Full Opinion

Third District Court of Appeal State of Florida Opinion filed February 26, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D17-270 Lower Tribunal No. 15-27932 ________________ Federal Deposit Insurance Corporation, etc., Appellant, vs. Nationwide Equities Corporation, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Gisela Cardonne Ely, Senior Judge. Koleos Rosenberg McMahon P.L., Daniel J. Koleos, and Leonard D. Blumenthal (Fort Lauderdale); Duncan N. Stevens (Arlington, VA), for appellant. Hodkin Stage, Adam J. Hodkin, and Jon K. Stage (Boca Raton), for appellee. Before FERNANDEZ, LOGUE 1, and SCALES 2, JJ. FERNANDEZ, J. 1 Did not participate in oral argument. 2 Did not participate in oral argument. Appellant Federal Deposit Insurance Corporation, as receiver for BankUnited, F.S.B., the bank receiver, appeals from a dismissal of its breach of contract action based on the expiration of the statute of limitations. We affirm. FACTS AND PROCEDURAL HISTORY BankUnited, F.S.B. (“BankUnited”) and Nationwide Equities Corporation (“Nationwide”) entered into a mortgage broker agreement (“MBA”). The MBA included a mandatory forum-selection clause requiring that any action arising therefrom be filed in Miami-Dade County Circuit Court. On May 21, 2009, BankUnited failed and the Federal Deposit and Insurance Corporation (“the FDIC”) was appointed as receiver for the bank. Pursuant to the applicable federal statute of limitations, the FDIC had six years from the date of its appointment to commence this action. See 12 U.S.C. § 1821(d)(14)(A)(i)(I) (2013). On May 18, 2015, three days before the expiration of the six years, the FDIC filed suit in federal court alleging, among other things, breach of contract regarding two loans submitted by Nationwide. See FDIC v. Nationwide Equities Corp., Case 1:15-cv-21872-KMM (ECF No. 29) (“federal action”). Claiming that actions brought by the FDIC arise under the laws of the United States, the FDIC invoked 2 federal jurisdiction under 12 U.S.C. § 1819(b)(2)(A) (1994).3 Citing the forum- selection clause in the MBA, Nationwide moved to dismiss the complaint. In its response, the FDIC argued, and Nationwide agreed, that a venue challenge based on a forum-selection clause must be raised within the doctrine of forum non-conveniens (“FNC”). In addressing the “adequate alternative forum” prong of the analysis, Nationwide simply made reference to the parties’ venue choice, as per the MBA. In its filings, Nationwide stated that, “[t]he FDIC [would] not be prejudiced or inconvenienced by filing this action in State Court because . . . it is the correct forum and the one chosen by the parties.” The federal court dismissed the action on grounds of FNC. In doing so, Chief United States District Judge K. Michael Moore found that, [the] FDIC-R can reinstate its lawsuit in state court without undue inconvenience or prejudice. FDIC-R attempts to argue that it would suffer prejudice by concluding, again, that this Court’s original jurisdiction over the matter renders state court unavailable. FDIC-R’s conclusory statement warrants no merit, as discussed supra, state court in Dade County, Florida is an adequate and available alternative forum. Federal Action at (ECF No. 29 at 6-7). The FDIC never appealed this ruling to the federal appellate court. Instead, it refiled the action in the circuit court in Miami-Dade County. Nationwide moved for 3 The statute states in part, “… all suits of a civil nature at common law or in equity to which the [FDIC], in any capacity, is a party shall be deemed to arise under the laws of the United States.” 12 U.S.C. § 1819 (b)(2)(A) (1994). 3 dismissal based on the expiration of the statute of limitations. In response, the FDIC argued that dismissal was improper due to the representations made by Nationwide in the federal action. Notwithstanding, the trial court granted the motion, dismissed the case, and denied the FDIC’s request for rehearing. The FDIC then sought relief from the federal court under Federal Rule of Civil Procedure 60(b)(3) claiming, as it does here, that Nationwide misled the federal court. Chief Judge Moore was not persuaded. In denying the motion, the court found that the FDIC failed to preserve any statute of limitations issues. Specifically, the court concluded, [The] FDIC made no mention of the statute of limitations running. [It] also argued that the appropriate way to enforce a forum-selection clause is through the doctrine of [FNC], and proceeded to state the standard, analyze the factors set forth therein, and conclude that dismissal was inappropriate. Nationwide replied and addressed these points, and asked that the Court dismiss on the basis of [FNC]. FDIC’s argument that “[b]ecause Nationwide made these representations for the first time in its reply brief, the [FDIC] did not have an opportunity to respond” is misleading. Although [the FDIC] did not have the last word, [it] appraised the Court of its arguments on the issue and could have certainly sought leave to file supplemental briefing or requested a hearing. . . . . The Court is not persuaded that Nationwide’s argument for dismissal on the basis of FNC due to the . . . forum-selection clause equates to a misrepresentation as to the availability of the alternative forum. . . . Furthermore, to the extent that FDIC argues it did not have a full opportunity to brief the issue of [FNC] because it was first raised in Nationwide’s reply to the motion to dismiss, the Court finds this argument disingenuous as well. [The] FDIC could have requested 4 supplemental briefing; it did not. FDIC could have appealed the Order granting the motion to dismiss; it did not. Id. at (ECF No. 46 at 3-5). For these, among other reasons, we affirm the trial court’s dismissal. STANDARD OF REVIEW We review an order granting a motion to dismiss de novo. Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla. 3d DCA 2018). Affirmative defenses, such as the expiration of the statute of limitations, may not ordinarily be considered in a motion to dismiss. Pontier v. Wolfson, 637 So. 2d 39, 40 (Fla. 2d DCA 1994). Rather, they must be pled in the answer to the complaint. Id. ANALYSIS The FDIC argues that the trial court erred in dismissing its lawsuit as untimely, as the doctrine of equitable tolling stops the statute of limitations from running when a suit is initially filed in the wrong forum. In its view, the statute of limitations was tolled while the federal action was pending—rendering the Miami-Dade action timely-filed. Along these same lines, the FDIC argues that the doctrine of judicial estoppel bars parties, like Nationwide, from making representations to one court, obtaining a benefit from that position, and later making an inconsistent representation to another court to the detriment of the opposing party. While both equitable remedies are available in certain instances, the application of the same is not warranted here. 5 “Equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that would otherwise be barred by a limitations period.” Machules v. Dep’t of Admin., 523 So. 2d 1132, 1133 (Fla. 1988). The doctrine is generally applied where a plaintiff has been misled or lulled into inaction and has, in some extraordinary way, been prevented from asserting his rights, or has timely asserted his rights in the wrong forum. See, e.g., Burnett v. New York Cent. R.R., 85 S. Ct. 1050, 1055 (1965) (emphasis added); see also, Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987) (focusing on the plaintiff’s excusable ignorance of the limitations period). The burden, however, is on the moving party to show that relief is warranted. Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993). The Machules court applied the tolling doctrine where an employee filed a grievance, following his termination, instead of appealing to the designated administrative agency. The employer, however, acknowledged the grievance and scheduled a hearing for the day after the expiration of the appellate deadline. The employee, a layperson, raised the same claim in a subsequent untimely appeal. Following the decision in Burnett, the court concluded that the plaintiff had acted with reasonable prudence, but was misled by his employer. See Machules, 523 So. 2d at 1132; see also, Burnett, 85 S. Ct. at 1054-1055 (applying equitable tolling after concluding that plaintiff failed to file his action in federal courts, “not because he was disinterested, but solely because he felt that his state action was sufficient”). 6 Here, the FDIC suggests that the circumstances here are similar to what occurred in Burnett. Nationwide, on the other hand suggests that this case is distinguishable because of the bargained-for forum-selection clause. Booth v. Carnival Corp., 522 F.3d 1148 (11th Cir. 2008), a wrongful death action filed by the estate of a deceased passenger, is instructive. The cruise ticket established a one year time limitation for filing suit, and included a forum-selection clause designating the federal court in the Southern District of Florida as the appropriate venue. 4 Plaintiff sued in circuit court Miami-Dade County, sixteen days before the expiration of the limitation period. Several months later, while the state case was pending, but after the contractual limitation period had run, he filed a second identical complaint in federal court. That case was closed pending the outcome of the state litigation. Meanwhile, in the state case, Carnival filed, and the court denied, a motion to dismiss due to improper venue. Thereafter, the federal action was reopened and Carnival sought a dismissal claiming untimeliness. The federal court denied the motion, and the Eleventh Circuit affirmed, concluding that 4 Alternatively, the ticket provided that the state courts in Miami-Dade County would serve as an appropriate alternative forum, if the federal court was without subject matter jurisdiction. 7 Booth had, in no way, slept on his rights, because Carnival was well aware—within the limitation period—that Booth was actively pursuing his claim. 5 Here, relying on Booth, among other cases, the FDIC suggests that its inaction in failing to request that the federal court condition its dismissal on a waiver of statute of limitations was caused by Nationwide’s misrepresentations to the federal court. For these reasons, the FDIC urges that equitable estoppel applies. These arguments fail to persuade. While the remedies sought by the FDIC are available under certain circumstances, such as those in the Machules case, they have no application here. The plaintiff in Machules was a lay person that was misled into inaction by his employer. 523 So. 2d at 1134.6 Those facts do not exist in this case. Here, the FDIC, a federal agency, is represented by a team of attorneys that were duty-bound to be mindful of, and preserve, the agency’s rights. Receivership of failed financial institutions by the FDIC is not a novel concept. The FDIC has, no doubt, been involved in hundreds of such appointments. One would expect that, at a minimum, the FDIC and/or its counsel reviewed the contract at issue and familiarized 5 We recognize that this Court has cited Booth with approval in Morrissette v. Norwegian Cruise Line Ltd., 25 So. 3d 630, 631 (Fla. 3d DCA 2009). 6 At least one Florida court has declined to extend Machules outside of an administrative setting. HCA Health Servs. of Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. 2d DCA 2004). 8 themselves with the forum-selection clause. With that knowledge in hand, a more prudent approach would have been to comply with the provision, file in Miami- Dade, and place the burden on Nationwide to seek removal. More importantly, the FDIC should have raised the statute of limitations issue and defended against any possible gamesmanship on the part of Nationwide. As noted by the federal judge, they failed to do so by making no mention of the same as a potential issue. See Federal Action at (ECF No. 46 at 6). Nothing in the record suggests that Nationwide either affirmatively waived any of its defenses, or assured the federal court that it would submit to jurisdiction. In sum, Nationwide did not represent to the federal court that the statute of limitations had not run. Like the federal court, we remain unconvinced that Nationwide’s FNC arguments constitute a misrepresentation as to the availability of an alternative forum. The bottom line is that the FDIC knew, or should have known that the statute of limitations could act as a bar to an untimely action in the state court. It should have raised these issues in the district court. It opted not to do so. Nationwide was under no duty to set forth a legal strategy for the FDIC. Common sense dictates that the onus to do so lay solely with the FDIC. Equitable tolling applies where there is “no misconduct on the part of the defendant [and] may delay the running of the limitations period based upon the plaintiff’s blameless ignorance and lack of prejudice to the defendant.” Major League Baseball v. 9 Morsani, 790 So. 2d 1071, 1076 n.11 (Fla. 2001). The FDIC is neither blameless nor ignorant. Importantly, the FDIC urged, and the federal court rejected, the application of FDIC v. Prysma Lending Grp., LLC., No. 15-21911 (S.D. Fla. Apr. 6, 2016). There, the court considered the appropriateness of a forum-selection clause7 in the context of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”). The court concluded that the clause, which required a state forum, violated the FIRREA’s public policy, and thus, denied the defendant’s motion to dismiss on grounds of FNC. Having concluded that the public policy argument was a sufficient basis for a denial, the court never actually considered the statute of limitations argument, or any evidence proffered as to the FDIC’s own dilatory conduct. For these reasons, the federal court in the instant case rejected the application of Prysma as a basis for relief, notwithstanding the fact that the case involved the same plaintiff and a similar forum-selection clause. Nationwide suggests that the FDIC’s intentional breach of its contractual obligation to file suit in the parties’ bargained-for forum disqualifies it from the equitable remedies it now seeks. We agree. 7 The forum-selection clause was entered into prior to the FDIC assuming the role of receiver. 10 Nationwide persuasively argued below, and the record supports, that the FDIC’s intentional flouting of its obligation to file in Miami-Dade was no mistake. The FDIC sat on its rights, and waited until three days before the expiration of the six year statute of limitations to file its action in a federal forum in contravention of the forum-selection clause. Importantly, the FDIC failed to apprise the federal court that the statute of limitations had expired. Had it done so, the federal court could have conditioned the dismissal upon Nationwide’s agreement to waive its statute of limitations defense in state court. Further, as the federal judge noted, the FDIC could have asked for further briefing when the issue of the adequacy of the forum arose, and could have likewise sought reconsideration and/or appealed the ruling. 8 It chose to do neither. Consistent with the above, judicial estoppel is likewise inapplicable here. We, therefore, affirm. 8 Calling to mind a classic aphorism by Theodore Roosevelt (“If you could kick the person in the pants responsible for most of your trouble, you wouldn’t sit for a month”) the federal court, essentially, found that the FDIC had dug its own grave. See Federal Action at (ECF No. 46 n.2). 11 Federal Deposit Insurance Corporation v. Nationwide Equities Corporation, 3D17-270 Scales, J., concurring. The FDIC concedes that its lawsuit against Nationwide was filed in the Miami-Dade County Circuit Court after the expiration of the statute of limitations; nevertheless, the FDIC argues that the trial court erred, as a matter of law, by not applying either the doctrine of judicial estoppel or the doctrine of equitable tolling to save its otherwise untimely lawsuit. I concur in the majority’s well-reasoned opinion affirming the trial court’s dismissal of the FDIC’s lawsuit, and write separately only to address the practical reality of what a reversal, under either doctrine, would cause this Court to do in this case. Judicial Estoppel “Judicial estoppel bars a party who successfully takes a position in a prior judicial proceeding from proceeding with a conflicting position in a subsequent action to the prejudice of the adverse party.” Keyes Co. v. Bankers Real Estate Partners, Inc., 881 So. 2d 605, 606 (Fla. 3d DCA 2004). The elements of judicial estoppel are: (1) the party against whom estoppel is sought must have asserted a clearly inconsistent or conflicting position in a prior judicial proceeding; (2) the position assumed in the former proceeding must have been successfully maintained; (3) both proceedings must involve the same parties and same questions; (4) the party claiming estoppel must have relied on or been misled by the former position; 12 and (5) the party seeking estoppel must have changed his or her position to his or her detriment based on the representation. Fintak v. Fintak, 120 So. 3d 177, 186 (Fla. 2d DCA 2013) (emphasis added); Bueno v. Workman, 20 So. 3d 993, 997 (Fla. 4th DCA 2009) (“The elements of judicial estoppel are the same as equitable estoppel, with the added elements of successfully maintaining a position in one proceeding, while taking an inconsistent position in a later proceeding, in which the same parties and questions are involved.”). The FDIC argues that the circuit court reversibly erred by not judicially estopping Nationwide from asserting its statute of limitations defense. Specifically, the FDIC argues that, as a matter of law, it was clearly inconsistent for Nationwide to maintain below that the statute of limitations barred the instant claim after Nationwide had previously asserted – in its motion to dismiss the FDIC’s federal court action on forum non conveniens grounds – that the Miami-Dade County Circuit Court was an available, alternate forum to litigate the FDIC’s contract dispute with Nationwide. I disagree with the FDIC’s argument both for the reasons stated in the majority opinion and for the reasons that follow. After the circuit court entered its dismissal order (implicitly rejecting the FDIC’s judicial estoppel argument), the federal district court considered and denied the FDIC’s Federal Rule of Civil Procedure 60(b) motion,9 conclusively determining 9 The FDIC’s rule 60(b) motion is not in our record. The federal district court’s eleven-page, elaborated rule 60(b) order denying the FDIC’s Rule 60(b) motion, 13 that, under rule 60(b)(3), 10 the federal court had not been the recipient of any misrepresentation. The rule 60(b) order states, in relevant part: “The Court is not persuaded that Nationwide’s argument for dismissal on the basis of forum non conveniens due to the MBA’s forum-selection clause equates to misrepresentation as to the availability of the alternative forum. Relief under Rule 60(b)(3) is not though, was provided to us, without objection, in an appendix to Nationwide’s answer brief; and, again without objection, the order was extensively argued in Nationwide’s answer brief. Contrary to the dissent’s suggestion that the federal court’s order must be “in the record” to be considered, it is entirely appropriate for this Court to consider decisional authority from another court, even if the lower court did not have the benefit of such authority. Indeed, Florida Rule of Appellate Procedure 9.225 expressly authorizes the filing of a decision of another court as supplemental authority even if such authority is “discovered after service of the party’s last brief in the cause” so long as the authority is “significant to the issues raised” in the appeal. It would be hard to argue that the federal court’s rule 60(b) order – essentially adjudicating the exact same issues we are called upon to decide – lacks sufficient significance. Also, the dissent suggests the FDIC’s rule 60(b) motion was premised only on subsection (b)(3) – authorizing a federal district court to relieve a party from an order because of another party’s fraud, misrepresentation, or misconduct. The federal district court’s rule 60(b) order, however, discusses in detail why the FDIC is entitled to no relief not only on the basis of subsection (b)(3), but also on the basis of both subsection (b)(1) – authorizing relief based on mistake – and, as discussed below, subsection (b)(6) – authorizing relief based on any other reason justifying relief. 10 Florida Rule of Civil Procedure 1.540(b) is patterned after Federal Rule of Civil Procedure 60(b). See Casteel v. Maddalena, 109 So. 3d 1252, 1256 (Fla. 2d DCA 2013). Federal rule 60(b)(3), like Florida rule 1.540(b)(3), authorizes a federal district court to relieve a party from a final judgment or order for “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” 14 appropriate.”11 Implicit – if not explicit – in the federal court’s rule 60(b) order is that Nationwide did not take an inconsistent position, i.e., it was not inconsistent for Nationwide to assert both (i) that state court was an adequate forum for the FDIC’s claim, and later, (ii) that the FDIC’s claim was barred by the statute of limitations. The FDIC did not appeal this rule 60(b) order. While the circuit court did not have the benefit of the federal district court’s rule 60(b) order, we do. Because the federal court conclusively determined that Nationwide, in arguing for dismissal on the basis of forum non conveniens, had not misrepresented the availability of the Miami-Dade County Circuit Court as an alternate forum, it would be entirely incongruent with principles of judicial comity for us, as a matter of law, to conclude otherwise and determine that Nationwide asserted clearly inconsistent positions in the federal and state court proceedings on this issue. Put another way, from a practical perspective, we cannot reverse the circuit court’s determination that the judicial estoppel doctrine is inapplicable in this case without, I dare say, reversing the federal district court’s specific, express determination that it was not misled. In my view, given the unique facts, 11 FDIC v. Nationwide Equities Corp., Case No. 1:15-cv-21872-KMM (ECF No. 46 at 5). 15 circumstances and procedural history of this case, such a result would not only fly in the face of judicial comity, but would be nonsensical. Equitable Tolling The FDIC also argues that the circuit court reversibly erred by not applying the equitable tolling doctrine to prevent the dismissal of the FDIC’s complaint on statute of limitations grounds. I disagree both for the reasons stated in the majority opinion and for the reasons that follow. Unlike judicial estoppel, equitable tolling focuses on the conduct of the plaintiff, rather than of the defendant. See Machules v. Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988). For this doctrine to apply to permit the filing of an otherwise untimely lawsuit, the plaintiff must establish the lack of prejudice to the defendant and either that: (i) the plaintiff was misled or lulled into inaction; (ii) the plaintiff, in some “extraordinary way,” 12 was prevented from asserting the plaintiff’s rights in a 12 “[T]he principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); see also Aleong v. State, Dept. of Bus. & Prof’l Regulation, 963 So. 2d 799, 801 (Fla. 4th DCA 2007) (concluding that the plaintiff’s actions, even if constituting excusable neglect, “did not amount to an ‘extraordinary’ circumstance” under the equitable tolling doctrine); Patz v. Dep’t of Health, 864 So. 2d 79, 81 (Fla. 3d DCA 2003) (recognizing that the Machules court, in defining the doctrine of equitable tolling, “did not adopt an excusable neglect standard”). 16 timely manner; or (iii) the plaintiff filed the lawsuit in the wrong forum due to “excusable ignorance.” 13 Id. The FDIC seems to concede that it made no mistake when it filed its lawsuit in federal court. Rather, seemingly conflating the doctrines of equitable estoppel and equitable tolling, it argues that, despite the six-year statute of limitations having already run, the statute of limitations should be tolled because the FDIC was justified in not appealing the federal district court’s forum non conveniens order. The FDIC suggests that it did not appeal the order because it detrimentally relied on Nationwide’s statements to the federal court that the Miami-Dade County Circuit Court was an “adequate alternative forum” and the FDIC would “not be prejudiced or inconvenienced by filing this action in State Court . . . .” Again, after the circuit court below had rejected the FDIC’s equitable tolling argument, the federal district court subsequently considered and denied this very same judicial tolling argument when it conclusively determined that the FDIC was not entitled to relief under the federal rule’s catch-all provision, rule 60(b)(6). 14 Rule 13 The Florida Supreme Court has also used the term “blameless ignorance.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1076 n.11 (Fla. 2001). 14 Specifically, in declining to apply the equitable tolling doctrine to revive the FDIC’s suit, the federal court stated: “Here, no mistake was made. . . . FDIC chose to file in a forum other than the one proscribed [sic] by the forum-selection clause in the MBA.” FDIC v. Nationwide Equities Corp., Case No. 1:15-cv-21872-KMM (ECF No. 46 at 7). 17 60(b)(6) authorizes a federal district court to relieve a party from a final judgment or order for “any other reason that justifies relief.” 15 Although neither rule 60(b)(6), nor the federal court’s elaborated determination that the FDIC is not entitled to relief based on same, is mentioned by the dissent, in my view the federal district court’s express, conclusive determination that the FDIC was not entitled to relief under rule 60(b)(6) is important to this Court’s consideration of whether the circuit court below erred. The federal district court, after hearing and carefully considering all of the FDIC’s arguments – the same “gotcha” and fairness arguments that are being advanced to us – conclusively determined that those reasons did not “justify relief.” As noted, the FDIC did not appeal this rule 60(b) order. Surely, had the federal court thought that it had been hoodwinked, or that Nationwide had somehow pulled a fast one, the federal court would have provided the FDIC relief under rule 60(b)(6). In my view, for this Court now to determine that the FDIC’s arguments require, as a matter of law, reversal of the circuit court would be tantamount to our reviewing and reversing the federal district court’s determinations of virtually identical issues, and, therefore, would offend judicial comity. From a practical perspective, it seems that the FDIC is essentially asking 15 While Florida Rule of Civil Procedure 1.540(b) is virtually identical to its federal counterpart, see Casteel, 109 So. 3d at 1256, rule 1.540(b) does not contain a similar catch-all provision. 18 this Court, under the auspices of the equitable estoppel and equitable tolling doctrines, to review (and reverse) the federal district court’s forum non conveniens order – an order that the federal court chose not to vacate and that the FDIC chose not to appeal. Challenges to federal court orders should, of course, be brought in the appropriate federal court. In sum, the FDIC’s principal argument is that the federal district court erroneously dismissed the FDIC’s breach of contract action on forum non conveniens grounds. We are not the appropriate tribunal to adjudicate that issue. The only issue before this Court is whether the circuit court erred in dismissing a lawsuit filed after the expiration of the statute of limitations. It did not. 19 3D17-270 FDIC v Nationwide Equities Corporation, etc. LOGUE, J. (dissenting) The defendant below, Appellee Nationwide Equities, Corporation, has pulled off an epic “gotcha.” The lawsuit at issue was first filed in federal district court comfortably within the statute of limitations. One might think it impossible to have such a lawsuit dismissed as barred by the statute of limitations. But the defendant managed to do so. First, the defendant waited for the statute of limitations to run. Next, the defendant convinced the federal court to dismiss the federal case so that it could be refiled in the more convenient venue of the Florida circuit courts, where, the defendant maintained, the lawsuit could be reinstated “without undue inconvenience or prejudice.” Finally, when the plaintiff refiled in Florida circuit court, the defendant played the ace hidden up its sleeve: the defendant convinced the Florida circuit court below to dismiss the state case on the basis the case could not be reinstated in Florida because the statute of limitations had run. In this way, the defendant resuscitated the once dead statute of limitations defense. The majority affirms this result reasoning that the plaintiff failed in its duty to “defend[] against any possible gamesmanship on the part of [the defendant].” I respectfully dissent. The dismissal below is a clear reversal under the “anti-gotcha” doctrine of judicial estoppel. “The purpose of judicial estoppel is to preserve the 20 integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposing to suit an exigency of the moment.” Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 914 (Fla. 4th DCA 2013) (citation and quotation omitted). In my view, these facts present a classic example of where judicial estoppel applies to prevent this sort of “gotcha” gamesmanship. FACTS The plaintiff, appellant F.D.I.C., originally filed this case in federal court within the statute of limitations by several days. After waiting for the statute of limitations to expire, the defendant moved to dismiss based on a forum selection clause in the contract at issue which named the Florida circuit courts as the venue for any future litigation. In federal court, a motion to dismiss under a forum selection clause is analyzed under the doctrine of forum non conveniens. In its arguments to the federal district court, the defendant expressly adopted the legal position that that the plaintiff “can reinstate its suit in State Court without undue inconvenience or prejudice.”16 Significantly, when taking the legal position that the case could be reinstated in the Florida courts, the defendant conveniently 16 Def. Nationwide Equities Corp.’s Reply in Supp. of its Mot. to Dismiss and Inc. Memo. of Law Pursuant to the Doctrine of Forum Non Conveniens at 6, Fed. Deposit Ins. Corp. as Receiver for BankUnited, F.S.B. v. Nationwide Equities Corp., No. 1:15-civ-21872-KMM (S.D. Fla. Aug. 13, 2015), ECF No. 22. 21 neglected to inform the court that the statute of limitations had run. Moreover, the timing of when the defendant first adopted this legal position is significant. In its initial motion to dismiss, the defendant did not take any legal position regarding whether Florida was an adequate alternative forum. The defendant argued that the plaintiff “can reinstate its suit in State Court without undue inconvenience or prejudice” for the first time only in its memorandum of law in reply to the plaintiff’s memorandum of law in response to its motion. At that stage in the proceedings, the plaintiff could not file a further response as a matter of right. 17 The district court was persuaded by the defendant’s legal position and adopted it almost word-for-word. The district court dismissed the federal case on forum non conveniens expressly stating in its order “that [the plaintiff] can reinstate its lawsuit in state court without undue inconvenience or prejudice.” 18 Once the plaintiff re-filed in Florida circuit court, however, the defendant adopted the legal position that the lawsuit could not be reinstated in Florida because the statute of limitations had expired. The trial court below granted the motion to dismiss. The plaintiff timely appealed. 17 Fed. S.D. Fla. R. 7.1(c). 18 Order Grant’g Mot. to Dismiss at 6, Nationwide Equities Corp., No. 1:15-civ- 21872-KMM (S.D. Fla. Nov. 30, 2015), ECF No. 29. 22 There are additional facts outside the record of this appeal that are heavily relied upon by the majority and the concurrence. At some point unknown to this record, but after the circuit court dismissed the state complaint, the plaintiff also moved to set aside the federal court’s dismissal of the federal complaint under Federal Rule of Civil Procedure 60(b)(3). Rule 60 authorizes a federal court to set aside a judgment for fraud, misrepresentation, or misconduct. On March 29, 2017, almost two months after the notice of appeal was filed in this case, the federal court denied the plaintiff’s Rule 60(b)(3) motion. ANALYSIS The majority opinion spends seven pages analyzing why equitable tolling does not apply to this case and then holds in a conclusory manner “judicial estoppel is likewise inapplicable.” The first problem with this holding is that equitable tolling and judicial estoppel are separate and distinct doctrines. Compare Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001) (judicial estoppel provides that “[a] claim made or position taken in a former action or judicial proceeding will, in general, estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party.” (citation omitted)), with Machules v. Dep’t of Admin., 523 So. 2d 1132, 1133-34 (Fla. 1988) (“Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been 23 prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.”) (citation omitted)). By treating the two doctrines as if they had the same elements, the majority opinion conflicts with Blumberg, Machules, and countless other cases. The majority compounds this mistake by including misrepresentation as one of the elements of judicial estoppel. The majority makes this error by concluding that equitable tolling does not apply because the defendant’s statement to the federal judge did not rise to the level of a misrepresentation, and then stating “judicial estoppel is likewise inapplicable to this case.” Even if equitable tolling requires an affirmative misrepresentation from opposing counsel, judicial estoppel does not. “Judicial estoppel bars a party who successfully takes a position in a prior judicial proceeding from proceeding with a conflicting position in a subsequent action to the prejudice of the adverse party.” Keyes Co. v. Bankers Real Estate Partners, Inc., 881 So. 2d 605, 606 (Fla. 3d DCA 2004) (citing Blumberg, 790 So. 2d at 1066). Misrepresentation is not one of the elements of judicial estoppel. Keyes, 881 So. 2d at 606; Blumberg, 790 So. 2d at 1066. In fact, judicial estoppel is designed to apply to legal positions that are sufficiently reasonable and plausible that judges are persuaded to adopt them. In Keyes, for example, judicial estoppel applied to prevent a seller’s broker – who had convinced one court that a buyer’s broker was entitled to half the 24 commission produced by a sale – from asserting in a later proceeding that the buyer’s broker was not entitled to half of the commission. Keyes, 881 So. 2d at 606. There was no claim – nor was it required – that the first legal position of the seller’s broker involved a misrepresentation. Id. Similarly, in Blumberg, judicial estoppel applied to prevent an insured who had convinced a jury to find insurance coverage in a lawsuit against the insurer (although he subsequently dismissed that lawsuit before judgment), from claiming in a later lawsuit against his agent there was no coverage. Blumberg, 790 So. 2d at 1066. Again, there was no claim that the insured’s first position involved a misrepresentation. Id. In Town of Ponce Inlet v. Pacetta, LLC, 226 So. 3d 303, 312 (Fla. 5th DCA 2017), judicial estoppel applied to prevent a landowner who had previously prevailed in asserting his sixteen acre property was a single parcel under applicable laws from later asserting the property consisted of multiple, individual parcels. Yet again, there was no claim that the landowner’s first legal position involved a misrepresentation. Id. As these cases show, rather than turning on the existence of misrepresentation, judicial estoppel focuses solely on whether a party was successful in asserting a legal position; if so, judicial estoppel bars that p