) (citations and internal quotations omitted).
In arguing that there is substantial ground for a difference of opinion concerning the Court's rejection of plaintiff's equitable estoppel theory in this case, plaintiff suggests that, as a general matter, equitable estoppel may be found even in the absence of an express promise. Plaintiff notes that in Barclays the Tenth Circuit did not state that there may not be equitable estoppel in the absence of such a promise. Nevertheless, as this Court explained in its denial of plaintiff's reconsideration motion, the Tenth Circuit emphasized and relied on the distinction between a tolling agreement and a separate promise not to rely on a certain time period. See NCUAB v. UBS Sec., LLC, 2015 WL 3407863, at *4. Plaintiff has not identified any contrary authority on this issue,
The Court reaches the same conclusion with respect to the issue of the trigger date. The Court previously explained that the plain language of 12 U.S.C. § 1787(b)(14)(B) offers two possible dates for starting the limitations period, one of which is the date of appointment as conservator or liquidator, and that plaintiff therefore triggered the limitations period by its appointment as conservator. See Credit Suisse, 939 F. Supp. 2d at 1124-25. Plaintiff cites UMLIC-Nine Corp. v. Lipan Springs Development Corp., 168 F.3d 1173 (10th Cir. 1999), in which the Tenth Circuit held that the limitations period under a similar statute could be reset with the beginning of a separate receivership. See id. at 1177-79. In that case, however, the Tenth Circuit was not asked to construe the particular statutory language at issue or to address an appointment as conservator followed by an appointment as liquidator for the same entity. Thus, the holding of UMLIC-Nine does not bear on the issue decided by this Court.
Plaintiff also notes that the Tenth Circuit has interpreted limitations statutes to preserve plaintiff's ability to bring claims to the greatest extent. The statute must be applied in accordance with its plain terms, however, and plaintiff has not identified any court that has interpreted the statute as plaintiff requests. Therefore, the Court cannot conclude that there is substantial ground for a difference of opinion on this issue. Accordingly, the Court denies plaintiff's request for certification under Section 1292(b).
IT IS THEREFORE ORDERED BY THE COURT THAT Plaintiff's Motion for Entry of Partial Final Judgment or Certification for Interlocutory Appeal (Doc. # 223) is hereby
IT IS SO ORDERED.