FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTWIND MERANTO, LLC, a Nevada No. 12-15962
limited liability company,
D.C. No. 2:11-cv-01812-PMP-
Plaintiff - Appellant, VCF
v.
MEMORANDUM*
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver on behalf of
Silver State Bank,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Submitted April 9, 2014**
San Francisco, California
Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.
Westwind Meranto, LLC, filed this declaratory judgment action seeking
various forms of relief. The district court dismissed the action for lack of subject
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
matter jurisdiction. “Our review of the district court’s dismissal under Rule
12(b)(1) or Rule 12(b)(6) is de novo.” Pride v. Correa, 719 F.3d 1130, 1133 (9th
Cir. 2013). We affirm.
Westwind failed to exhaust the FDIC’s mandatory administrative claims
process. Intercontinental Travel Mktg., Inc. v. FDIC, 45 F.3d 1278, 1282 (9th Cir.
1994) (“No court has jurisdiction over [a] claim until the exhaustion of this
administrative process.”). The FDIC published notice that any claim against Silver
State Bank must be submitted in writing by the claims bar date of December 10,
2008. Westwind received notice of the receivership before the claims bar date. And
although Westwind filed suit in state court against Silver State Bank on October
23, 2008, it did not submit a claim to the FDIC until July 11, 2011, more than two
and a half years after the claims bar date. Therefore, we lack subject matter
jurisdiction over Westwind’s claims. Id. at 1284 (“We read the claims bar date to
be a jurisdictional requirement.”).
Westwind’s failure to exhaust cannot be excused by the FDIC’s failure to
mail notice, the FDIC’s decision to publish in newspapers rather than on its
website or in a press release, or Westwind’s contention that the FDIC knew or
should have known about its claim based on the state court action. Id. at 1284–86;
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see also 12 U.S.C. § 1821(d)(3). Finally, Westwind has not alleged affirmative
misconduct or intentional disregard of the mail notice requirement. Id. at 1285.
AFFIRMED.
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