Fed. Deposit Ins. Corp. v. Nationwide Equities Corp.

• Decision Date: 26 February 2020
• Docket Number: No. 3D17-270,3D17-270
• Citation: 304 So.3d 1240
• Parties: FEDERAL DEPOSIT INSURANCE CORPORATION, etc., Appellant, v. NATIONWIDE EQUITIES CORPORATION, Appellee.
• Court: Florida District Court of Appeals

304 So.3d 1240

FEDERAL DEPOSIT INSURANCE CORPORATION, etc., Appellant,

v.NATIONWIDE EQUITIES CORPORATION, Appellee.

No. 3D17-270

District Court of Appeal of Florida, Third District.

Opinion filed February 26, 2020.

Koleos Rosenberg McMahon P.L., Daniel J. Koleos, and Leonard D. Blumenthal (Fort Lauderdale); Duncan N. Stevens (Arlington, VA), for appellant.

Hodkin Stage, Adam J. Hodkin, and Jon K. Stage (Boca Raton), for appellee.

Before FERNANDEZ, LOGUE¹ , and SCALES² , JJ.

FERNANDEZ, J.

Appellant Federal Deposit Insurance Corporation, as receiver for BankUnited, F.S.B., the bank receiver, appeals from a dismissal of its breach of contract action based on the expiration of the statute of limitations. We affirm.

FACTS AND PROCEDURAL HISTORY

BankUnited, F.S.B. ("BankUnited") and Nationwide Equities Corporation ("Nationwide") entered into a mortgage broker agreement ("MBA"). The MBA included a mandatory forum-selection clause requiring that any action arising therefrom be filed in Miami-Dade County Circuit Court. On May 21, 2009, BankUnited failed and the Federal Deposit and Insurance Corporation ("the FDIC") was appointed as receiver for the bank. Pursuant to the applicable federal statute of limitations, the FDIC had six years from the date of its appointment to commence this action. See 12 U.S.C. § 1821(d)(14)(A)(i)(I) (2013).

On May 18, 2015, three days before the expiration of the six years, the FDIC filed suit in federal court alleging, among other things, breach of contract regarding two loans submitted by Nationwide. See FDIC v. Nationwide Equities Corp., Case 1:15-cv-21872-KMM, 2015 WL 7720633 (S.D.Fla. Nov. 30, 2015) (ECF No. 29) ("federal action"). Claiming that actions brought by the FDIC arise under the laws of the United States, the FDIC invoked federal jurisdiction under 12 U.S.C. § 1819(b)(2)(A) (1994).³ Citing the forum-selection clause in the MBA, Nationwide moved to dismiss the complaint. In its response, the FDIC argued, and Nationwide agreed, that a venue challenge based on a forum-selection clause must be raised within the doctrine of forum non-conveniens ("FNC"). In addressing the "adequate alternative forum" prong of the analysis, Nationwide simply made reference to the parties' venue choice, as per the MBA. In its filings, Nationwide stated that, "[t]he FDIC [would] not be prejudiced or inconvenienced by filing this action in State Court because ... it is the correct forum and the one chosen by the parties."

The federal court dismissed the action on grounds of FNC. In doing so, Chief United States District Judge K. Michael Moore found that,

[the] FDIC-R can reinstate its lawsuit in state court without undue inconvenience or prejudice. FDIC-R attempts to argue that it would suffer prejudice by concluding, again, that this Court's original jurisdiction over the matter renders state court unavailable. FDIC-R's conclusory statement warrants no merit, as discussed supra , state court in Dade County, Florida is an adequate and available alternative forum.

Federal Action at (ECF No. 29 at 6-7).

The FDIC never appealed this ruling to the federal appellate court. Instead, it refiled the action in the circuit court in Miami-Dade County. Nationwide moved for dismissal based on the expiration of the statute of limitations. In response, the FDIC argued that dismissal was improper due to the representations made by Nationwide in the federal action. Notwithstanding, the trial court granted the motion, dismissed the case, and denied the FDIC's request for rehearing.

The FDIC then sought relief from the federal court under Federal Rule of Civil Procedure 60(b)(3) claiming, as it does here, that Nationwide misled the federal court. Chief Judge Moore was not persuaded. In denying the motion, the court found that the FDIC failed to preserve any statute of limitations issues. Specifically, the court concluded,

[The] FDIC made no mention of the statute of limitations running. [It] also argued that the appropriate way to enforce a forum-selection clause is through the doctrine of [FNC], and proceeded to state the standard, analyze the factors set forth therein, and conclude that dismissal was inappropriate. Nationwide replied and addressed these points, and asked that the Court dismiss on the basis of [FNC]. FDIC's argument that "[b]ecause Nationwide made these representations for the first time in its reply brief, the [FDIC] did not have an opportunity to respond" is misleading. Although [the FDIC] did not have the last word, [it] appraised the Court of its arguments on the issue and could have certainly sought leave to file supplemental briefing or requested a hearing.

....

The Court is not persuaded that Nationwide's argument for dismissal on the basis of FNC due to the ... forum-selection clause equates to a misrepresentation as to the availability of the alternative forum. ... Furthermore, to the extent that FDIC argues it did not have a full opportunity to brief the issue of [FNC] because it was first raised in Nationwide's reply to the motion to dismiss, the Court finds this argument disingenuous as well. [The] FDIC could have requested supplemental briefing; it did not. FDIC could have appealed the Order granting the motion to dismiss; it did not.

Id. at (ECF No. 46 at 3-5).

For these, among other reasons, we affirm the trial court's dismissal.

STANDARD OF REVIEW

We review an order granting a motion to dismiss de novo . Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla. 3d DCA 2018). Affirmative defenses, such as the expiration of the statute of limitations, may not ordinarily be considered in a motion to dismiss. Pontier v. Wolfson, 637 So. 2d 39, 40 (Fla. 2d DCA 1994). Rather, they must be pled in the answer to the complaint. Id.

ANALYSIS

The FDIC argues that the trial court erred in dismissing its lawsuit as untimely, as the doctrine of equitable tolling stops the statute of limitations from running when a suit is initially filed in the wrong forum. In its view, the statute of limitations was tolled while the federal action was pending—rendering the Miami-Dade action timely-filed. Along these same lines, the FDIC argues that the doctrine of judicial estoppel bars parties, like Nationwide, from making representations to one court, obtaining a benefit from that position, and later making an inconsistent representation to another court to the detriment of the opposing party. While both equitable remedies are available in certain instances, the application of the same is not warranted here.

"Equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that would otherwise be barred by a limitations period." Machules v. Dep't of Admin., 523 So. 2d 1132, 1133 (Fla. 1988). The doctrine is generally applied where a plaintiff has been misled or lulled into inaction and has, in some extraordinary way, been prevented from asserting his rights, or has timely asserted his rights in the wrong forum. See, e.g., Burnett v. New York Cent. R.R., 380 U.S. 424, 85 S. Ct. 1050, 1055, 13 L.Ed.2d 941 (1965) (emphasis added); see also, Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (focusing on the plaintiff's excusable ignorance of the limitations period). The burden, however, is on the moving party to show that relief is warranted. Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993).

The Machules court applied the tolling doctrine where an employee filed a grievance, following his termination, instead of appealing to the designated administrative agency. The employer, however, acknowledged the grievance and scheduled a hearing for the day after the expiration of the appellate deadline. The employee, a layperson, raised the same claim in a subsequent untimely appeal. Following the decision in Burnett, the court concluded that the plaintiff had acted with reasonable prudence, but was misled by his employer. See Machules, 523 So. 2d at 1132 ; see also, Burnett, 85 S. Ct. at 1054-1055 (applying equitable tolling after concluding that plaintiff failed to file his action in federal courts, "not because he was disinterested, but solely because he felt that his state action was sufficient"). Here, the FDIC suggests that the circumstances here are similar to what occurred in Burnett. Nationwide, on the other hand suggests that this case is distinguishable because of the bargained-for forum-selection clause.

Booth v. Carnival Corp., 522 F.3d 1148 (11th Cir. 2008), a wrongful death action filed by the estate of a deceased passenger, is instructive. The cruise ticket established a one year time limitation for filing suit, and included a forum-selection clause designating the federal court in the Southern District of Florida as the appropriate venue.⁴ Plaintiff sued in circuit court Miami-Dade County, sixteen days before the expiration of the limitation period. Several months later, while the state case was pending, but after the contractual limitation period had run, he filed a second identical complaint in federal court. That case was closed pending the outcome of the state litigation. Meanwhile, in the state case, Carnival filed, and the court denied, a motion to dismiss due to improper venue. Thereafter, the federal action was reopened and Carnival sought a dismissal claiming untimeliness. The federal court denied the motion, and the Eleventh Circuit affirmed, concluding that Booth had, in no way, slept on his rights, because Carnival was well aware—within the limitation period—that Booth was actively pursuing his claim.⁵

Here, relying on Booth, among other cases, the FDIC suggests that its inaction in failing to request that the federal court condition its dismissal on a waiver of statute of limitations was caused by Nationwide's misrepresentations to the federal court. For these reasons, the FDIC urges that equitable estoppel applies. These arguments fail to persuade.

While the remedies sought by the FDIC are available under certain circumstances, such as...