Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Resubmitted July 28, 1999.
Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding.
Before REINHARDT, KOZINSKI and FERNANDEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Kenneth Smith, Richard Hoffman, Robert Bateman, William Dalton, Jack Darley, Stanley Hammer, and Robert Lorence appeal the district court's denial of their motion for summary judgment. They contend that the district court erred by applying the doctrine of "adverse domination" under Oregon law to find that the statute of limitations had not run on claims against them by the Federal Deposit Insurance Corporation. We affirm.
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) provides a federal statute of limitations for claims brought by the FDIC as receiver. See 12 U.S.C. § 1821(d)(14). However, the FIRREA statute of limitations does not revive state claims which are already barred by the state statute of limitations when they are acquired by the Resolution Trust Corporation. See FDIC v. McSweeney, 976 F.2d 532, 534 (9th Cir.1992). Thus, if the applicable Oregon statute of limitations ran before the RTC was appointed receiver on January 10, 1990, the FDIC suit is time barred. See Resolution Trust Corp. v. Armbruster, 52 F.3d 748, 750 (8th Cir.1995); Resolution Trust Corp. v. Artley, 28 F.3d 1099, 1102 (11th Cir.1994).
Under Oregon's two-year statute of limitations, claims for negligence and breach of fiduciary duty which originated earlier than two years prior to RTC's appointment as receiver on January 10, 1990, would be time barred. See Or.Rev.Stat. § 12.110(1) (1994). The loans which are the basis for FDIC's suit originated long before January 10, 1988. Consequently, unless the statute was tolled or the claims had not yet accrued, FDIC's claims are barred and the former officers and directors are entitled to summary judgment.
Because the federal courts must apply the state statute of limitations, they must also apply the state tolling provisions. See Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir.1980);cf. De Luna v. Farris, 841 F.2d 312, 314 (9th Cir.1988) ("It is well established law that federal courts must apply not only the appropriate state statute of limitations, but also the applicable state rule for tolling that statute of limitations for actions brought under § 1983.")
FDIC asserted, and the district court found, that FDIC's claims are rescued from the time bar under Oregon's statute of limitations because Oregon courts not only would apply the doctrine of adverse domination, but also would apply the so-called disinterested majority version of that doctrine.
Because the Oregon courts had not expressly ruled on those issues, and because they raised serious questions of state policy, we certified the questions to the Supreme Court of Oregon. See FDIC v. Smith, 83 F.3d 1051 (9th Cir.1996). That court accepted the certification and has now ruled that Oregon would apply the disinterested majority version of the adverse domination doctrine in this case. See FDIC v. Smith, 328 Or. 420, 980 P.2d 141 (1999). The court also indicated that the statute of limitations had not run on the FDIC's contract claim because Oregon's six-year statute of limitations would apply to that claim. Id. at ____, ____ P.2d at ____.
Thus, the district court's decision was correct.
AFFIRMED.