United States District Court, E.D. Washington
WESLEY B. AMES, Plaintiff,
RANDALL S. AMES and DARLEEN AMES, Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
O. RICE Chief United States District Judge.
THE COURT is Plaintiff Wesley B. Ames' Motion for
Reconsideration (ECF No. 118). The Court has reviewed the record
and documents therein, and is fully informed. There being no
reason to delay entry of this Order, the hearing with oral
argument set for January 31, 2017 is stricken. For the
reasons discussed below, Plaintiff's Motion is
Court dismissed Plaintiff's causes of action after a
brief bench trial.Plaintiff submitted a Motion for
Reconsideration (ECF No. 118), mostly asserting new arguments
and evidence not raised at trial, while admitting Plaintiff
failed to have controlling case law prepared for trial.
See ECF No. 118 at 3. Plaintiff challenges the
Court's dismissal of Plaintiff's causes of action
(i.e. breach of contract, quasi-contract, fraud, and
intentional infliction of emotional distress), except for the
claim of conversion. ECF No. 118 at 2.
Fed. R. Civ. Pro 59(e) allows a party to move the court to
alter or amend a judgment upon reconsideration, Rule 59(e) is
an “extraordinary remedy” that is “to be
used sparingly in the interests of finality and conservation
of judicial resources.” Kona Enterprises, Inc. v.
Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)
(citation omitted). “[A] motion for reconsideration
should not be granted, absent highly unusual circumstances,
unless the district court is presented with newly discovered
evidence, committed clear error, or if there is an
intervening change in the controlling law.” 389
Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
Cir. 1999) (citation omitted).
59(e) motion may not be used to raise arguments or
present evidence for the first time when they could
reasonably have been raised earlier in the litigation.
Kona Enterprises, 229 F.3d at 890 (citation
omitted). Whether to grant a motion for reconsideration is
within the sound discretion of the court. Navajo Nation
v. Confederated Tribes and Bands of the Yakama Nation,
331 F.3d 1041, 1046 (9th Cir. 2003) (citation omitted).
Breach of Contract
trial, the Court questioned whether the underlying
contract was a pay on demand loan, and thus under
California law the statute of limitations runs from the date
of consummation. After the Court gave Plaintiff time to
consider the law, Plaintiff asserted the loan is a pay when
able loan. Plaintiff then represented to the Court that the
evidence would show Defendants were able to pay, at least
partially, in the year 2006 to 2009, and that Defendants
actually offered to pay. Thus, the Court ruled that the
statute of limitations has clearly run. ECF No. 116 at 6.
review of the underlying e-mail chain (submitted by Plaintiff
as an exhibit at trial) discussing the contract in dispute
shows that repayment was conditioned on the Lithuanian
business having “sufficient cash reserves.” Ex. 1
at 2. Plaintiff submitted a set of correspondences between
Defendants and a third party, which took place sometime in
the year 2003, where Randall Ames stated the business was
profitable. ECF Nos. 92 at 3; 101 at 124. As such, in the
alternative, the condition to repayment was met sometime in
the year 2003, at the latest.
follows the majority rule in holding that repayment of a
“pay when able” loan is conditioned on the actual
ability to pay the loan, as opposed to imposing a reasonable
time to pay. Van Buskirk v. Kuhns, 129 P. 587, 588
(Cal. 1913) (citation omitted). “Under the majority
rule, a promise to pay ‘when able' is a conditional
promise and thus no cause of action exists until an actual
ability to pay has been shown, regardless of whether the
creditor is aware of the debtor's ability to pay.”
O'Neil v. Estate of Murtha, 89 Wash.App. 67, 70
(1997) (emphasis added) (citing Van Buskirk v.
Kuhns, 129 P. 587). As such, the statute of limitations
began to run when that condition was met in
2003. The statute of limitations bars this
claim, as ten years passed.
Plaintiff never raised the argument at trial, Plaintiff, in
his Motion for Reconsideration, contends the statute of
limitations on a pay when able loan begins to run only when
the debtor is fully able to repay the
loan. ECF No. 118 at 7. Plaintiff presents no
authority for the proposition that only full ability
to repay triggers the statute of limitations. See,
e.g., Van Buskirk v. Kuhns, 129 P. at 588
(no allegation that Defendants were able to pay, so no
beginning of the statute of limitations), Horacek v.
Smith, 199 P.2d 929 (Cal. 1948) (discussing commencement
of statute of limitations without distinguishing between
partial or full ability to pay), and Fuller v.
White, 201 P.2d 16, 19 (1948) (no proof of ability to
pay). Regardless, Plaintiff should have raised this argument
at trial, but he was self-admittedly not prepared with the
controlling case law nor when asked if he had any additional
evidence, did he present any evidence on this matter.
Kona Enterprises, 229 F.3d at 890 (citation
it were proper to now consider Plaintiff's argument, the
argument fails. Importantly, none of the cases reviewed by
this Court concerning a “pay when able” loan
distinguishes between the debtor's ability to pay in full
or part. This suggests partial payment triggers the statute
of limitations. This reading is also in line with the
rationale behind the statute of limitations in
“promoting parties to act on apparent claims before
they become stale.” See When Statute of Limitations
Commences to Run Against Promise to Pay Debt “When
Able, ” “When Convenient, ” “Or the
Like, ” 67 A.L.R.5th 479 (Originally published in
1999). Moreover, if full ability to pay were required,
creditors would not be able to collect on such a loan even if
the debtor ...