* Pursuant t o 5 TH C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 United States Court of Appeals

Fifth Circuit 

## FILED

March 23, 2004

Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-60379

In re: DOUBLE J. OPERATING COMPANY, INC.

Debtor

DOUBLE J OPERATING COMPANY, INC.; JOHN B. ECHOLS

Plaintiffs-Appellants,

v.

MARY MAUDE BIRMINGHAM NICHOLS, Executrix of the Estate of Robert B. Nichols, Jr.; MARY ASHLEY NICHOLS, Executrix of the Estate of Robert B. Nichols, Jr.; FIDELITY AND DEPOSIT COMPANY OF MARYLAND

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Mississippi, Jackson Division

(99-CV-181-BR)

Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM: *

This is an appeal following our remand to district court for

consideration of whether the applicable limitations period had1 See In re Double J. Operating Co., Inc.

, No. 00-60764 (5th

Cir. 2001)(per curiam).

2 See Clymore v. United State s , 217 F.3d 370, 373 (5th Cir. 2000)(citing Hinsley v. Boudloche

, 201 F.3d 638, 644 (5th Cir.
2000)).

3 See id.

4 Cousin v. Lensing

, 310 F.3d 843, 847-48 (5th Cir. 2002),

cert. denied , 123 S. Ct. 2277, 156 L. Ed. 2d 136 (2003).

2 expired, and, in the alternative, whether equitable tolling applied

to the facts of this case. 1 On remand, the district court

determined that the limitations period for Double J’s 11 U.S.C.

§322(d)claim had in fact expired and that equitable tolling did not

operate to save the claim. After reviewing the record, we affirm

on both counts.

Whether the limitations period has expired in this case is

a legal issue. 2 Accordingly, our review of the district court’s

determination is de novo

. 3 But, the district court’s decision that

equitable tolling is inapplicable to the facts of this case is

subject to a highly deferential abuse of discretion review. 4

The parties agree that claims brought under 11 U.S.C. § 322(d)

are subject to a two-year limitations period that begins to run the

day that a trustee is discharged by the bankruptcy court. The

record shows that the trustee in this case was discharged on March

7, 1994. The record also shows no indication that a complaint

stating a 11 U.S.C. § 322(d) claim against the trustee has ever

been filed. Double J argues that because it filed a motion to3

reopen wi th the bankruptcy court within the two-year limitation

period that h ad a § 322(d) complaint attached, the limitation

period did not expi re. Because we agree with the district court

that the motion did not evidence an intention to file the

attachment at the time the motion was filed, a motion to reopen is

not an administrative prerequisite to filing a § 322(d) case, and

no complaint was filed, we conclude that the limitations period has

in fact expired in this case.

Additionally, after reviewing the record, we find no abuse of

discretion in the district court’s determination that the passage

of time and absence of extraordinar y circumstances beyond Double

J’s control preclude the application of equitable tolling in this

case.

AFFIRMED.