F.D.I.C. v. Klinack

17 F.3d 394, 1994 U.S. App. LEXIS 9309, 1994 WL 55543

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1994
• Docket: 92-35608
• Status: Unpublished

Opinion

17 F.3d 394

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for
Citizens Savings & Loan Association, Plaintiffs-Appellees,
v.
KLINACK, an Oregon partnership; Hugh Richard White; Bruce
E. Douglas; Jack C. Bailes; Michael M. Truax,
Defendants-Appellants.

No. 92-35608.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1994.
Decided Feb. 24, 1994.

Before: POOLE and TROTT, Circuit Judges, and KING, District Judge*.

MEMORANDUM**

Klinack appeals a grant of summary judgment in favor of the FDIC. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we reverse and remand.

The district court ruled that Klinack's affirmative defense and counterclaim were barred by FIRREA's statute of limitations. See 12 U.S.C. Sec. 1821(d). However, on appeal, the FDIC conceded the district court erred. An emergency regulation promulgated on March 24, 1989 required claimants to wait 180 days after filing their claim with the FSLIC before filing suit. Klinack's claim was filed with the FSLIC on August 11, 1988, and it did not assert its affirmative defense and counterclaim until 1991. The FDIC concluded:

Klinack, therefore, complied with the requirements of the emergency regulation. FDIC/Receiver trial counsel was not aware of the application of the emergency regulation to this case. Accordingly, the FDIC/Receiver abandons the statute of limitations ground for its motion for summary judgment.

Appellee's Brief at 18 n. 5. We agree with FDIC that the district court erred in granting summary judgment based on the statute of limitations.

FDIC urges we affirm summary judgment on other grounds. "Summary judgment may be upheld on a different ground from the ground on which the district court relied." First Pacific Bancorp, Inc. v. Bro, 847 F.2d 542, 545 (9th Cir.1988) (emphasis added). However, in light of the complexity of the issues raised in this appeal, we decline FDIC's invitation to consider its alternative arguments. We would be ill-advised to address these arguments without the careful and thorough consideration that the district court can provide.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

* The Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3