United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
pro se Plaintiff Richard Caires, it might feel like
Groundhog Day. Caires, who has been trying to avoid repayment
of a $5.5 million loan he obtained from Washington Mutual
Bank in 2005, has filed, reworked, and re-filed several
markedly similar lawsuits in four different courts over the
past ten years. Each time he loses - whether on the merits or
because of a jurisdictional bar - he tries again. This time
around, Plaintiff has filed suit against the Federal Deposit
Insurance Corporation seeking a declaratory judgment on the
current ownership of the loan and damages for a bevy of
alleged injuries. The FDIC, in response, has now filed a
Motion to Dismiss. Unfortunately for Plaintiff, the Court
finds that he is once again barred by jurisdictional
limitations; for the purposes of this suit, his Day is now
many others on the eve of the financial crisis, Caires took a
gamble to purchase, remodel, and hopefully sell an
“exclusive property . . . at the top of the
market.” ECF No. 1 (Complaint), ¶¶ 12-13.
Unfortunately for him, he defaulted on his loan, which has
resulted in over eight years of litigation. The story begins
in 2006 with Caires's purchase of a $1.4 million house in
Greenwich, Connecticut, financed primarily by a $1 million
loan from WaMu. See Compl., Exh. L (2016 Proof of
Claim), ¶ 3.10. In August 2007, he obtained an
additional $5.5 million construction loan from WaMu, which he
used, in part, to pay off his initial acquisition loan.
Id., ¶ 3.20.
Caires was going about the business of remodeling his
property, the financial crisis brought WaMu to its knees. On
September 25, 2008, the Office of Thrift Supervision declared
the Bank insolvent and appointed the FDIC as its Receiver.
See ECF No. 7-2 (Declaration of Donald G. Grieser),
¶ 3. That same day, the FDIC-Receiver entered into a
Purchase and Assumption Agreement with JPMorgan Chase Bank
for the sale of all the assets and certain liabilities of
WaMu. Id., ¶ 5. The FDIC published a Notice to
Creditors and Depositors of WaMu - online and in three
national newspapers - informing them that all administrative
claims against the Bank had to be submitted to the FDIC by
the administrative bar date of December 30, 2008.
See ECF No. 7-4 (FDIC Website Notice); Grieser
Decl., ¶ 7. It is uncontested that Plaintiff did not
comply with this deadline. Id., ¶ 8; Compl.,
¶ 6. Although Caires did end up submitting an
administrative claim to the FDIC, he did not do so until
October 17, 2016. See Proof of Claim, ¶ 1.20.
March 3, 2009, Caires received a notice of default - on WaMu
letterhead - regarding his failure to comply with the terms
of his loan agreement. See Compl., Exh. G (Notice of
Default and Renegotiation Agreement). But, on May 5, 2009, he
apparently negotiated and signed a loan-modification
agreement with JPMC that extended his deadline to comply to
September 1, 2009. Id. Notably, the agreement
specifically recites that JPMC acquired Caires's loan
from WaMu through the 2008 P&A agreement with the FDIC.
Id. Caires was, nonetheless, seemingly unable to
satisfy this modified loan agreement, as he sued JPMC in
Connecticut state court on December 3, 2009. See Caires
v. JP Morgan Chase Bank, 745 F.Supp.2d 40, 42 (D. Conn.
2010) (describing original complaint).
Plaintiff has not successfully vindicated his claims, he has
surely had his day in court. His first suit - against JPMC in
the Superior Court of Connecticut - alleged claims for fraud
in the inducement, equitable estoppel from foreclosure, and
violation of the Connecticut Unfair Trade Practices Act.
Id. JPMC removed the complaint to the U.S. District
Court for the District of Connecticut. Id. at 43-44.
After several rounds of motions and a counterclaim by JPMC
seeking to foreclose on Plaintiff's property, the court
ultimately dismissed all of Caires's suit and remanded
the counterclaim to state court. See ECF No. 7 (Def.
Motion to Dismiss) at 7. Notably, when Caires subsequently
sought to dismiss JPMC's foreclosure counterclaim by
alleging that his loan had never been transferred from WaMu
to JPMC through the P&A Agreement, the court found that
JPMC “had established that [JPMC] or its duly
authorized agents had possession of the [2007 WaMu
note].” Caires v. JP Morgan Chase Bank, N.A.,
2017 WL 2541858, at *2 (Conn. Super. Ct. Apr. 5, 2017). That
suit is ongoing.
simultaneously litigating that state action, Caires sued the
FDIC in the Southern District of New York on April 8, 2016.
See Compl., ¶ 1. In an attempt to clarify
whether JPMC had actually purchased his loan from WaMu,
Plaintiff sought a declaration from the court as to whether
WaMu had his loan on its books or records, or as part of its
assets and liabilities, at the time the FDIC was appointed as
the Bank's Receiver on September 25, 2008. Caires v.
FDIC, 2017 WL 1393735, at *1 (S.D.N.Y. Apr. 18, 2017).
In response to a motion to dismiss filed by the FDIC, that
federal court found that it lacked subject-matter
jurisdiction over Caires's claims because he had failed
to exhaust the administrative-claims process mandated by the
Financial Institutions Reform, Recovery and Enforcement Act
of 1989 (FIRREA), Pub. L. No. 101-73, 103 Stat. 183 (1989).
Id. at *4. The court further held that even if
Caires had exhausted that claims process, it would lack
subject-matter jurisdiction, as § 1821(d)(6(A) of FIRREA
limits post-exhaustion review to the District Court for the
District of Columbia and the federal court where WaMu's
principal place of business was located - namely, the
District Court for the Western District of Washington.
Id. at *5.
brings the Court to the present case. Presumably under the
impression that the dispositive weaknesses of his SDNY suit
were his failure to file an administrative FIRREA claim and
his improper choice of venue, Plaintiff resolved to address
both issues. He first filed a claim with the FDIC on October
17, 2016. See Proof of Claim. When this claim was
summarily rejected on March 23, 2017, for lack of timeliness,
see ECF No. 7-17 (FDIC Rejection Notice), Caires
followed with this pro se Complaint on May 22, 2017.
Although that pleading is somewhat difficult to parse, his
claims appear to belong in three separate buckets: (1) claims
seeking a declaration as to whether WaMu did or did not have
his loan on its books or records, or as part of its assets
and liabilities, on September 25, 2008, see Compl.,
¶ 51; (2) claims seeking damages for misrepresentation,
fraud, and “losses of millions of dollars” to his
property, id., ¶ 12, the FDIC “having
taken part i[n] what seems like a scheme, ”
id., ¶ 33, and acting with “post-closing
willful blindness to the malicious prosecution by [JPMC]
against the Plaintiff, ” id., ¶ 36; and
(3) claims for violations of “the Plaintiff[']s
right under the 14th amendment.”
Id., ¶¶ 43, 48.
FDIC has moved to dismiss, and Caires, now represented by
Motion invokes the legal standards for dismissal under Rules
12(b)(1) and 12(b)(6). When a defendant brings a Rule
12(b)(1) motion to dismiss, the plaintiff must demonstrate
that the Court indeed has subject-matter jurisdiction to hear
his claims. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S.
Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).
“Because subject-matter jurisdiction focuses on the
court's power to hear the plaintiff's claim, a Rule
12(b)(1) motion [also] imposes on the court an affirmative
obligation to ensure that it is acting within the scope of
its jurisdictional authority.” Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9,
13 (D.D.C. 2001). For this reason, “‘the
[p]laintiff's factual allegations in the 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.” Id. at 13-14 (quoting 5A Charles A.
Wright & Arthur R. Miller, Federal Practice and
Procedure § 1350 (2d ed. 1987)) (alteration in
original). In policing its jurisdictional borders, the Court
must scrutinize the complaint, treating its factual
allegations as true and granting the plaintiff the benefit of
all reasonable inferences that can be derived from the
alleged facts. See Jerome Stevens Pharms., Inc. v.
FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court
need not rely “on the complaint standing alone, ”
however, but may also look to undisputed facts in the record
or resolve disputed ones. See Herbert v. Nat'l Acad.
of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992).
12(b)(6), conversely, provides for the dismissal of an action
where a complaint fails to “state a claim upon which
relief can be granted.” When the sufficiency of a
complaint is challenged under Rule 12(b)(6), the factual
allegations presented in it must be presumed true and should
be liberally construed in the plaintiff's favor.
Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993). Although
the notice-pleading rules are “not meant to impose a
great burden on a plaintiff, ” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 347 (2005), and “detailed
factual allegations” are not necessary to withstand a
Rule 12(b)(6) motion, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). The plaintiff must put
forth “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Though a plaintiff
may survive a 12(b)(6) motion even if “recovery is very
remote and unlikely, ” Twombly, 550 U.S. at
555 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)), the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative
level.” Id. at 555. In evaluating the
sufficiency of a plaintiff's complaint under Rule
12(b)(6), the Court may consider “the facts alleged in
the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the
Court] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.