APPELLANT’S OPENING BRIEF · 2016-02-02 · of cnmi’s consumer protection act 38 a....

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NO. 13-17434

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________

)

DONALD G. FLORES, )

) APPEAL FROM

Plaintiff-Appellant, ) D.C. No. 1:11-CV-00022

) U.S. District Court For the

vs. ) Northern Mariana Islands

)

FIRST HAWAIIAN BANK; )

UNION BANK OF CALIFORNIA, )

)

Defendant-Appellee. )

______________________________ )

APPELLANT’S OPENING BRIEF

JUAN T. LIZAMA, Esq.

Attorney at Law

Law Office of Lizama

P.O. Box 501508

Saipan, MP 96950

Tel. (670) 234-7220/485-2662

Fax No. (670) 234-9093

Attorney for Plaintiff Donald G. Flores

Case: 13-17434, 03/07/2014, ID: 9006098, DktEntry: 7-1, of 69

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TABLE OF CONTENTS

Table of Contents 2

Table of Citations

Cases 6

Other Authorities 10

Statement of Jurisdiction 12

Statement of Issues 13

Reviewability and Standard of Review 14

Statement of the Case 15

Statement of the Facts 16

Argument

I. CNMI’S STATUTE OF LIMITATIONS REQUIRES THAT

A DEMAND, WITH RESPECT TO A CERTIFICATE OF

DEPOSIT, MUST BE MADE IN ORDER FOR THE

STATUTE OF LIMITATIONS TO START RUNNING 19

A. COMMONWEALTH LAW PROVIDES THAT THE

STATUTES OF LIMITATIONS FOR ALL OF

PLAINTIFF’S CLAIMS WERE TOLLED WHEN

UNION BANK LEFT THE COMMONWEALTH IN

2001 19

B. THE DISTRICT COURT ERRED IN NOT APPLYING

THE PARTIES’ WRITTEN AGREEMENT AS TO

DETERMINE DEMAND FOR PAYMENT WAS TO

BE MADE 21


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C. THE DISTRICT COURT ERRED BY INTERPRETING

THE MEANING OF “DEMAND” UNDER

COMMONWEALTH UCC SEC. 3122(2) BY

RELYING ON CASE LAW THAT CONSTRUES

STATUTES THAT ARE NOT ANALOGOUS TO THE

COMMONWEALTH UCC 25

D. THE DISTRICT COURT ERRED BY FAILING TO

CERTIFY THE KEY ISSUE OF WHAT

CONSTITUTES A ‘DEMAND’ UNDER

COMMONWEATH UCC SEC. 3122(2) TO THE

COMMONWEALTH SUPREME COURT 30

E. THE DISTRICT COURT ERRED BY DETERMINING

GENUINE AND MATERIAL FACTS REGARDING

WHETHER PLAINTIFF HAD ASSERTED HIS

RIGHTS FOR A RETURN OF HIS MONEY 33

19

F. THE DISTRICT COURT FAILED TO EXAMINE THE

SCANT RECORD IN A LIGHT FAVORABLE TO

PLAINTIFF FAVOR OR MAKE REASONABLE

INFERENCES IN PLAINTIFF’S FAVOR 34

II. THE STATUTES OF LIMITATIONS ON THE

PLAINTIFF’S CLAIMS FOR FRAUDULENT

CONCEALMENT, NEGLIGENCE, AND VIOLATION

OF CNMI’S CONSUMER PROTECTION ACT 38

A. DEFENDANT’S FRAUDULENT CONCEALMENT

OF FACTS CRITICAL TO PLAINTIFF’S TORT

AND CONSUMER PROTECTION ACT CLAIMS

TOLLED ACCRUAL OF THOSE CLAIMS 38

III. PLAINTIFF’S CLAIMS ARE AT LAW AND NOT IN

EQUITY 45


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A. THE DISTRICT COURT ERRONEOUSLY APPLIED

THE DOCTRINE OF LACHES TO PLAINTIFF’S

CLAIMS WHICH ARE AT LAW AND NOT IN

EQUITY 45 33

B. EVEN IF THE DOCTRINE OF LACHES IS APPLIED

TO PLAINTIFF’S CLAIMS AT LAW, THOSE

CLAIMS WERE FILED WITHIN THE ANALOGOUS

LIMITATIONS PERIOD, DEFEATING ANY

PRESUMPTION OF UNDUE DELAY 48

C. THE DISTRICT COURT ERRED BY WEIGHING

AND DECIDING CRITICAL, DISPUTED FACTS IN

THE CONTEXT OF A MOTION FOR SUMMARY

JUDGMENT 49

D. APPLICATION OF LACHES IS IMPROPER

BECAUSE PLAINTIFF’S DELAY WAS

REASONABLE AND DEFENDANT HAS NOT BEEN

PREJUDICED BY THE LAPSE OF TIME 50

IV. THE COURT ABUSED ITS DISCRETION WHEN IT

AWARDED ATTORNEY’S FEES TO DEFENDANT

ON ITS MOTION TO COMPEL BECAUSE

DEFENDANT DID NOT PREVAIL ON THAT

MOTION 52

39

CONCLUSION 54

ADDENDUM 55

(a) 2 CMC §4991 56

(b) 2 CMC §4992 57

(c) 4 CMC §§5101, 5110 57

(d) 5 CMC §3122 57, 58

(e) 7 CMC §§2501 et seq. 58

(f) 7 CMC §3401 62


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(g) Rule 13 of the Commonwealth Rules of Appellate

Procedure (CNMI) 62

Certificate of Compliance With Rule 32(a) 66

Statement of Related Cases Pursuant To Circuit Rule 28-2.6 67

Certificate of Service 68


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TABLE OF CITATIONS

Cases

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). 34

Bank of Commerce v. Harrison, 11 N.M. 50, 66 P. 460 (1901) 22

Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708,

7 A.3d 1284 (2010) 43

Board of Trustees v. Ada, 2012 MP 10; 2012 WL 3779318 32

Borden v. The Paul Revere Life Insurance Co., 935 F.2d 370 44

(1st Cir. 1991)

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,

91 L.Ed.2d 265 (1986) 34

Chirco v. Crosswinds Communities, Inc., 474 F.3d 227

(6th Cir. 2007) 45

Couveau v. American Airlines, Inc., 218 F.3d 1078

(9th Cir. 2000) 51

Commonwealth Ports Authority v. Hakubotan Saipan Enterprises,

Inc., N.M.I. 212, 222 (1991) 26

Danjaq LLC v. Sony Corporation, 263 F.3d 942 (9th Cir. 2001) 51

Del Rosario v. Camacho, 6 N.M.I. 213, 2001 MP 3 50

Edelmann v. Chase Manhattan Bank, N.A., 861 F.3d 1291

(1st Cir. 1988) 28

Erwin v. Erwin, 41 N.E. 2d 644 (App. Ct , Ind. 1942) 23


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FOX v. I-10, LTD., 957 P.2d 1018 (Colo. 1998) 22

Freitag v. Huiskamp, 166 N.W.2d 915, 919 (Iowa 1969) 29, 31

Garcia v. Chase Manhattan, N.A., 735 F.2d 645, 648

(2d Cir. 1984) 28

Gilpin v. Savage, 201 N.Y. 167, 94 N.E. 656 (1911) 22

Haye v. Diocese of Rapid City, 630 F.3d 757 (8th Cir. 2011) 44

Heyde Companies v. Dove Healthcare, LLC., 654 N.W.2d 830

(Wis. 2002) 22

Huynh v. Chase Manhattan Bank, 465 F.3d 992 (9th Cir. 2006) 14

Jackson v. Citizens Trust Bank, 133 Ga. App. 371 (1974)

211 S.E.2d 17 28

Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829

(9th Cir. 2002) 48

Landreth v. First Nat. Bank of Cleburne County, 45 F.3d 267

(8th Cir. 1995) 46, 52

Maksym v. Loesch, 937 F.2d 1237 (7th Cir. 1991) 46

Martin v. Constr. Laborers Pension Trust, 947 F.2d 1381,

1385 (9th Cir. 1991) 32

Miller v. Glenn Miller Prods, Inc., 454 F3d 975 (9th Cir. 2006) 35

Nat’l Life & Acc. Ins. Co. v. Dove, 174 S.W.2d245

(Tex. 1943) 29, 31


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Pagano v. United Jersey Bank, 648 A.2d 269, 272

(N.J. Super A.D. 1994) 28

Penagos v. Capital Bank, 766 So. 2d 1089 (Fla. App. 2000) 26

Platt Electrical Supply, Inc. v. Eoff Electrical, Inc.,

522 F.3d 1049 (9th Cir. 2008) 13, 42

Quillen v. Quillen, 462 S.E.2d 750, 265 Ga. 779 (`1995) 22

Regents of Univ. of Cal. v. Superior Court, 976 P.2d 808

(Cal. 1999) 43

Rios v. Marianas Public Land Corporation,

3 N.M.I. 512 (1993) 35, 47, 50

Robinson v. Lancaster Foundry Co., 136 A. 58,

152 Md. 81 (1927) 22

Semteck Int’l. Inc. v. Lockheed Martin Corp., 531 U.S. 497

(2001) 30

Shouse v. Pierce County, 559 F.2d 1142 (9th Cir. 1977) 48

Stillman v. S.S. Kresge Company, 522 F.2d 798 (4th Cir. 1975) 14

Sun Oil Co. v. Fleming, 469 F.2d 211 (10th Cir. 1972) 46

United States v. Kubric, 444 U.S. 111, 100 S.Ct. 352 (1979) 43

Warford v. Union Bank of Renton, 2010 Ark. App. 635,

378 S.W.3d 239 (2010) 47

White v. Daniel, 909 F.2d 99 (4th Cir. 1991) 46

William v. Drake, 9 F. Supp. 672 (E.D. IL 1935) 23


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Wyler Summit Partnership v. Turner Broadcasting System,

235 F.3d 1184 (9th Cir. 2000) 45


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OTHER AUTHORITIES

28 U.S.C. §1332(a) 12

28 U.S.C. §1446(a) 12

28 U.S.C. §1291 13

Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure 13

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure 53

Rule 56(c) of the Federal Rules of Civil Procedure 34

Rule 13(a) of CNMI Commonwealth Rules of Appellate

Procedure 30, 31, 48

4 CMC §5101 et. seq. 57

5 CMC §3122(2) 26, 27, 31, 57

5 CMC §2609 27

7 CMC §2442 27

7 CMC §2501 et. seq. 58

7 CMC §2505 31, 27

7 CMC §2508 20

7 CMC §2509 40, 56, 60

7 CMC §3401 43, 62

Restatement of Law 2d (Contracts 2d) §18 (1981) 24


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Restatement of the Law 2d (Torts 2d) §550 (1979) 43

Restatement of the Law 2d (Torts 2d) §899 (1979) 43


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STATEMENT OF JURISDICTION

The U.S. District Court for the Northern Mariana Islands removed this

case from the CNMI Superior Court pursuant 28 U.S.C. §1446(a). See

Memorandum Opinion And Order Granting First Hawaiian Bank’s Motion To

Dismiss and Granting In Part and Denying in Part Union Bank of California’s

Motion to Dismiss (Civil Docket - #23), ER-5 (Vol. I).

The U.S. District Court for the Northern Mariana Islands took

jurisdiction of this case on the basis of the diversity of the parties and the

claim of the plaintiff in the amount of at least $200,000 (an amount over the

required minimum amount of $75,000) pursuant to 28 U.S.C. §1332(a). See

ibid., ER-5 (Vol. I).

The district court entered a judgment in accordance with the Order

Granting Summary Judgment Motion based on applicable statute of

limitations and laches entered on November 8, 2013. (Civil Docket -#102)

ER-35 (Vol. I).

The judgment above is a final judgment as to all the parties in that the

complaint against Defendant First Hawaiian Bank was dismissed on May 12,

2012, and the plaintiff did not file a second amended complaint. The judgment


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in favor of Defendant Union Bank is a final judgment in that it disposed all of

the claims of all parties.

The plaintiff timely appealed the judgment and the order granting

Union Bank’s motion on November 27, 2013. The appeal was timely pursuant

to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure.

This court has jurisdiction over this appeal pursuant to 28 U.S.C.

§1291. See Platt Electrical Supply, Inc. v. Eoff Electrical, Inc., 522 F.3d 1049

(9th Cir. 2008).

STATEMENT OF THE ISSUES

1. (a) Whether the court err in dismissing the plaintiff’s breach of

contract claim on the ground that the statute of limitations has run out?

(b) Whether the court err in dismissing the plaintiff’s tort claims

(fraud and negligence) and Consumer Protection Act claims on the ground

that the statute of limitations has run out for each of those claims?

2. Whether the court err in dismissing all of the plaintiff’s claims on the

ground that they were barred by laches?

3. Whether the court err in awarding attorney fees to the defendant

[Union Bank], although the defendant’s motion to compel production of tax

records was denied?


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REVIEWABILITY AND STANDARD OF REVIEW

As to the issue of statute of limitations, Union Bank of California, N.A.,

[hereafter “defendant”], filed a motion for summary judgment alleging that

the plaintiff’s claims were barred by the statute of limitations. See Defendant

Union Bank N.A.’s Motion For Summary Judgment, Re. Statute of

Limitations, For Breach of Contract, Tort (Negligence & Fraud), and

Consumer Protection Act. (Civil Docket -#83); ER-5 (Vol. II). The district

court granted the motion. (Civil Docket - #102) ER-35 (Vol. I).

As to the issue of laches, the defendant filed a motion alleging that all

of the plaintiff’s claims were barred by laches. See Defendant Union Bank,

N.A.’s Motion For Summary Judgment As To All Claims Due To Laches.

(Civil Docket - #81) ER-3 (Vol. II). The district court granted the motion.

(Civil Docket - #102) ER-35 (Vol. I)

These issues are all reviewable de novo. Huynh v. Chase Manhattan

Bank, 465 F.3d 992 (9th Cir. 2006).

As to the issue of awarding attorney’s fees, it is reviewable by the

standard of abuse of discretion. See Stillman v. S.S. Kresge Company, 522

F.2d 798 (4th Cir. 1975).


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STATEMENT OF THE CASE

This case was originally filed in the Superior Court of the

Commonwealth of the Northern Mariana Islands. Defendant First Hawaiian

Bank, joined by Union Bank, filed a motion to move the case to the U.S.

District Court for the Northern Mariana Islands, and the motion was granted.

(Civil Docket # 23), ER 1 (Vol. 1). Defendant First Hawaiian Bank then

moved to dismiss the plaintiff’s complaint, and the plaintiff’s first amended

complaint thereafter. And the court granted the motion to dismiss with leave

to amend in favor of Defendant First Hawaiian Bank. (Civil Docket #42), ER-

23. The plaintiff did not file a second amended complaint. Consequently, the

First Hawaiian Bank is no longer a party to this suit.

Union Bank of California [hereafter “defendant”] filed a motion to

compel the plaintiff to produce his tax records, which he did not have. (Civil

Docket #73), ER-1 (Vol. II). The court subsequently denied the defendant’s

motion, but awarded the defendant attorney’s fees. See Minute Order (Civil

Docket #34), ER-34 (Vol. I).

On September 19, 2013, the defendant filed a motion for summary

judgment arguing that the plaintiff’s claims should be dismissed because the

statute of limitations expired. Simultaneously, the defendant also filed another


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motion for summary judgment arguing that all of the plaintiff’s claims should

be dismissed by reason of laches. See Motions (Civil Docket #81, 83), ER-3;

ER-5 (Vol. II).

After the hearing on October 31, 2013, the court entered on November

8, 2013 an order granting the defendant’s motion to dismiss based on statute

of limitations and laches. (Civil Docket #102), ER-35 (Vol. I). A judgment

pursuant to the order was entered on November 12, 2013. (Civil Docket

#103), ER-35 (Vol. I).

The plaintiff timely appealed on November 27, 2013. (Civil Docket

#104); ER-60 (Vol. I)

STATEMENT OF THE FACTS

On September 10, 1993, the plaintiff walked into the Union Bank, Oleai

branch, in Saipan, to buy a certificate of deposit in the amount of $200,000.

See Declaration of Donald G. Flores (Civil Docket #92), ER-194 (Vol. II); see

also Deposition of Donald G. Flores (Civil Docket #83), ER-46 (Vol. II). Ms.

Lourdes Salas Deleon Guerrero, an officer of Union Bank therein, issued a

certificate of deposit in the amount of $200,000. See Declaration of Donald G.

Flores (Civil Docket #92), ¶ 2, ER-195 (Vol. II); see also Deposition of

Donald G. Flores (Civil Docket #83), ER-46 (Vol. II). The CD, dated


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September 10, 1999, states inter alia, that it is “[p]ayable to Donald G. Flores

ONLY upon maturity, presentation and surrender of this certificate, properly

endorsed at the office of issue – to wit: the ‘Saipan Office.’” (Civil Docket

#83); ER-98 (Vol. II).

On February 28, 1999, the plaintiff and his wife went back to Union

Bank to ask Ms. Deleon Guerrero if she remembered that the plaintiff had

purchased a CD for $200,000. Deposition of Donald G. Flores (Civil Docket

#83), ER-67 (Vol. II). The plaintiff made this inquiry, because he was unable

to find his original CD. See Deposition of Donald G. Flores (Civil Docket

#83), ER-68 (Vol. II). The plaintiff then asked what he could do to get his

money, and he was told by Ms. Deleon Guerrero that he could not get his

money without his CD. See Deposition of Donald G. Flores (Civil Docket

#83), ER-88 (Vol. II). Moreover, he was told to find his CD and present it to

Union Bank. Deposition of Donald G. Flores, ibid and ER-69 (Vol. II).

In March 2008 a few years after the First Hawaiian Bank took over the

Union Bank’s Oleai branch, the plaintiff found his missing CD. On the same

day the CD was found, the plaintiff and his wife went to see Victoria

Concepcion [hereafter “Concepcion”], a former employee of the Union Bank,

who had transferred to First Hawaiian Bank. They presented the plaintiff’s CD


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that they had just found to Concepcion. Concepcion told them that there was

no record of the CD in the computer. ¶ 20 of Declaration of Donald G. Flores

(Civil Docket #92), ER-198 (Vol. II). When asked what to do next,

Concepcion said that she would check the boxes upstairs in the storage room

and she would call the plaintiff back in a few days. A week later, the plaintiff

went back to see Concepcion, who then told him that there was no record of

his CD. Furthermore, she insinuated that the First Hawaiian Bank had nothing

to do with the CD and that the plaintiff should directly contact the Union Bank

in San Diego. ¶¶ 20 and 21 of Declaration of Donald G. Flores (Civil Docket

#92), ER-198 and ER-199 (Vol. II).

On June 10, 2008, the plaintiff’s attorney (Jose S. Dela Cruz) wrote a

letter to Union Bank presenting a copy of the CD and demanding that Union

Bank pay the plaintiff the amount promised in the CD. (Civil Docket #83);

ER-99 (Vol. II). Union Bank responded by implying that Union Bank would

not pay because there was no record of the plaintiff’s CD. ER-102 (Vol. II). In

fact, the defendant did not pay when the CD was presented for payment, nor

has any payment been made to Plaintiff on the CD.

The plaintiff did not know what happened to his CD. In her deposition

on April 11, 2013, Concepcion testified that somebody, introducing himself as


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Donald Flores, called her on the phone and asked to be paid on plaintiff’s CD.

According to Concepcion, she then spoke with the branch manager, Ken Kato,

to get his payment approval and she then paid the money to the unknown

caller. According to Concepcion, she could not remember whether the

payment was wired or deposited into a checking account. Deposition of

Victoria Concepcion (Civil Docket #83), ER-131 (Vol. II). Plaintiff had never

opened an account with Union Bank and he did not call Concepcion or any

other employee of Union Bank by telephone to redeem his CD. ¶¶ 31 and 32

of Declaration of Donald G. Flores (Civil Docket #92), ER-200 (Vol. II).

ARGUMENT

I

CNMI’S STATUTE OF LIMITATIONS REQUIRES THAT A

DEMAND, WITH RESPECT TO A CERTIFICATE OF DEPOSIT,

MUST BE MADE IN ORDER FOR THE STATUTE OF LIMITATIONS

TO START RUNNING

A

COMMONWEALTH LAW PROVIDES THAT THE STATUTES OF

LIMITATIONS FOR ALL OF PLAINTIFF’S CLAIMS WERE

TOLLED WHEN UNION BANK LEFT THE COMMONWEALTH IN

2001

Even if Plaintiff’s claim for breach of contract accrued in 1999 when he

visited Defendant bank, the statute of limitations was tolled when Defendant


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departed from the Commonwealth only two years later in 2001. Under

Commonwealth law: “If at the time a cause of action accrues against any

person, that person is out of the Commonwealth, the action may be

commenced within the time limits in this chapter after that person comes into

the Commonwealth. If, after a cause of action accrues against a person, that

person departs from and resides out of the Commonwealth, the time of

absence shall be excluded in determining the time limit for commencement of

the action.” 7 CMC Sec. 2508. Defendant has admitted that it departed from

the Commonwealth in 2001. As stated in the Declaration of Lis Rockwell, a

senior vice president of Union Bank, "Union Bank stopped doing business in

the CNMI and no longer had a presence in the CNMI as of November 9,

2001. Union Bank surrendered its authority to transact business in the CNMI

on March 12, 2002.” ¶14 of Declaration of Lisa Rockwell , Civil Docket -

#83, ER-158.

Defendant bank did not return to the Commonwealth after leaving in

2001, so Plaintiff’s claims were tolled from that date, and remain tolled to the

present. The statute of limitations on Plaintiffs breach of contract claim is 6

years. 7 CMC Sec. 2505. That claim, and his other claims were tolled from


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the date that Defendant left the Commonwealth and therefore are not barred

by the applicable statutes of limitations.

This Court should reverse the district court’s judgment on this basis. In

doing so, the Court would not need to address Plaintiff’s other arguments

below.

B

THE DISTRICT COURT ERRED IN NOT APPLYING THE PARTIES’

WRITTEN AGREEMENT AS TO DETERMINE DEMAND FOR

PAYMENT WAS TO BE MADE

The district court found that Plaintiff had “demanded” payment when

he visited Defendant in 1999 to inquire about his CD, and therefore his claim

for breach of contract accrued then. Since the Commonwealth UCC does not

define how a ‘demand’ for payment is to be made, Plaintiff and Defendant

were entitled to specify that procedure in their contract. The parties did so.

Their contract – the CD – is clear what is required of Plaintiff in order to make

a demand for his money. The district court erred by not applying the parties

agreement as to how a demand is to be made, and instead creating and

applying a new and ambiguous rule of Commonwealth law in its holding that


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“a demand may be oral and does not require presentment . (Civil Docket -

#102) ER-35 (Vol. I).

Parties to a contract may agree on whatever terms they see fit so long as

such terms do not violate statutory prohibitions or public policy. FOX v. I-10,

LTD., 957 P.2d 1018 (Colo. 1998); see also, Heyde Companies v. Dove

Healthcare, LLC., 654 N.W.2d 2d 830 (Wis. 2002). Courts have long applied

this general principle. See, e.g., Bank of Commerce v. Harrison, 11 N.M. 50,

66 P. 460 (1901)(held, a claim regarding a certificate of deposit “must

therefore be considered and disposed of on the basis” that the certificate stated

that on its face that Plaintiff had deposited the sums with Defendant bank);

Quillen v. Quillen, 462 S.E.2d 750, 265 Ga. 779 (1995)(parties did not violate

the statute by contracting for the “automatic termination of the alimony

obligation of one party upon the cohabitation of the other.”)

Parties to a contract may agree on how a demand for payment is to be

made, and the courts will enforce such contract terms. In Robinson v.

Lancaster Foundry Co., 136 A. 58, 152 Md. 81 (1927), the Court of Appeals

of Maryland, citing Gilpin v. Savage, 201 N.Y. 167, 94 N.E. 656 (1911) noted

that a demand made by telephone was not a sufficient presentment and

demand where the parties’ agreement “requires personal attendance at the


23

place of demand with the note in readiness to exhibit it if required, and to

receive payment and surrender it if the debtor is willing to pay.” Robinson,

supra, 136 A. at 61. In Erwin v. Erwin, 41 N.E. 2d 644 (App. Ct , Ind. 1942),

the Appellate Court of Indiana relied on the agreement of the parties shown on

the certificate of deposit which said, “Robert Erwin has deposited in this bank

One Hundred fifty … Dollars payable to the order of Self, in current funds on

return of this Certificate, properly endorsed.” 41 N.E. 2d at 645. The court

relied on the agreement of the parties as shown in the certificate of deposit and

concluded as follows:

It is our opinion, therefore, that the statute of limitations does not

begin to run against a certificate of deposit issued by a bank,

payable upon the return of a certificate properly endorsed, until

such certificate has been returned and demand for payment

made. This view we believe to be supported by the weight of

authority in the several jurisdictions. (Emphasis supplied).

41 N.E. 2d at 647. See also William v. Drake, 9 F. Supp. 672 (E.D. IL 1935)

(A certificate of deposit payable to the order of the depositor upon the return

of the certificate is not due or suable until demand has been made and

certificate returned. 9 F. Supp. at 672, emphasis supplied.)

In the instant case, Defendant had issued the plaintiff a certificate of

deposit (“CD”) and the plaintiff accepted it. The CD clearly states that it is


24

“Payable to DONALD G. FLORES ONLY, upon maturity, presentation and

surrender of this certificate, properly endorsed at the office of issue.” ER-36.

Thus, the parties had agreed that Plaintiff’s ‘demand’ was to occur when he

presented and surrender his CD at the bank’s local branch.

The former bank manager testified that Union Bank had a policy that a

customer who did not possess his or her CD could still be paid if there is a

record of the CD. See ¶8 of Declaration of Ken Kato, ER-160. That policy

was not part of the parties’ agreement. There was no mutual assent to that

alternative method of payment. Mutual assent is required by under the law of

contracts applicable in the Commonwealth regarding contracts.1

Of course, Plaintiff had knowledge of that bank’s unwritten exception

to the requirement that the CD must be presented, and so he could not assert it

when he went to see Ms. Deleon Guerrero of the Union Bank for advice in

February of 1999. Plaintiff asked the bank’s Ms. Deleon Guerrero “I say, so

what now?” and “She said, when-yeah, so when you find your TCD, bring it

over.” See lines 2-6 of the Deposition of Donald G. Flores, ER-69. Ms.

1 Restatement of Law 2d (Contracts 2d) §18 (1981), which is the law of the

CNMI. See 7 CMC §3401.


25

Deleon Guerrero did not tell Plaintiff that he could receive his money even if

he did not have his CD.

Upon finding his CD, Plaintiff made his demand through his attorney

on June 10, 2008, when he sent a letter to the bank. (Civil Docket 83-1) ER-37

(Vol. II). Plaintiff filed his lawsuit on September 22, 2011, three years and

three months later. Therefore, his breach of contract claim was not barred by

the CNMI’s six-year statute of limitations found in 7 CMC §2505.

C

THE DISTRICT COURT ERRED BY INTERPRETING THE

MEANING OF “DEMAND” UNDER COMMONWEALTH UCC SEC.

3122(2) BY RELYING ON CASE LAW THAT CONSTRUES

STATUTES THAT ARE NOT ANALOGOUS TO THE

COMMONWEALTH UCC

If this Court determines that the plain wording of the parties’ agreement

(the TCD) is not dispositive of how Plaintiff was to make his demand for

payment, then Plaintiff would argue that the district court’s definition of

‘demand’ is erroneous because it is fashioned from cases that are not at all

analogous to this case or the Commonwealth UCC.

Under the Commonwealth’s version of the Uniform Commercial Code

(“UCC”), “[a] cause of action against the obligor of a demand or a time

certificate of deposit accrues upon demand, but demand on a time certificate


26

may not be made until on or after the date of maturity.” 5 CMC §3122(2).

Since the Commonwealth UCC does not define the term “demand,” the

district court sought “to entertain what the legislature intended by applying the

plain meaning” of the word. (Civil Docket #102) ER-44 (Vol.I), citing

Commonwealth Ports Authority v. Hakubotan Saipan Enterprises, Inc., 2

N.Mar.I. 212, 222 (1991).

The district court rejected the relevant authority that Plaintiff cited in

which courts had interpreted the same language as contained in §3122(2) of

the Commonwealth’s UCC, and instead relied on cases in which courts had

construed ‘demand’ as used in statutes that are not similar to the UCC. The

Plaintiff relies on Penagos v. Capital Bank, 766 So. 2d 1089 (Fla. App. 2000),

in which the court held a demand under Sec. 3122(2) of Florida’s UCC, which

is identical to the Commonwealth UCC Sec. 3122(2), must be made in

writing. The district court, however, ruled that:

In Penagos, plaintiff had made periodic inquiries about his 1988

TCD before making written demand for payment in 1991. In

1995, he filed suit. Id. The bank asserted that the cause of action

accrued on the date the TCD matured in 1988 and that, therefore,

it was barred by the state’s five-year statute of limitations. Id. at

1090. The court found that plaintiff’s action, brought in 1995,

was timely because “the accrual date is the date of written

demand by the depositor.” Id. Florida’s statute accruing causes of

action on TCDs “upon demand” to mean a written demand


27

because the analogous Florida statute of limitations expressly

required “written demand for payment” as an element for accrual.

Id. (citing §95.031(1), Fla. Stat. Stat. (1987)).

Penagos does not settle the matter in Flores’ favor. In contrast to

Florida, the Commonwealth’s limitations statutes do not specify

that a demand must be in writing. There is no need to read into

the Commonwealth’s UCC “upon demand” language at 5 CMC

§3122(2) a requirement for a writing so as to harmonize it with 7

CMC §2505, the applicable statute of limitation.

Like Florida, the Commonwealth has analogous statutes that require a

written demand. The district court noted a few of these Commonwealth

statutes, but then dismissed their relevance. The court wrote, “[t]he fact that

some Commonwealth statutory provisions expressly require a written demand

– for example, 5 CMC § 2609 (written demand of adequate assurance of due

performance), 7 CMC § 2442 (written demand to pay bounced check) – does

not mean that the requirement of a writing should be applied to all demands”

(Civil Docket #102) ER-46 (Vol. I).

Plaintiff does not argue that a writing should be required of “all

demands.” Plaintiff argues that a written demand should be required under

Commonwealth UCC Sec. 3122(2) because such would provide clear

evidence of a party’s request to enforce a right, thus making clear when the

statute of limitations for a ‘demand’ accrues. Also, requiring a written demand

would uphold the public policy that the law should provide definiteness since


28

the date and contents of a written instrument are easily determined. Certainly,

the Commonwealth Legislature intends that every law it enacts, and every

judicial interpretations of its laws, provide definiteness.

Courts in other jurisdictions held that a demand alone will not trigger

the statute of limitations; the bank’s refusal to pay is also required. The court

in Edelmann v. Chase Manhattan Bank, N.A., 861 F.3d 1291 (1st Cir. 1988)

found that “In New York, as in 49 other states, “[a] cause of action against the

obligor of a demand or a time certificate of deposit accrues … upon

demand…” 861 F3d at 1301, and a “[d]emand occurs upon presentation and

refusal to pay.” 861 F.2d 1302, n. 66. Other courts have applied this rule

Garcia v. Chase Manhattan, N.A., 735 F.2d 645, 648 (2d Cir. 1984); and see

Pagano v. United Jersey Bank, 648 A.2d 269, 272 (N.J. Super A.D. 1994)

(“the statute of limitations did not start to run until plaintiff’s demand for

payment was made and refused.” (emphasis supplied)); Jackson v. Citizens

Trust Bank, 133 Ga. App. 371 (1974) 211 S.E.2d 17.

In Garcia, supra, the Court required that the refusal to pay or

repudiation by the bank to pay on a CD “must be clear and equivocal to

constitute an anticipatory breach of contract.” Garcia, 735 F2d at 648. The

court in Garcia held that where the bank did not definitely state that it would


29

not pay debt, although this could be inferred from letter, the statute of

limitations did not begin to run until demand was made by bank customer. See

735 F.2d at 648-649.

In this case, the district court relied on cases from Iowa and Texas in

which those state courts were interpreting the word “demand” as used statutes

that have no relation to the Uniform Commercial Code. The district court

applied the holding in Freitag v. Huiskamp, 166 N.W.2d 915, 919 (Iowa

1969), which concerned a county treasurer’s demand for payment of taxes

authorized under Iowa law. The court in Freitag held that “to constitute a

sufficient demand, one need not employ the word ‘demand,’ nor will other

formal acts or words, or a personal demand, usually be considered necessary.”

In this case, Plaintiff was not imbued with the authority of a state tax collector

to make his demand. The district court also relied on Nat’l Life & Acc. Ins.

Co. v. Dove, 174 S.W.2d 245 (Tex. 1943) in which the court interpreted a

Texas statute “[a]ll that is required is the assertion of the right under the

contract and a request for compliance therewith.”

The district court’s reliance on these cases was misplaced and results in

an unpredictable rule that the court summarized as follows: “a demand may be

oral and does not require presentment” (Civil Docket #102) ER-48 (Vol. I). If


30

upheld, the court’s holding will confound litigants as to when their claims

begin. That is counter to the court’s duty “to entertain what the legislature

intended” since it does not provide definiteness, which the Commonwealth

legislature surely intended. Also, the court’s holding does not apply a “plain

meaning” to the word ‘demand’ as used in the Commonwealth UCC. It is

vague and not simple to apply. It does not inform the people of the

Commonwealth what constitutes a demand. To the contrary, it creates an

additional issue for future litigants, and more effort and expense for them and

for Commonwealth courts in order to resolve.

D

THE DISTRICT COURT ERRED BY FAILING TO CERTIFY THE

KEY ISSUE OF WHAT CONSTITUTES A ‘DEMAND’ UNDER

COMMONWEATH UCC SEC. 3122(2) TO THE COMMONWEALTH

SUPREME COURT

This case was before the district court on diversity jurisdiction. A

federal court sitting in a diversity case must apply the substantive law of the

forum where the action is filed. Semtek Int’l. Inc. v. Lockheed Martin Corp.,

531 U.S. 497, 498 (2001).

In the Commonwealth, the federal district court may certify questions

of Commonwealth law to the Commonwealth Supreme Court. Under Rule


31

13(a) of the Commonwealth Rules of Appellate Procedure such certification is

appropriate “. . . where the federal court finds that: (1) The question may be

determinative in the proceedings before it; and (2) There is no controlling

precedent in the decisions of this Court.” NMI Sup. Ct. R. 13(a).

The district court, however, did not certify the critical question of what

constitutes a demand under the Commonwealth UCC. There is no controlling

precedent in the decisions of the Commonwealth Supreme Court on that issue.

It is an issue of first impression in the young Commonwealth. The issue is

also clearly determinative of this case. It was ideal for certification to the

Commonwealth Supreme Court.

As discussed above, the district court relied on cases interpreting the

word “demand” as used in statutes not involving the UCC, Freitag v.

Huiskamp, supra, and 166 N.W.2d 915, and Nat’l Life & Acc. Ins. Co. v.

Dove, supra, 174 S.W.2d 245. The district court rebuffed Plaintiff’s more

exacting precedent, ruling that “There is no need to read into the

Commonwealth’s UCC “upon demand” language at 5 CMC §3122(2) a

requirement for a writing so as to harmonize it with 7 CMC §2505, the

applicable statute of limitation.” (Civil Docket #102) ER-42 (Vol. I).


32

Whether there is a “need” to interpret Commonwealth statutes so that

they “harmonize” is another critical matter that the district court should have

entrusted to the Commonwealth Supreme Court. The district court erred in

creating new precedent on an issue of first impression under the

Commonwealth UCC by relying on two cases from other jurisdictions in

which the courts were not interpreting a similar UCC statute.

In a different context, the Commonwealth Supreme Court recently held

that “the statute of limitations begins to run [] when there has been “a clear

and continuing repudiation of rights under the pension plan which is made

known to the beneficiary.” Board of Trustees v. Ada, 2012 MP 10; 2012 WL

3779318 (N. Mariana Islands 2012), quoting, Martin v. Constr. Laborers

Pension Trust, 947 F.2d 1381, 1385 (9th Cir. 1991). In the context of this

case, it is possible that the Commonwealth Supreme Court would likewise

rule that a cause of action under the Commonwealth UCC Sec. 3122(2) does

not accrue until a plaintiff’s demand for payment on a negotiable instrument

has clearly and convincingly been denied and that denial has been made

known to the plaintiff, and that such denial must be in writing – a requirement

in New York and other jurisdictions.


33

Certifying the determinative issue in this case to the Commonwealth

Supreme Court would uphold the public policy of promoting comity among

the courts. It also would allow the Commonwealth courts the first, best

opportunity to interpret Commonwealth law and create precedent that will

apply in the Commonwealth for years to come.

E

THE DISTRICT COURT ERRED BY DETERMINING GENUINE AND

MATERIAL FACTS REGARDING WHETHER PLAINTIFF HAD

ASSERTED HIS RIGHTS FOR A RETURN OF HIS MONEY

As discussed above, the district court relied on precedent that is

inapposite to fashion broad ruling of first impression for the Commonwealth.

The district court then applied the slim record of evidence available to it to

decide that Plaintiff, merely by visiting the bank to ask about his account, had

somehow asserted his rights for a return of his money, thus making a

“demand” under the Commonwealth UCC.

What Plaintiff did and said when he visited the bank in 1999, and

whether that amounted to an assertion of his rights is a disputed issue of fact

that is both genuine and material to the disposition of this case, and it was

error for the district court to determine and then apply those facts on a motion

for summary judgment. Granting summary judgment is proper only "if the


34

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a

matter of law." Rule 56(c), F.R.Civ.P.

Whether Plaintiff’s acted in a way that he had ‘asserted’ his rights

during his visit to the bank in 1999 is a genuine issue since there is "sufficient

evidence supporting the claimed factual dispute" to require a choice between

"the parties' differing versions of the truth at trial." It is also a "material" issue

because it "affect[s] the outcome of the suit," and must be resolved prior to a

decision of the legal issues. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106

S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The

district court should not have ruled on the genuine, material issue of whether

Plaintiff made a ‘demand’ for a return of his money, and instead left that for a

jury at trial.

F

THE DISTRICT COURT FAILED TO EXAMINE THE SCANT

RECORD IN A LIGHT FAVORABLE TO PLAINTIFF FAVOR OR

MAKE REASONABLE INFERENCES IN PLAINTIFF’S FAVOR


35

Even if this Court finds that there are sufficient undisputed facts for a

consideration of Defendant’s motion for summary judgment, the “evidence

and inferences must be drawn therefrom in favor the non-moving party.” See

Rios v. Marianas Public Land Corporation, 3 N.M.I. 512, 518 (1993); see

also Miller v. Glenn Miller Prods, Inc., 454 F3d 975, 988 (9th Cir. 2006) (the

court views the evidence in the light most favorable to the non-moving party

and draws “all justifiable inference” in that party’s favor). The district court

failed to draw reasonable inferences in Plaintiff’s favor.

At his deposition Plaintiff was asked by counsel for Defendant, “Okay.

And were you there to get your money? Is that what you saying?” to which

Plaintiff answered, “Yes.” Plaintiff added that “I came to check on it, yeah

and get my money.” See Order Granting Summary Judgment Motion, Line 2-

6 of Deposition of Donald G. Flores, ER-77. Plaintiff also was asked “At that

time you were trying to figure out how to get it cashed or what to do with it?

You wanted to do something with the $200,000.00 plus the interest?” To this

question, Plaintiff replied “No for the money, the $200,000.00.” See p. 16 of

Order Granting Summary Judgment Motion, (Civil Docket #102) ER-49 (Vol.

1); lines 18-25 of Deposition of Donald G. Flores, ER-87.


36

This scant evidence at best shows that Plaintiff intended to determine

what happened to the money he had entrusted to Defendant bank. Plaintiff

was asked and affirmed that he visited the bank to ‘check’ on his money, that

he ‘wanted to do something with’ the money, and that he was there to get his

money. At no point did Plaintiff testify that he insisted the bank return his

money.

The district court, however, unreasonably inferred from the evidence

that Plaintiff had taken explicit, outward acts that amounted to an assertion of

his rights that qualify as a “demand” under the Commonwealth’s UCC. The

district court’s own test – that a ‘demand’ for payment may be made orally –

must require something more than mere questions by a party to a contract.

The reasonable inference to be drawn from the slim record in this case is that

Plaintiff intended to find out where his money was, but did not demand it.

Plaintiff’s subject desire to ‘check on’ his money, or even to ‘get’ his money

back, does not mean that he expressed that to Defendant bank in 1999 during

his visit. At the very least, the record shows that more facts are required to

determine whether Plaintiff took outward acts that amounted to a demand on

the Defendant.


37

In fact, Plaintiff was told by Defendant that, in order to withdraw his

money, he first must find his original CD and return with it. (Civil Docket

#102) ER-49 (Vol. I). Plaintiff could not locate his original CD until 9 years

later in 2008, when, through counsel, he made his initial demand upon the

bank for a return of his money. The reasonable inference to be drawn from

these undisputed facts, viewing them in a light favorable to Plaintiff, is that

Plaintiff, acting in good faith, took Defendant at its word, and trustingly

believed that he had no rights without the original CD in hand.

The record further shows that sometime prior to 2001, Defendant bank

released Plaintiff’s $200,000 to some unidentified person based on a phone

call, and without requiring that caller to deliver the original CD. ER-218 (Vol.

II). The record further shows that the CD was purchased in 1993. The Union

Bank’s former manager testified that the bank routinely destroyed its account

records after 7 and ½ years. (Civil Docket #83-1) ER-120 (Vol. II).

However, when Plaintiff visited the bank in 1999, only near 6 years after

purchasing the CD, Defendant bank told him that there was no record of his

CD. (Civil Docket #83-1) ER-126 (Vol. II). None of this evidence reveals

why Defendant would have destroyed Plaintiff’s record before the end of the

usual 7 and ½ year record retention period. One reasonable inference to draw


38

from these facts, however, is that when the parties met in 1999, Defendant

likely knew that it had already released the funds in Plaintiff’s account to a

third party because it no longer had a record of his CD, and Defendant

decided to conceal that fact from Plaintiff.

Viewed in a light favorable to Defendant, it is reasonable to infer that

Defendant was not honest with Plaintiff about what happened to his money, or

the record of his account, and instead lulled Plaintiff and his spouse into a

sense of security that Defendant bank would honor their agreement if he were

to find and deliver the CD. The district court failed to draw these inferences

because it did not view the record in a light favorable to Plaintiff. This

resulted in the court’s erroneous decision to grant Defendant’s motions and

dismiss Plaintiff’s claims.

II

THE STATUTES OF LIMITATIONS ON THE PLAINTIFF’S CLAIMS

FOR FRAUDULENT CONCEALMENT, NEGLIGENCE, AND

VIOLATION OF CNMI’S CONSUMER PROTECTION ACT

A

DEFENDANT’S FRAUDULENT CONCEALMENT OF FACTS

CRITICAL TO PLAINTIFF’S TORT AND CONSUMER

PROTECTION ACT CLAIMS TOLLED ACCRUAL OF THOSE

CLAIMS


39

The district court recognized that “[t]he Commonwealth Supreme Court

has not determined when tort claims accrue” (Civil Docket #102) ER-51 (Vol.

I), and thus decided that torts in the Commonwealth, like federal tort claims,

“accrue when a plaintiff becomes aware of an injury and aware that defendant

caused the injury . . .” Id., citing, United States v. Kubrick, 444 U.S. 111, 112-

24 (1979). The court then found that “[Plaintiff] was aware of the injury

immediately, and was aware that [Defendant] caused the injury.” Id.

Similarly, the district court held that Plaintiff’s claim under the

Commonwealth Consumer Protection Act (‘CPA’) is time-barred because

“[Plaintiff] should have been aware of such claim in 1999 when [Defendant]

refused his demand for payment based on its representation that it had no

record of any CD owned by him.” Id., at 18.

The district court’s ruling was erroneous because it likens Plaintiff’s

awareness that Defendant did not have a record of his account to an awareness

“of his injury”. The court found “[a]ny reasonable investor” would take

action upon being told “that her bank had lost track of more than $200,000 of

her money . . .” Id. at 18. It is correct that Defendant told Plaintiff it did not

have a record of his account. But the undisputed facts are that Defendant also


40

told Plaintiff that he should find his original CD and return to the bank with it.

This prevented Plaintiff from being ‘aware of his injury’.

The district court also found that “It is irrelevant that [Plaintiff] did not

at that moment have all the facts he needed to piece together the puzzle of

what happened to his money.” Order at 17. To the contrary, the relevant fact

is that Defendant told Plaintiff to find his CD; Defendant did not tell Plaintiff

that it had no intention to pay back his money even if he located the CD.

Defendant’s continuing refusal to pay Plaintiff his money conclusively shows

Defendant’s intention not to honor its obligation to Plaintiff.

Under Commonwealth law, “If any person who is liable to any action shall

fraudulently conceal the cause of action from the knowledge of the person

entitled to bring it, the action may be commenced at any time with the time

limits with this chapter, and within 2 CMC Secs. 4491 and 4492, after the

person who is entitled to bring the same shall discover or shall have had

reasonable opportunity to discovery [sic] that he has such cause action, and

not afterwards.” 7 CMC Sec. 2509. Thus, the Commonwealth Legislature has

codified the rule of fraudulent concealment, which tolls a statute of

limitations. The district court was bound to apply that statute.


41

Thus, Plaintiff fraudulently concealed from Defendant critical facts that

prevented Plaintiff from bringing his claims sooner. Defendant had sufficient

motivation to conceal the real facts from Plaintiff about his CD because

Defendant apparently had paid the $200,000 (and presumably interest) to an

imposter. In her deposition on April 11, 2013, Defendant’s employee Ms.

Concepcion testified as follows:

Ok. Here’s my recollection, at one point in time when the Flores’

were in the mainland, ok. I recalled receiving a call asking, you

know, how can they access their funds. I believe at that time

there was a checking account. I do not, you know fully recall or if

they asked for a wire. And the reason is they needed the funds

because they were in California. My recollection is, she was there

trying to get a kidney from the brother, correct. And so, um, you

know, usually we would require the original but my recollection

at that time that I even had to go to Mr. Kato to ask for his

approval, you know based on the situation that they were in. And

since it was going to through wire or going, like I said I’m not

sure whether it was wire or to their checking account. You know,

I felt, you know, you know and discussed it with him that it’s ok

because it’s going to their account. There is a track record of, you

know, what happened to the funds. Not knowing that you know,

of course when it’s closed its seven years we don’t have the

record with us, so I cannot prove that, that’s the only thing I can

recall.

Lines 10-22 of Victoria Concepcion’s Deposition, ER-218.

In fact, Plaintiff testified that he never called Concepcion by phone to

ask for his money, nor did he ever receive the money from the Defendant. See


42

¶¶ 31 and 32 of Deposition of Donald G. Flores, ER-200.2 When Plaintiff and

his spouse finally found the original CD in March 2008, they immediately

went to see Defendant and met with Concepcion, who pretended to look for

the record and even told the plaintiff that she would check the boxes. See ¶¶

20 and 21 of Deposition of Donald G. Flores, ER-198; Lines 1-23 of

Deposition of Victoria Concepcion, ER-217. Certainly Concepcion already

knew at that time that Defendant bank had already paid the money to a third

party years earlier – in fact she was able to recall that fact in her deposition

years later on April 11, 2013 (as quoted above) – but, again, she did not tell

Plaintiff that fact at the meeting in 2008. Conception merely told Plaintiff that

there was no record of his CD. See ¶6 of Declaration of Ken Kato, ER-160.

It is well accepted that fraudulent concealment postpones accrual of a

cause of action until plaintiff discovers the existence of his claim. Platt

Electrical Supply, Inc. v. Eoff Electrical Supply, Inc., 522 F.3d 1049, 1054 (9th

Cir. 2008) (applying California law). The common law as expressed in the

2 In paying the money to an imposter based solely on a phone call, Defendant

also did not comply with the CD’s requirements that the CD must itself by

presented and surrendered to the bank, endorsed by Plaintiff. Defendant’s act

of paying an impostor was in itself negligent, a cause of action that was not

known to the Plaintiff until April 11, 2013.


43

Restatements of the Law provide the rules of decision in the Commonwealth

in the absence of a relevant statute or customary law, 7 CMC §34013. The

Restatement of the Law (Torts 2d) §550 and §899, cmnt e (1979) recognizes

the rule of fraudulent concealment, and was approvingly cited by the U.S.

Supreme Court in United States v. Kubric, 444 U.S. 111, 100 S.Ct. 352

(1979). See also, Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708, 7 A.3d

1284 (2010)(“[T]he fraudulent concealment rule states that when facts

essential to the cause of action are fraudulently concealed, the statute of

limitations is tolled until the plaintiff has discovered such facts or could have

done so in the exercise of reasonable diligence. Id., 7 A.3d at 1290).

The Supreme Court of California has held that the purpose of the

doctrine of fraudulent concealment “is to disarm a defendant who, by his own

deception, has caused a claim to become stale and a plaintiff dilatory.”

Regents of Univ. of Cal. v. Superior Court, 976 P.2d 808, 823 (Cal. 1999).

3 7 CMC Sec. 3401 provides: Applicability of Common Law. In all

proceedings, the rules of the common law, as expressed in the Restatements of

the Law approved by the American Law Institute and, to the extent not so

expressed as generally understood and applied in the United States shall be

the rules of decision in the courts of the Commonwealth, in the absence of a

written law or local customary law to the contrary; provided, that no person

shall be subject to criminal prosecution except under the written law of the

Commonwealth.


44

The Court in Haye v. Diocese of Rapid City, 630 F.3d 757 (8th Cir. 2011), also

held that “If a trust relationship exists between the parties, ‘an affirmative

duty to disclose is imposed,’ and ‘mere silence’ can amount to fraudulent

concealment if the silent party knew or should have known about the cause of

action.” Id. at 761.

In Borden v. The Paul Revere Life Insurance Co., 935 F.2d 370 (1st Cir.

1991), the U.S. 1st Circuit Court, interpreting Massachusetts law, said:

In Massachusetts, as elsewhere, “[i]t is established that

misrepresentation claims may be subject to the discovery rule.”…

Under that rule, a cause of action in either contract or tort which

“is based on an inherently unknowable wrong” accrues for

limitation purpose, “when the injured person knows or in the

exercise of reasonable diligence should know of the facts giving

rise to the cause of action.” … A wrong can be “inherently

unknowable “if it is incapable of detection by the wrong party

through the exercise of reasonable diligence.

935 F.2d at 376.

Although a relationship of trust existed between the parties, Defendant

sent Plaintiff on a fool’s errand to find his CD. Defendant had a duty to

disclose the fact that it would not pay Plaintiff back his money even if he

found the CD. This Court should not allow Defendant to profit from its

fraudulent concealment of crucial facts that, had they been timely revealed to


45

Plaintiff, would have put Plaintiff on reasonable notice to pursue his claims

then.

III

PLAINTIFF’S CLAIMS ARE AT LAW AND NOT IN EQUITY

A

THE DISTRICT COURT ERRONEOUSLY APPLIED THE

DOCTRINE OF LACHES TO PLAINTIFF’S CLAIMS WHICH ARE

AT LAW AND NOT IN EQUITY

Plaintiff’s claims for breach of contract, fraud, negligence, and

violation of the Consumer Protection Act are all actions at law. None of

Plaintiff’s claims are in equity. The district court, however, held that all of

Plaintiff’s claims are barred by the doctrine of laches. (Civil Docket #102)

ER-53 (Vol. I). Whether laches should be applied to a particular situation is a

question of law requiring de novo review. Chirco v. Crosswinds Communities,

Inc. 474 F.3d. 227, 231 (6th Cir. 2007).

Laches is an inappropriate defense to an action at law. Miller v.

Maxwell’s Int’l, 991 F.2d 583, 586 (9th Cir. 1993) (laches does not apply when

statute of limitations governs an action); Wyler Summit Partnership v. Turner

Broadcasting System, 235 F.3d 1184, 1193-94 (9th Cir. 2000) (breach of

contract claim seeking money damages was an action at law that precluded the


46

defense of laches); Landreth v. First National Bank of Cleburne County, 45

F.3d 267, 271 (8th Cir. 1995)(where a party is only seeking to enforce a legal

right not barred by the statute of limitations and is not seeking equitable relief,

laches has no application even if it could otherwise apply); Maksym v. Loesch,

937 F.2d 1237, 1248 (7th Cir. 1991) (laches is a defense in equity cases);

White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990)(laches is proper when

claims are equitable rather than legal); Sun Oil Co. v. Fleming, 469 F.2d 211,

213 (10th Cir. 1972)(for laches to apply, the claim must be at equity and not

law).

The facts in Landreth, supra, are remarkably similar to this case. In that

case, a CD was purchased on March 18, 1970 from a bank that was later

acquired by the defendant First National Bank of Cleburne County. The

purchasers of the CD had placed it into a safe where it was forgotten for 21

years. In 1991, the purchasers’ assignee presented the CD to the First National

Bank of Cleburne County, which denied payment. The defendant asserted

both statute of limitations and laches defenses. In rejecting the laches defense,

the court in Landreth held that “the doctrine of laches is only applicable where

equitable relief is sought; where a party is only seeking to enforce a legal right

not barred by the statute of limitations and is not seeking equitable relief, the


47

doctrine of laches has no application even if it could otherwise apply.” 45

F.3d at 271; see also, Warford v. Union Bank of Renton, 2010 Ark. App. 635,

378 S.W.3d 239 (2010)(court rejected laches defense where defendant refused

to pay on a $100,000 CD after presentment by plaintiff because laches is not

available in an action at law).

At least, the district court should have certified to the Commonwealth

Supreme Court the issue of whether the doctrine of laches can serve as a

defense to claims at law. That issue has not been resolved by the

Commonwealth Supreme Court. Only in Rios v. Marianas Public Land

Corporation, 3 N.M.I. 512; 1993 WL 307675 (N.Mariana Islands 1993), a

case brought in equity, has the Commonwealth Supreme Court applied the

doctrine of laches. The Court in Rios concluded that the trial court’s grant of

summary judgment was erroneous because it was “not clear from the record

below whether plaintiffs’ delay was inexcusable” and “there are no facts in the

record showing whether plaintiffs’ delay caused [defendant] to suffer any

prejudice” Id. at 526.

Because the issue of whether laches may be applied to claim at law is

not settled in the Commonwealth but likely would be determinative of this

case, the district court should have included it for certification to the


48

Commonwealth Supreme Court together with the issue regarding ‘demand’

under the Commonwealth UCC, infra. NMI Sup. Ct. R. 13(a).

B

EVEN IF THE DOCTRINE OF LACHES IS APPLIED TO

PLAINTIFF’S CLAIMS AT LAW, THOSE CLAIMS WERE FILED

WITHIN THE ANALOGOUS LIMITATIONS PERIOD, DEFEATING

ANY PRESUMPTION OF UNDUE DELAY

There is a strong presumption that the doctrine of laches does not apply

where a plaintiff files her lawsuit with the analogous limitations period.

Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir.

2002), citing, Shouse v. Pierce County, 559 F.2d 1142, 1147 (9th Cir. 1977).

As argued above, either the statutes of limitations on Plaintiff’s claims were

tolled from 2001 when Defendant left the Commonwealth or due to

Defendant’s fraudulent concealment, or Plaintiff timely brought his claims

even if they were not tolled.

If this Court agrees with Plaintiff that he filed his claims within the

period required under the applicable Commonwealth statute(s) of limitation,

and in light of Defendant’s fraudulent concealment, then the Court can and

should dismiss Defendant’s defense of laches on that basis.


49

C

THE DISTRICT COURT ERRED BY WEIGHING AND DECIDING

CRITICAL, DISPUTED FACTS IN THE CONTEXT OF A MOTION

FOR SUMMARY JUDGMENT

The district court weighed conflicting evidence offered by the parties,

and erroneously made factual determinations on the motion for summary

judgment. The court found that “[Defendant] has some evidence to show that

[Plaintiff] cashed out the TCD sometime prior to 2001.” (emphasis supplied.)

The district court summarized that Defendant’s employee “recalls that

[Plaintiff] telephoned . . . to obtain funds for his wife’s medical treatment.”

Id., citing, Concepcion Deposition, ECF 83-1, 128:10-25; see (Civil Docket

#83-1) ER-126 (Vol. II). The district court makes no mention of Plaintiff’s

testimony to the contrary that at no time did he call Defendant to request that

it cash out his CD or return his money to him. See ¶¶ 31 and 32 of Deposition

of Donald G. Flores, ER-200.

The district court erroneously weighed this key conflicting evidence,

acting as a trier of fact, and chose in favor of Defendant’s version regarding

whether Plaintiff had sought and received a return of his money. The district

court also failed to draw the inferences in the non-movant’s (Plaintiff) favor as


50

required.4 On this basis, too, the district court’s judgment must be reversed

and remanded for a trial on the facts before a jury, as requested by Plaintiff.

D

APPLICATION OF LACHES IS IMPROPER BECAUSE PLAINTIFF’S

DELAY WAS REASONABLE AND DEFENDANT HAS NOT BEEN

PREJUDICED BY THE LAPSE OF TIME

Even if the laches defense is available to Defendant in this case, it has

not met the requirements for that defense. In Del Rosario v. Camacho, 6

N.M.I. 213; 2001 MP 3; 2001 WL 34883245 (N. Mariana Islands 2001), the

Commonwealth Supreme Court, while not applying laches to the facts before

it, summarized the doctrine as follows:

The elements of laches are (1) plaintiff delayed filing suit for an

unreasonable and inexcusable length of time from when she knew

or reasonably should have known of her claim against the

defendant, and (2) the delay operated to the prejudice or injury of

the defendant.

4 In Rios, supra, the Commonwealth Supreme Court found that the trial court

had erroneously granted summary judgment based on laches “[b]ecause a

number of unanswered questions remain with respect to both of the elements

of laches . . .” Id. at 526. The Court cited a case from the Commonwealth trial

court in which it had “rendered its decision on the issue of laches only after a

two-day trial on the merits relating solely to that issue.” Id. at 525, citing,

Palacios v. TTPI, 2 CR 904 (D.C.N.M.I.App.Div. 1986), aff’d, 838 F.2nd 474

(9th Cir. 1988).


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Id. at 2001 MP 3 at 9, citing, Rios, supra, 3 N.M.I. at 524. This Circuit

applies a similar test. Danjaq LLC v. Sony Corporation, 263 F.3d 942 (9th

Cir. 2001); Couveau v. American Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir.

2000)(“defendant must prove both an unreasonable delay by the plaintiff and

prejudice to itself.”).

Plaintiff’s delay was reasonable because he relied on Defendant’s

advice to find his original CD. Also, as discussed above, Defendant failed to

advise Plaintiff that it would not return his money even if he found the CD.

The district court also found that Defendant would be prejudiced

because, if Plaintiff had brought suit sooner, “[Defendant] may have records

to show the existence of the transaction despite Guerrero’s [Defendant’s

employee] statement that [Defendant] had no record of this TCD.” (Civil

Docket #102) ER-55 (Vol. I). By this statement, the district court side-

stepped the troubling fact that Defendant had destroyed its record of

Plaintiff’s account even before the expiration of its usual 7 and ½ year record

retention period. It determined facts based on assumptions drawn from slim

evidence, not from a well-developed record.


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Also, the district court assumed the bank would suffer prejudice. The

modern trend, however, recognizes that banks expect CDs to be presented for

payment even years after they mature. In Landreth v. First National Bank of

Cleburne County, supra, 45 F.3d 267, the court found that “CDs are issued

with the understanding that they will be held for long periods of time, which

often exceed the period of the statute of limitations, and that the expectation

and custom of the banking industry requires a demand for payment to be made

before any liability is incurred by the bank.” Id. at 270. The Court in

Landreth also reviewed the relevant law as summarized in Am.Jur.2d Banks

Sec. 466 (1964), and concluded that “our holding is in line with the modern

trend that a demand need not be made in a reasonable amount of time.” Id. at

270-71.

The district court unreasonably inferred from the slim evidence in the

record that Defendant is prejudiced. The modern trend, as recognized by the

Court in Landreth, is for banks to be liable on CDs even many years after they

are issued.

IV

THE COURT ABUSED ITS DISCRETION WHEN IT

AWARDED ATTORNEY’S FEES TO DEFENDANT ON ITS


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MOTION TO COMPEL BECAUSE DEFENDANT DID NOT

PREVAIL ON THAT MOTION

The district court abused its discretion when it decided to award

damages to Defendant, which had moved to compel production of Plaintiff’s

tax records. The district court denied Defendant’s motion in its minute order,

but also ordered Plaintiff to pay Defendant’s attorney’s fees. See Minute

(Civil Docket #78) ER-34 (Vol. I). The order of fees was in error.

Under the Federal Rules of Civil Procedure:

If the motion is granted – or if the disclosure or requested

discovery is provided after the motion was filed – the court must,

after giving an opportunity to be heard, require the party or

deponent whose conduct necessitated the motion, the party or

attorney advising that conduct, or both to pay the movant’s

reasonable expenses incurred in making the motion, including the

attorney’s fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting is

good faith to obtain the disclosure or discovery

without court action;

(ii) the opposing party’s nondisclosure, response or

objection was substantially justified; or

(iii) other circumstances make an award of expenses

unjust.

Fed. R. Civ.P. 37(a)(5)(A)(emphasis supplied).


54

The Rule is clear that the district court may order payment of attorneys

fees only if the motion to compel is granted. The district court denied

Defendant’s motion, and therefore granting of attorneys fee was erroneous

and must be reversed.

CONCLUSION

In view of the above, the plaintiff prays that this Court reverse the

decision of the district court.

Dated this 7th day of March, 2014.

/s/

JUAN T. LIZAMA

Attorney for Plaintiff-Appellant


55

ADDENDUM


56

COMMONWEALTH CODE

2 CMC, Div. 4

Title 2

(2 CMC §§4991-4992)

§4991. Limitation on Article XII Actions

(a) Notwithstanding any other provision of law, no action for the

recovery of real property, or of any interest in real property, brought

pursuant to NMI Const. art. XII, shall be allowed or maintained

unless it appears that the plaintiff, or his ancestor, grantor, or other

predecessor in title, was seized or possessed of the property, or of

the interest in property which he seeks to reclaim, within six years

before the commencement of the action.

(b) Except for an extension of time by fraudulent concealment as set

forth at 7 CMC §2509, the time prescribed in this section for

bringing an action is absolute, and applies notwithstanding any

disability or lack of knowledge on the part of the plaintiff or any

other person, or absence from the Commonwealth of the Northern

Mariana Islands of the plaintiff, or of any other person, and

notwithstanding any other provisions of law, including any provision

for tolling a statute of limitation, excepting that, for six months after

October 29, 1991, the time limit prescribed in this section shall be

subject to the “grace period” exception outlined in 2 CMC §4992.

(c) Nothing is this section shall extend the time for bringing an action,

or revive any right of action or interest in real property that would

otherwise be expired or unenforceable.

(d) The provisions of this section shall apply to every action that may be

brought pursuant to NMI Const. art. XII for the recovery of land or

of an interest in land, whether the cause of action accrued before or

after October 29, 1993, excepting only:


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(1) Actions brought within the “grace period” set forth in 2 CMC

§4992; and

(2) Actions brought by the Commonwealth government. The

Commonwealth government shall not be affected by this

statute of limitations.

§4992. Application to Existing Causes of Action; Grace Period.

Notwithstanding any provision of 2 CMC §4991, an action brought pursuant

to article XII of the Commonwealth Constitution for the recovery of land or

an interest in land may be maintained if:

(a) It is not barred by any applicable period or statute of limitations

existing immediately prior to October 29, 1993, and

(b) It is commenced within six months of October 29, 1993.

4 CMC, Division 5

Title 4

CHAPTER 1

CONSUMER PROTECTION

(4 CMC §§ 5101 et seq.)

§5101. Short Title.

This chapter may be cited as the Consumer Protection Act.

…

§5110. Statute of Limitations

Any action to enforce any cause of action pursuant to this article shall

be commenced within four years after the cause of action accrued.

5 CMC, Division 3

Title 5 (Uniform Commercial Code)

Division 3 (Commercial Paper)

[5 CMC §3122]


58

§3122. Accrual of Cause of Action.

(1) A cause of action against a maker or an acceptor accrues:

(a) In the case of a time instrument on the day after maturity;

(b) In the case of a demand instrument upon its date or, if no date

is stated, on the date of issue.

(2) A cause of action against the obligor of a demand or time certificate

of deposit accrues upon demand, but demand on a time certificate

may not be made until on or after the date of maturity.

(3) A cause of action against a drawer of a draft or an indorser of any

instrument accrues upon demand following dishonor of the

instrument. Notice of dishonor is a demand.

(4) Unless an instrument provides otherwise, interest runs at the rate

provided by law;

(a) In the case of a maker, acceptor or other primary obligor of a

demand instrument, from the date of demand.

(b) In all other cases from the date of accrual of the cause of

action.

7 CMC, Div. 2

Title 7

CHAPTER 5

(7 CMC §§2501 et seq.)

§2501. Presumption of Satisfaction of Judgment.

A judgment of any court shall be presumed to be paid and satisfied at

the expiration of 20 years after it is rendered.

§2502. Limitation of Twenty Years.

(a) The following actions shall be commenced only within 20 years

after the cause of action accrues:


59

(1) Actions upon a judgment,

(2) Actions for the recovery of land or any interest therein.

(b) If the cause of action first accrued to an ancestor or predecessor of

the person who presents the action, or to any other person under

whom he or she claims, the 20 years shall be computed from the

time when the cause of action first accrued.

§2503. Limitation of Two Years

The following actions shall be commenced only within two years after

the cause of action accrues:

(a) Actions for assault and battery, false imprisonment, or slander;

(b) Actions against the Director of Public Safety, a police officer or

other person duly authorized to serve process, for any act or

omission in connection with the performance of official duties.

(c) Actions for malpractice, error, or mistake against physicians,

surgeons, dentists, medical or dental practitioners, and medical or

dental assistants.

(d) Actions for injury to or for the death of one caused by the wrongful

act or neglect of another, or a depositor against a bank for the

payment of a forged or raised check, or a check with bears a forged

or unauthorized endorsement. This subsection shall not apply to

actions for injury to the former Saipan Credit Union or its

depositors, shareholders, investors, or guarantors, on account of their

interest therein, provided that such actions are brought within 10

years of the date of discovery of the injury.

§2504. Actions By or Against the Estate of a Deceased Person.

Any action by or against the executor, administrator or other

representative of a deceased person for a cause of action in favor of, or


60

against, the deceased shall be brought only within two years after the

executor, administrator, or other representative is appointed or first takes

possession of the assets of the deceased.

§2505. Limitation of Six Years.

All actions other than those covered in 7 CMC §§ 2502, 2503, and 2504

shall be commenced within six years after the cause of action accrues or, in

the case of actions brought by or in behalf of the former Saipan Credit Union

or its depositors, shareholders, investors, or guarantors on account of their

interest therein, within 10 years after the cause of action accrues.

§2506. Disabilities.

If the person entitled to a cause of action is a minor or is insane or is

imprisoned when the cause of action first accrues, the action may be

commenced within the time limits in this chapter after the disability is

removed.

§2507. Mutual Account, Partial Payment on Account

In an action brought to recover the balance due upon a mutual and open

account, or upon a cause of action upon which partial payments have been

made, the cause of action shall be considered to have accrued at the time of

the last terms proved in the account.

§2508. Extension of Time by Absence from Commonwealth.

If at the time a cause of action accrues against any person, that person is

out of the Commonwealth, the action may be commenced within the time

limits in this chapter after the person comes into the Commonwealth. If, after

a cause of action accrues against a person, that person departs from and

resides out of the Commonwealth, the time of absence shall be excluded in

determining the time limit for commencement of the action.

§2509. Extension of Time by Fraudulent Concealment.


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If any person who is liable to any action shall fraudulently conceal the

cause of action from the knowledge of the person entitled to bring it, the

action may be commenced at any time within the time limits within this

chapter, and within 2 CMC §§4991 and 4992, after the person who is entitled

to bring the same shall discover or shall have had reasonable opportunity to

discovery that he has such cause of action, and not afterwards.

§2510. Effect Upon Causes Existing on May 28, 1951.

For the purpose of computing the limitations of time provided in this

chapter, any cause of action existing on May 28, 1951, shall be considered to

have accrued on that date.

§2511. Limitation of Time for Commencing.

A civil action or proceedings to enforce a cause of action mentioned in

this chapter may be commenced within the period of limitation herein

prescribed, and not thereafter, except as otherwise provided in this chapter.

§2512. Reckoning of Period.

Except as otherwise provided, periods prescribed in this chapter shall be

reckoned from the date when the cause of action accrued; provided that in the

case of causes of action accruing to the former Saipan Credit Union or its

depositors, shareholders, investors, or guarantors on account of their interest

therein, such periods shall be reckoned from the date of discovery of the cause

of action.

§2513. Contrary Agreements.

No agreement made subsequent to the effective date of this section for a

period of limitation different from the period described in this chapter shall be

valid.

§2514. Existing Rights of Action.


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Revision of this chapter shall not be construed to extinguish any rights

or remedies which have accrued to any party prior to such revision, unless

specifically provided otherwise.

7 CMC, Div. 3

Title 7

CHAPTER 4

(7 CMC §3401)

Applicable Law

§3401. Applicability of Common Law.

§3401. Applicability of Common Law.

In all proceedings, the rules of the common law, as expressed in the

restatements of the law approved by the American Law Institute and, to the

extent not so expressed a generally understood and applied in the United

States, shall be the rules of decision in the courts of the Commonwealth, in the

absence of written law or local customary law to the contrary; provided, that

no person shall be subject to criminal prosecution except under the written law

of the Commonwealth.

COMMONWEALTH RULES OF APPELLATE PROCEDURE

CERTIFIED QUESTIONS

Rule 13. Certified Questions: From Federal Court

(a) When appropriate: A federal court may certify to this Court

questions of Commonwealth law where the federal court finds that:

(1) The question may be determinative in the proceedings before it;

and

(2) There is no controlling precedent in the decisions of this Court.


63

(b) How brought. To certify a question, the federal court must prepare a

Certification Order and forward it to this Court.

(1) Contents of the Certification Order. The Certification Order must

set forth:

(A) The question or questions of law to be answered;

(B) A statement of facts explaining the controversy from which

the question or questions of law arose; and

(C) Each party’s name and contact information, or attorney’s

name and contact information if represented.

(2) Preparing the Certification Order. The Certification Order shall

be prepared by the certifying court and signed by the judge presiding

over the proceedings from which the certified question originates.

(3) Forwarding the Certification Order. The clerk of the certifying

court shall forward the Certification Order under official seal to

this Court.

(c) Procedure in This Court.

(1) Docketing. Immediately upon receiving a Certification Order, the

Clerk shall docket and forward it to the Court.

(2) Preliminary Examination. The Court shall preliminarily examine

the Certification Order for sufficiency.

(A) Clarification. If the Court believes any aspect of the

Certification Order requires clarification, the Court may

require the certifying court to amend the Certification Order

accordingly.

(B) Record. If the Court determines all or any portion of the

record before the certifying court would be beneficial in


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answering the certified question, the Court may require such

portion be appended to the Certification Order.

(C) Dismissal for Insufficiency. If the certifying court is unable

or unwilling to provide sufficient clarification or the portion

of the record as requested by the Court, the Court may reject

the Certification Order as insufficient.

(3) Order Accepting or Refusing the Question. The Court will issue

an order either accepting or refusing the question at its sole

discretion with or without cause.

(4) Briefing. If the Court determines the case should be briefed, a

briefing schedule will be set and the parties notified.

(A) No briefs will be accepted other than those pursuant to a

briefing schedule.

(B) These Rules control briefing to the extent not specifically

contradicted by the briefing schedule or Court order.

(C) Citing to Record. A party wishing to direct the Court’s

attention to any portion of the record before the certifying

court shall:

i. If the portion is appended to the Certification Order,

cite that portion of the Certification Order; or

ii. If the portion has not been appended to the

Certification Order, append the portion to the brief.

(d) Costs. Costs shall be the same as in civil appeals.

(1) Borne Equally. Costs shall be equally divided between the parties

unless:

(A) Otherwise ordered by the certifying court in its order of

certification; or


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(B) Otherwise ordered by this Court.

(2) Commonwealth Exempted. If the Commonwealth government or

any of its instrumentalities is a party, it shall be exempted from

paying its divided share.

(e) Certification. The Clerk shall certify the opinion in response to the

Certification Order within 30 days after the issuance of such

opinion.


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9TH CIRCUIT CASE NO. 13-17434

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance With type-Volume Limitation,

Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 13,197 words, excluding the parts

of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(6) because this brief has been prepared in a proportionally spaced

type-face using Windows 7 word processing program in a plain, roman

style using spaced face of 14 point.

/s/

JUAN T. LIZAMA


Dated this 7th day of March, 2014


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STATEMENT OF RELATED CASES

PURSUANT TO CIRCUIT RULE 28-2.6

The undersigned hereby certifies that no known related cases are

pending in the U.S. 9th Circuit Court of Appeals.

Dated this 7th day of March, 2014.

/s/

JUAN T. LIZAMA



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CERTIFICATE OF SERVICE

(WHEN All Case Participants are Registered for the Appellate CM/ECF)

I hereby certify that I electronically filed the foregoing with the Clerk of

the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on March 7, 2014.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

/s/

JUAN T. LIZAMA


Dated this 7th day of March, 2014


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