United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT, MOTION TO STRIKE, AND MOTION FOR PROTECTIVE ORDER
AND GRANTING DEFENDANT'S MOTION TO SET BRIEFING
BENJAMIN H. SETTLE United States District Judge.
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:
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.
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.
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.
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.
Motion to Strike
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).
case, CCB's motion to strike is procedurally improper.
Instead of including the motion in the response brief, CCB
filed an additional motion. ...