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Avery v. Federal Deposit Insurance Corp.

United States District Court, D. Columbia.

June 29, 2015

FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver for NetBank Business Finance, Defendant

For WILLIAM AVERY, Dr., Plaintiff: Patrick C. Horrell, LEAD ATTORNEY, ROSENAU & ROSENAU, Washington, DC.

For FEDERAL DEPOSIT INSURANCE CORPORATION, As Receiver for NetBank Business Finance, Defendant: Lori J. Searcy, SEARCY LAW OFFICES, LLC, Springfield, VA.

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COLLEEN KOLLAR-KOTELLY, United States District Judge.

Plaintiff William Avery filed suit in the D.C. Superior Court against the Federal Deposit Insurance Corporation as Receiver for NetBank Business Finance seeking to recover damages resulting from NetBank's allegedly fraudulent conduct in qualifying him for a loan and subsequently destroying evidence. Compl. ¶ 1a. Defendant removed the case to this Court. Notice of Removal, ECF No. 1. Presently before the Court is Defendant's [8] Motion to Dismiss Complaint, arguing that the Court lacks subject matter jurisdiction over Plaintiff's claims pursuant to Rule 12(b)(1) and that the Complaint fails to state a claim under Rule 12(b)(6) because the claims are barred by the applicable statute of limitations, the claims are precluded by res judicata and collateral estoppel, and the Complaint fails to allege sufficient facts to state a plausible claim. Upon consideration of the pleadings,[1] the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's [8] Motion to Dismiss. The Court concludes that it lacks subject matter jurisdiction to hear Plaintiff's claims because Plaintiff did not exhaust his administrative remedies as required by the applicable statutory scheme, the Financial Institutions Reform, Recovery and Enforcement Act of 1989. Because the Court does not have jurisdiction over this action, the Court does not reach Defendant's alternative arguments for dismissal. The Court dismisses this case in its entirety.

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The origin of the dispute before the Court is a $40,000 loan issued to Plaintiff in November 2001 by a predecessor of NetBank. Compl., Ex. 3 at 30-32. Plaintiff agreed to repay the loan in sixty installments. Id. Plaintiff made eighteen payments on the loan before stopping payments. Id. at 31. NetBank sued Avery in D.C. Superior Court in May 2004 for non-payment of the loan, and Avery filed a counterclaim alleging fraud and breach of contract. Compl. ¶ 3b. After a bench trial, Judge John M. Campbell of the D.C. Superior Court entered judgment in favor of NetBank and against Avery on his Counterclaim on November 9, 2006. Compl., Ex. 3 at 32-33. After Avery filed numerous post-judgment filings in the Superior Court, the District of Columbia Court of Appeals affirmed the trial court's disposition on February 3, 2009, and subsequently rejected Avery's final appeal on December 17, 2012. Def.'s Mot., Ex. 1 at 1.

Meanwhile, the FDIC entered into receivership of NetBank on September 28, 2007. Def.'s Reply, Ex. 4. Avery received notice of the FDIC's status in an October 18, 2007, letter from the Office of Thrift Supervision, through which Plaintiff had pursued a complaint against NetBank. See id. The letter informed Avery that his complaint package had accordingly been forwarded to the FDIC and the letter contained the name, address, and telephone number of the FDIC officer who received the complaint package. Id. In addition, the FDIC published notice that the Corporation had entered into receivership of NetBank in the Wall Street Journal on October 4, 2007, November 3, 2007, and December 3, 2007. Def.'s Mot., Ex. 6. The notice announced January 2, 2008 as the final date for claims against NetBank to be filed with the FDIC. On December 1, 2014, Plaintiff filed this case in the D.C. Superior Court, alleging that " verdict-changing" evidence would allow him to prove the fraud and breach of contract claims that he had brought as counter-claims in the original Superior Court action. See Compl. ¶ 1c. Defendant removed the case on January 29, 2015. Notice of Removal, ECF No. 1. Defendant moved to dismiss, and that motion is now before the Court.


" Federal courts are courts of limited jurisdiction" and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Id. To survive a motion to dismiss pursuant to Rule 12(b)(1), a plaintiff bears the burden of establishing that the Court has subject matter jurisdiction over its claim. Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S. App.D.C. 18 (D.C. Cir. 2007). In determining whether there is jurisdiction, the Court may " consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198, 357 U.S. App.D.C. 72 (D.C. Cir. 2003) (citations omitted). " At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are to be construed with sufficient liberality to afford all possible inferences favorable to the pleader on allegations of fact." Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106, 368 U.S. App.D.C. 297 (D.C. Cir. 2005). " Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1)," the factual allegations in the

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complaint " will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim." Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, ...

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