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Ames v. Ames

United States District Court, E.D. Washington

January 23, 2017

WESLEY B. AMES, Plaintiff,


          THOMAS O. RICE Chief United States District Judge.

         BEFORE THE COURT is Plaintiff Wesley B. Ames' Motion for Reconsideration (ECF No. 118).[1] 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 DENIED.


         The Court dismissed Plaintiff's causes of action after a brief bench trial.[3]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.


         Although 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).

         A Rule 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).


         A. Breach of Contract

         At trial, the Court questioned whether the underlying contract[4] 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.

         A 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.

         California 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.[5] The statute of limitations bars this claim, as ten years passed.

         Although 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.[6] 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 omitted).

         Even if 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 ...

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