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Clark County Bancorporation v. Federal Deposit Insurance Corp.

United States District Court, W.D. Washington, Tacoma

May 18, 2017

CLARK COUNTY BANCORPORATION, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR BANK OF CLARK COUNTY, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, MOTION TO STRIKE, AND MOTION FOR PROTECTIVE ORDER AND GRANTING DEFENDANT'S MOTION TO SET BRIEFING SCHEDULE

          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on Plaintiff Clark County Bancorporation's (“CCB”) motion for summary judgment (Dkt. 96), motion to strike and/or preclude Declaration of David Jones (Dkt. 104), and motion for protective order (Dkt. 105) and Defendant Federal Deposit Insurance Corporation-Receiver's (“FDIC-R”) motion to set briefing schedule (Dkt. 107). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL HISTORY

         On February 10, 2016, CCB filed a Fourth Amended Complaint (“FAC”) asserting one cause of action arising from the FDIC-R's disallowance of CCB's claim for tax refunds. Dkt. 88. On February 24, 2016, FDIC-R answered and asserted four affirmative defenses, including the defense that CCB's claim was untimely. Dkt. 94.

         On December 20, 2016, CCB filed a motion for summary judgment. Dkt. 96. On January 30, 2017, FDIC-R responded and submitted the Declaration of David Jones (“Jones Dec.”) in support of its opposition. Dkts. 100, 101. On March 8, 2017, CCB replied, moved to strike the Jones Dec., and moved for a protective order. Dkts. 102, 104, 105. On March 9, 2017, FDIC-R moved to set a briefing schedule on its motion for summary judgment. Dkt. 107. On March 15, 2017, FDIC-R responded to the motion for protective order, and CCB responded to the motion to set a briefing schedule. Dkts. 108, 110. On March 17, 2017, FDIC-R replied to the motion to set a briefing schedule, and CCB replied to the motion for protective order. Dkts. 111, 112. On March 27, 2017, FDIC-R responded to the motion to strike. Dkt. 113. On March 31, 2017, CCB replied. Dkt. 114.

         II. FACTUAL BACKGROUND

         In 2001, CCB and the Bank of Clark County (“Bank”) existed as a bank holding company and a Washington state-chartered bank. FAC, Exh. D. On August 1, 2001, CCB and the Bank entered into a Tax Allocation Agreement (“TAA”) with CCB as the Parent and the Bank as the Bank Subsidiary. Id. The parties planned to file consolidated tax returns for the 2001 tax year and all future years. Id. Relevant to the instant motion, the plan provides as follows:

In the event Bank Subsidiary incurs a loss for tax purposes, as computed in paragraph 1, Bank Subsidiary shall record a current income tax benefit and receive a refund from Parent in an amount no less than the amount Bank Subsidiary would have been entitled to receive as a separate entity as computed in paragraph 1. Parent shall pay such refund to Bank Subsidiary not later than 30 days after the date Bank Subsidiary would have filed its own return, regardless of whether the consolidated group is receiving a refund.

Id. ¶ 4.

         CCB filed tax returns on behalf of the Bank pursuant to the agreement. On January 16, 2009, the Washington Department of Financial Institutions closed the Bank and appointed the Federal Deposit Insurance Corporation as receiver. Both CCB and the FDIC-R filed amended tax returns for the Bank requesting over nine million dollars in refunds due to losses in the tax years 2008 and 2009. The Internal Revenue Service issued the refunds to FDIC-R. On July 29, 2014, CCB submitted a claim for the refunds. FAC, Exh. B. On August 26, 2014, the FDIC-R rejected the claim. Id., Exh. A. The sole reason given for the disallowance of claim is as follows: “Claim was filed after established Bar date of December 30, 2008. Therefore, the claim is disallowed in the total claimed $9, 682, 280.08 as untimely.” Id. This suit followed requesting review of the claim denial and adjudication of the merits of the claim.

         III. DISCUSSION

         A. Motion to Strike

         “Requests to strike material contained in or attached to submissions of opposing parties shall not be presented in a separate motion to strike, but shall instead be included in the responsive brief, and will be considered with the underlying motion.” Local Rules, W.D. Wash. LCR 7(g).

         In this case, CCB's motion to strike is procedurally improper. Instead of including the motion in the response brief, CCB filed an additional motion. ...


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