* The Honorable David G. Larimer, of the United States

District Court for the Western District of New York, sitting by

designation.

11-4307-cv

Goldblatt, et al. v. National Credit Union Administration

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9th 4 day of November, two thousand twelve.

5

6 PRESENT: RICHARD C. WESLEY,

7 DENNY CHIN,

8 Circuit Judges,

9 DAVID G. LARIMER,

District Judge.* 10

11

12 

13

14 MELVIN GOLDBLATT, JOAN LAZEROW, 

15 MARK D. FETCHER, GLORIA JOHNSTON, 

16 DOUGLAS C. ANTUPIT, 

17

18 Plaintiffs-Appellants,

19

20 -v.- 11-4307-cv

21

22 NATIONAL CREDIT UNION ADMINISTRATION,

23

24 Defendant-Appellee.

25 

26

27
2

1 FOR APPELLANTS: Joseph M. Barnes, Robert I. Reardon, Jr.,

2 The Reardon Law Firm PC, New London, CT.

3

4 FOR APPELLEE: Conor Kells, Trial Attorney, Sandra S.

5 Glover, Assistant United States Attorney,

6 Stuart F. Delery, Acting Assistant

7 Attorney General, Phyllis J. Pyles,

8 Director, Mary Leach, Assistant Director,

9 for Eric H. Holder, Jr., United States

10 Attorney General, Washington, DC.

11

12 Appeal from the United States District Court for the

13 District of Connecticut (Eginton, J.).

14

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16 AND DECREED that the judgment of the United States District

17 Court for the District of Connecticut is AFFIRMED. 

18 Former members of the New London Security Federal

19 Credit Union (“New London”) appeal from a judgment of the

20 United States District Court for the District of Connecticut

21 (Eginton, J.), granting the motion of the National Credit

22 Union Administration (“NCUA”) to dismiss Appellants’ claims

23 for lack of subject matter jurisdiction. The district court

24 determined that Appellants’ action was time-barred pursuant

25 to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §

26 2401(b), because Appellants filed their claim more than six

27 months after the NCUA denied their administrative claims. 

28 The panel has reviewed the briefs and the record in this

29 appeal and agrees unanimously that oral argument is
3

1 unnecessary because “the facts and legal arguments [have

2 been] adequately presented in the briefs and record, and the

3 decisional process would not be significantly aided by oral

4 argument.” Fed. R. App. P. 34(a)(2)(C). We assume the

5 parties’ familiarity with the underlying facts, the

6 procedural history, and the issues presented for review.

7 We review de novo a district court’s dismissal of an

8 FTCA claim as untimely. See Kronisch v. United States, 150

9 F.3d 112, 120 (2d Cir. 1998). The FTCA’s limited waiver of

10 the United States’ sovereign immunity against tort claims

11 requires the plaintiff to “comply with several strictly

12 construed prerequisites.” Johnson v. Smithsonian Inst., 189

13 F.3d 180, 189 (2d Cir. 1999). At issue here is compliance

14 with the FTCA’s statute of limitations, under which the

15 plaintiff must file her claim against the United States

16 “within six months after the date of mailing . . . of final

17 denial of the claim by the agency to which it was

18 presented.” 28 U.S.C. § 2401(b). Claims filed outside of

19 this window “shall be forever barred.” Id. 

20 The district court here properly determined that it

21 lacked subject matter jurisdiction over Appellants’ claims

22 against the NCUA because Appellants filed their complaint
1 The court simultaneously granted the NCUA’s motion to

be substituted as plaintiff after determining that the NCUA

was the real party in interest. Goldblatt v. Wells Fargo

Advisors, LLC, No. 3:10CV924, 2011 WL 446896, at *3 (D.

Conn. Feb. 1, 2011). The court also granted the NCUA’s

motion to consolidate the action with the NCUA’s

substantially similar prior filed action. Id.

4

1 more than six months after the agency denied their

2 administrative claims. Appellants’ argument that their FTCA

3 claim was timely filed on August 17, 2010, when it moved to

4 add the NCUA as a party-defendant in a separate litigation,

5 is unavailing. The unsuccessful effort to add the NCUA as a

6 party in the other case did not toll the limitations period. 

7 Cf. McGregor v. United States, 933 F.2d 156, 161 (2d Cir.

8 1991) (filing an FTCA complaint that was ultimately

9 dismissed for defective service of process did not toll the

10 limitations period and precluded plaintiff from refiling a

11 second complaint), superseded on other grounds, Zapata v.

12 City of N.Y., 502 F.3d 192 (2d Cir. 2007). After receiving

13 the NCUA’s rejection of their administrative claims on

14 August 11, 2010, Appellants moved to amend their complaint

15 to add the NCUA as a defendant in ongoing litigation over

16 the collapse of New London. The district court denied this

request on February 1, 2011.1 17 At that time, Appellants

18 still had ten days to file a complaint asserting tort claims
2 In this Circuit, it is an open question whether

equitable tolling is available for tort claims brought

pursuant to the FTCA. See, e.g., A.Q.C. ex rel. Castillo v.

United States, 656 F.3d 135, 144 n.6 (2d Cir. 2011). Other

circuits are split on this issue. Compare Santos ex rel.

Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009),

with Adams v. United States, 658 F.3d 928, 933 (9th Cir.

2011), and In re FEMA Trailer Formaldehyde Prods. Liab.

Litig., 646 F.3d 185, 189 (5th Cir. 2011). 

5

1 against the NCUA within the FTCA’s six-month window. 

2 Because Appellants did not file their complaint until March

3 3, 2011, the district court properly deemed it untimely and

4 dismissed for lack of subject matter jurisdiction.

5 Appellants argue in the alternative that they are

6 entitled to equitable tolling of their claim because they

7 pursued their rights with diligence. Regardless of whether

equitable tolling is available for FTCA claims,2 8 Appellants

9 have not satisfied this Court that equitable tolling is

10 appropriate here. “Generally, a litigant seeking equitable

11 tolling bears the burden of establishing two elements: (1)

12 that he has been pursuing his rights diligently, and (2)

13 that some extraordinary circumstance stood in his way.” See

14 A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144

15 (2d Cir. 2011) (internal quotation marks omitted). We are

16 not persuaded that Appellants pursued their rights

17 diligently, and they do not argue that an extraordinary
6

1 circumstance prevented them from filing their complaint

2 against the NCUA before February 11, 2011. This “drastic

3 remedy” is therefore unwarranted. See id. (internal

4 quotation marks omitted). We have considered Appellants’

5 remaining arguments and find them to be without merit.

6 For the foregoing reasons, the judgment of the district

7 court is hereby AFFIRMED.

8

9 FOR THE COURT:

10 Catherine O’Hagan Wolfe, Clerk

11

12