Double J. Operating Co. v. Nichols (In Re Double J. Operating Co.) , 98 F. App'x 279 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 23, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-60379
In re: DOUBLE J. OPERATING COMPANY, INC.
Debtor
DOUBLE J OPERATING COMPANY, INC.; JOHN B. ECHOLS
Plaintiffs-Appellants,
v.
MARY MAUDE BIRMINGHAM NICHOLS, Executrix of the Estate of Robert
B. Nichols, Jr.; MARY ASHLEY NICHOLS, Executrix of the Estate of
Robert B. Nichols, Jr.; FIDELITY AND DEPOSIT COMPANY OF MARYLAND
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi, Jackson Division
(99-CV-181-BR)
Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
This is an appeal following our remand to district court for
consideration of whether the applicable limitations period had
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
expired, and, in the alternative, whether equitable tolling applied
to the facts of this case.1 On remand, the district court
determined that the limitations period for Double J’s 11 U.S.C.
§322(d)claim had in fact expired and that equitable tolling did not
operate to save the claim. After reviewing the record, we affirm
on both counts.
Whether the limitations period has expired in this case is
a legal issue.2 Accordingly, our review of the district court’s
determination is de novo.3 But, the district court’s decision that
equitable tolling is inapplicable to the facts of this case is
subject to a highly deferential abuse of discretion review.4
The parties agree that claims brought under 11 U.S.C. § 322(d)
are subject to a two-year limitations period that begins to run the
day that a trustee is discharged by the bankruptcy court. The
record shows that the trustee in this case was discharged on March
7, 1994. The record also shows no indication that a complaint
stating a 11 U.S.C. § 322(d) claim against the trustee has ever
been filed. Double J argues that because it filed a motion to
1
See In re Double J. Operating Co., Inc., No. 00-60764 (5th
Cir. 2001)(per curiam).
2
See Clymore v. United States, 217 F.3d 370, 373 (5th Cir.
2000)(citing Hinsley v. Boudloche, 201 F.3d 638, 644 (5th Cir.
2000)).
3
See id.4
Cousin v. Lensing, 310 F.3d 843, 847-48 (5th Cir. 2002),
cert. denied, 123 S. Ct. 2277, 156 L. Ed. 2d 136 (2003).
2
reopen with the bankruptcy court within the two-year limitation
period that had a § 322(d) complaint attached, the limitation
period did not expire. Because we agree with the district court
that the motion did not evidence an intention to file the
attachment at the time the motion was filed, a motion to reopen is
not an administrative prerequisite to filing a § 322(d) case, and
no complaint was filed, we conclude that the limitations period has
in fact expired in this case.
Additionally, after reviewing the record, we find no abuse of
discretion in the district court’s determination that the passage
of time and absence of extraordinary circumstances beyond Double
J’s control preclude the application of equitable tolling in this
case.
AFFIRMED.
3