United States District Court, D. Kansas
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, District Judge.
This matter comes before the Court on plaintiff's motion for reconsideration of the Court's dismissal of certain claims against UBS Securities LLC ("UBS") (Case No. 12-2591, Doc. # 224); the Credit Suisse defendants (collectively "Credit Suisse") (Case No. 12-2648, Doc. # 225); and the Morgan Stanley defendants (collectively "Morgan Stanley") (Case No. 13-2418, Doc. # 172). In those rulings, the Court held that, in light of its ruling that the limitations period imposed by the Extender Statute, 12 U.S.C. § 1787(b)(14) could not be extended by tolling agreement, plaintiff could not alternatively rely on the doctrine of equitable estoppel to avoid dismissal of certain claims as untimely. The Tenth Circuit then issued its ruling in NCUAB v. Barclays Capital Inc., ___ F.3d ___, 2015 WL 876526 (10th Cir. Mar. 3, 2015), a related case, and it held that plaintiff was not precluded from asserting equitable estoppel. Plaintiff now seeks reconsideration of the Court's rulings concerning equitable estoppel in light of the Tenth Circuit's decision in Barclays. The Court grants that motion for reconsideration as applied to UBS and Credit Suisse, but it denies the motion as applied to Morgan Stanley.
I. Governing Standard
As this Court has noted previously, see Johnson v. Simonton Bldg. Props., Inc., 2009 WL 902409 (D. Kan. Mar. 31, 2009) (Lungstrum, J.), a motion for reconsideration of a dispositive ruling involving only some claims in a case is not governed by Rule 59(e) (because no judgment has been entered) or by Local Rule 7.3 (which provides standards for reconsideration of non-dispositive rulings, while referring to Rules 59(e) and 60 for reconsideration of dispositive rulings). See id. at *2. Nevertheless, "it is well within the court's discretion to revise an interlocutory order at any time prior to the entry of final judgment." See id. (citations omitted); see also Fed.R.Civ.P. 54(b) (orders adjudicating fewer than all claims may be revised before final judgment); Fed.R.Civ.P. 60(b)(6) (court may relieve a party from an order for any reason justifying relief). In such an instance, this Court has applied the standards for reconsideration under Rule 59(e) and Local Rule 7.3(b), which allow a party to seek reconsideration based on a change in controlling law. See Johnson, 2009 WL 902409, at *2.
In this case, plaintiff asserts that Barclays changed the controlling law with respect to its ability to rely on the doctrine of equitable estoppel in these circumstances. Because in Barclays the Tenth Circuit effectively reversed this Court's ruling that equitable estoppel was not available as an alternative to reliance on a tolling agreement to avoid operation of the Extender Statute's limitations period, the Court agrees that it is appropriate to reexamine its prior rulings in these cases in light of Barclays. 
II. The Barclays Opinion
In the related action against Barclays, in dismissing all claims as time-barred, the Court relied on its prior rulings in the case against Credit Suisse that the Extender Statute's limitations period could not be tolled by tolling agreement and that plaintiff could not rely in the alternative on the doctrine of equitable estoppel. On appeal, the Tenth Circuit agreed that the Extender Statute's limitations period could not be tolled by agreement. See Barclays, 2015 WL 876526, at *4. The Tenth Circuit further held, however, that plaintiff was not precluded from relying on equitable estoppel in that case. See id. at *5-7. The court began its analysis of that issue as follows:
Setting aside the contractual agreement to toll the statute of limitations-which, we have held, is unenforceable-we are left with Barclays' additional promise not to assert a statute of limitations defense in litigation that counted time agreed to be excluded, even if the limitations defense would be successful as asserted.
See id. at *5 (emphasis in original). The Tenth Circuit then concluded that the Extender Statute imposed a statute of limitations, not a statute of repose to which estoppel could not apply. See id. at *5-7. The court then concluded:
Here, Barclays expressly promised not to raise the statute of limitations defense if doing so would require inclusion of time periods that the parties agreed to exclude, and we hold Barclays to that promise.
It is often the case that an affirmative defense is meritorious and would be successful if raised, but the defense is nevertheless unavailable to the party seeking to assert it, either because that party neglected to raise it in the timely fashion or because that party is estopped from asserting it.... So it is unremarkable that a party can be estopped from asserting a statute of limitations defense, particularly when its promise not to do so is limited in scope, between two parties of equal bargaining strength, and facilitates a strong public policy of encouraging settlements.
See id. at *7.
III. Credit Suisse (Case No. 12-2648)
Plaintiff filed its action against Credit Suisse on October 12, 2012, based on 20 certificates. By Memorandum and Order of April 8, 2013, the Court ruled on Credit Suisse's motion to dismiss the claims as time-barred. The Court ruled that because plaintiff did not file suit within the Extender Statute's three-year limitations period with respect to 19 of the certificates, claims based on those certificates would be time-barred in the absence of some basis for tolling or estoppel. The Court ruled that plaintiff could not rely on the parties' tolling agreement or equitable estoppel, but it rejected Credit Suisse's argument that American Pipe tolling, which plaintiff had asserted with respect to the federal claims based on ...