Avery v. Fdic as Receiver for Netbank Business Finance

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM AVERY,
Plaintiff
v.
FEDERAL DEPOSIT INSURANCE Civil Action No. 15-150 (CKK)
CORPORATION, as receiver for NetBank
Business Finance,
Defendant
MEMORANDUM OPINION and ORDER
(August 5, 2015)
On June 29, 2015, the Court dismissed this action for lack of subject matter
jurisdiction. See ECF Nos. 18-19. Subsequently, Plaintiff, pro se, filed two documents
with the Court, which the Court granted leave to file although counsel of record is still
listed on the docket. See ECF Nos. 20-21.
With respect to the document dated July 20, 2015, ECF No. 20, it does not address
the jurisdictional grounds on which the Court dismissed this action. Accordingly, the
Court need not address it further.
With respect to the document dated July 22, 2015, ECF No. 21, Plaintiff does purport
to address the jurisdictional grounds on which the Court dismissed this action. See Mem.
Opinion, ECF No. 19 (dismissing for lack of subject matter jurisdiction). The Court,
therefore, will treat the filing as a motion to alter or amend the judgment under Rule
59(e) and a motion for relief from the judgment under Rule 60(b). Insofar as that filing is
construed as such a motion, for the reasons stated below, that motion is DENIED.
Motions under Rule 59(e) are “disfavored” and the moving party bears the burden of
establishing “extraordinary circumstances” warranting relief from a final judgment.
Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001). Rule 59(e)
motions are “discretionary and need not be granted unless the district court finds that
there is an intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone, 76 F.3d
1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted). Rule 59(e) does not
provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that
could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554
U.S. 471, 485 n.5 (2008) (citation omitted).
Plaintiff does not identify any new evidence or any intervening change of controlling
law. Instead, Plaintiff points to a letter from the Office of Thrift Supervision, dated
October 18, 2007, stating that NetBank was under receivership and reporting that it had
forwarded Plaintiff’s complaint to the FDIC Ombudsman. Plaintiff also points to a
follow-up letter he sent to the FDIC Ombudsman on January 18, 2008. First, of all, it
clear that this document was in Plaintiff’s possession during the prior proceedings in this
case, and Plaintiff cannot claim that this is new evidence. Moreover, these documents
explicitly contradict Plaintiff’s statements earlier in this proceedings that he did not
receive notice of the receivership and that the failure to receive notice justifies relief at
this time. See Pl.’s Opp’n, ECF No. 15, at 4-5. In addition, the Court notes that it is
unclear whether the correspondence that Plaintiff reports would satisfy the statutory
requirements to file a claim with the FDIC. See 12 U.S.C. § 1812(d). In sum, Plaintiff
does not satisfy any of the criteria for relief under Rule 59(e). Accordingly, this is far
from a situation that would give cause for the Court to exercise its discretion to grant
relief from the judgment pursuant to Rule 59(e).
In comparison to the standard under Rule 59(e), “[t]he standards governing Rule
60(b) are even more restrictive.” Kline v. Archuleta, No. CV 10-1802 (RCL), 2015 WL
4064941, at *1 (D.D.C. July 1, 2015). “[I]n most cases, the bar stands even higher for a
party to prevail on a Rule 60(b) motion for relief from judgment, which permits relief
when a party demonstrates fraud, mistake, extraordinary circumstances, or other
enumerated situations.” Uberoi v. E.E.O.C., 271 F. Supp. 2d 1, 2-3 (D.D.C. 2002). For the
same reasons as the Court denies Plaintiff’s motion under Rule 59(e), it also denies
Plaintiff’s motion under Rule 60(b). The Court notes only Plaintiff cannot identify any
fraud that supported this Court’s conclusion that it cannot exercise jurisdiction over this
case; any fraud that Plaintiff alleges with respect to the previous Superior Court
proceedings or with respect to underlying actions of NetBank is immaterial with respect
to the pending request and does not justify relief from the judgment in this case. Although
Plaintiff now claims that the Court is mistaken whether he submitted any filings with the
FDIC, the Court’s conclusion was consistent with Plaintiff’s previous representations.
Any failure to make the Court aware of documents within Plaintiff’s possession lies at
Plaintiff’s doorstop and does not satisfy the requirements of Rule 60(b). Plaintiff does not
satisfy any of the several criteria for relief under this rule.
For all of these reasons, insofar as Plaintiffs’ July 22, 2015, filing is construed as a
motion to alter or amend the judgment under Rule 59(e) or a motion for relief from the
judgment under Rule 60(b), it is hereby ORDERED that the motion is DENIED.
It is further ORDERED that the Clerk of the Court shall mail a copy of this order to
Plaintiff at the following address:
Dr. William Avery
4244 Benning Rd., N.E.
Washington, D.C. 20019
SO ORDERED.
This is a final, appealable order.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge