Caires v. Federal Deposit Insurance Corporation

Filing 32

MEMORANDUM OPINION AND ORDER re: 15 MOTION to Dismiss filed by Federal Deposit Insurance Corporation. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the FDIC's motion to dismiss is granted. The Clerk is directed to enter judgment dismissing this action without prejudice because the Court lacks subject matter jurisdiction. The Clerk is directed to close this case. The Clerk is also directed to close all pending motions. (As further set forth in this Order.) (Signed by Judge John G. Koeltl on 4/17/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------RICHARD CAIRES,
Plaintiff,
- v.-

16-cv-02651 (JGK)
MEMORANDUM OPINION
AND ORDER

FEDERAL DEPOSIT INSURANCE
CORPORATION,
Defendant.
-----------------------------------JOHN G. KOELTL, District Judge:
This suit is part of an ongoing effort by the pro se
plaintiff, Richard Caires, to track down the current owner of a
certain construction loan (the “Construction Loan”) that may
have been originated by Washington Mutual, Inc. (“WaMu”), or
some other entity. The plaintiff seeks a declaration whether
WaMu had the Construction Loan on its books and records, or as
part of its assets and liabilities, at the time the defendant,
the Federal Deposit Insurance Corporation (the “FDIC”), was
appointed as the Receiver for WaMu in 2008. The FDIC has moved
to dismiss the Amended Complaint for want of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure, and for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the following reasons, the FDIC’s motion is granted.

I.
When presented with a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction, and a motion to dismiss on other grounds, the
first issue is whether the Court has the subject matter
jurisdiction necessary to consider the merits of the action. See
Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674,
678 (2d Cir. 1990).
In defending against a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1), the
plaintiff bears the burden of proving the Court’s jurisdiction
by a preponderance of the evidence. Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion,
the Court generally must accept the material factual allegations
in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent.
Schs., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not,
however, draw all reasonable inferences in the plaintiff’s
favor. Id.; see also Graubart v. Jazz Images, Inc., No. 02-CV4645 (KMK), 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006).
Indeed, where jurisdictional facts are disputed, the Court has
the power and the obligation to consider matters outside the
pleadings, such as affidavits, documents, and testimony, to
determine whether jurisdiction exists. See Anglo–Iberia
Underwriting Mgmt. Co. v. P.T. Jamsostek, 600 F.3d 171, 175 (2d
2

Cir. 2010); APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003);
Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986). In so doing, the Court is guided by the body of
decisional law that has developed under Rule 56 of the Federal
Rules of Civil Procedure. Kamen, 791 F.2d at 1011.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). The Court’s function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). While the Court should construe the factual allegations
in the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id.
3

When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010) (citation and internal
quotation marks omitted). “Even in a pro se case, however, . . .
threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
(citation omitted). Thus, although the Court is “obligated to
draw the most favorable inferences” that the complaint supports,
it “cannot invent factual allegations that [the plaintiff] has
not pled.” Id.
When presented with a motion to dismiss pursuant to Rule
12(b)(6), the Court may consider documents that are referenced
in the complaint, documents that the plaintiff relied on in
bringing suit and that are either in the plaintiff’s possession
or that the plaintiff knew of when bringing suit, or matters of
which judicial notice may be taken. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Gonzalez v.
J.P. Morgan Chase Bank, N.A., No. 16-CV-02611 (JGK), 2017 WL
122993, at *2-3 (S.D.N.Y. Jan. 12, 2017).
II.
In 2006, the plaintiff alleges that he bought a property
(the “Property”), which was financed by a $1 million mortgage
loan “from what he thought was” WaMu. Am. Compl. ¶ 6. The
4

plaintiff alleges that, at some point, he refinanced the
mortgage loan with a $5 million Construction Loan, which the
plaintiff implies he also thought was from WaMu. Am. Compl. ¶ 7.
Before construction was complete, WaMu was closed and taken over
by the FDIC. Am. Compl. ¶ 7.
On September 25, 2008, the Office of Thrift Supervision (the
“OTS”) declared WaMu insolvent and appointed the FDIC as the
Receiver for WaMu. See Grieser Decl. ¶ 3; Grieser Decl., Ex. A (OTS
Appointment of the FDIC as the Receiver for WaMu); Grieser Decl.,
Ex. B (The FDIC Acceptance of Appointment as the Receiver for
WaMu). On the same day, the FDIC entered into a Purchase and
Assumption Agreement (the “P&A”) with JPMorgan Chase Bank NA
(“Chase”). Grieser Decl. ¶ 5; Grieser Decl., Ex C (The P&A).
Pursuant to the P&A, the FDIC as the Receiver for WaMu, subject to
several specified exceptions, sold and transferred to Chase “all
right, title, and interest of the Receiver in and to all of the
assets . . . of [WaMu] whether or not reflected on the books of
[WaMu] as of [WaMu’s] Closing.” Grieser Decl., Ex. C ¶ 3.1. The P&A
also provided for the transfer to Chase of records relating to the
sold assets, including “Loan and collateral records . . . and other
documents” and “deeds, mortgages . . . and other instruments or
records of title.” Grieser Decl., Ex C ¶ 6.1 (iv-v). The plaintiff
claims that the P&A was “ill-conceived,” Am. Compl. ¶ 8, and casts
aspersions at the entire process that led Chase to acquire WaMu’s
assets. See Am. Compl. ¶¶ 8-14, 16.

5

Construing the pleadings liberally, the plaintiff alleges

that he now doubts that WaMu was the actual lender for the loans
for the Property, and thus claims that “the actual lender
remains an unknown party.” Am. Compl. ¶ 6. The plaintiff’s
doubts arise from other litigations with third-parties,
including Chase (but not the FDIC), with respect to the
Construction Loan. Am. Compl. ¶ 14-15, 18-20; see, e.g., Caires
v. JP Morgan Chase Bank, N.A., No. 3:09-cv-02142 (VLB) (D.
Conn.); Caires v. JPMorgan Chase Bank N.A., No. 16-cv-02694
(GBD) (S.D.N.Y); Caires v. Federal Home Loan Mtg. Corp., et al.,
No. 16-cv-04579 (PKC) (S.D.N.Y.). The plaintiff asserts that if
WaMu originated the Construction Loan, then Chase should be the
current owner of the Construction Loan. However, although the
plaintiff is unsure, the plaintiff does not believe that Chase
ever acquired the Construction Loan. The plaintiff surmises
either (1) that WaMu never transferred the Construction Loan to
the FDIC (which should have otherwise transferred the Loan to
Chase pursuant to the P&A) because WaMu did not own the
Construction Loan as of September 25, 2008; or (2) that the FDIC
acquired the Construction Loan but failed to transfer it to
Chase, meaning that the FDIC would today be the current owner of
the Construction Loan. Am. Compl. ¶¶ 13, 19, 21.
The plaintiff seeks a declaration pursuant to 28 U.S.C.
§ 2201, and also pursuant to the Fourteenth Amendment of the
6

United States Constitution, whether the Construction Loan was on
the records and books, or an asset or liability, of WaMu as of
September 25, 2008. Am. Compl. ¶¶ 27-29, 32, 38, 40.
III.
The plaintiff wants the FDIC to tell him what it knows
about the Construction Loan. The FDIC responds that this Court
does not have jurisdiction over the plaintiff’s claims because
the plaintiff has not exhausted the statutorily-mandated
administrative claims review process under the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (the
“FIRREA”), Pub. L. No. 101–73, 103 Stat. 183 (1989). The FDIC
contends further that, even if the plaintiff had exhausted his
applicable administrative remedies, this Court would not have
jurisdiction because the FIRREA limits post-exhaustion
jurisdiction over the plaintiff’s claims to the United States
District Court for the Western District of Washington, or the
United States District Court for the District of Columbia.
“[The FIRREA] sets forth the regulatory and receivership
powers and duties of the federal banking agencies.” Augienello
v. F.D.I.C., 310 F. Supp. 2d 582, 588 (S.D.N.Y. 2004) (citing 12
U.S.C. § 1821(d)). “Congress enacted FIRREA to establish a
comprehensive administrative claims review process for the
creditors and claimants of failed banks.” Huggins v. F.D.I.C.,
No. 07-CV-5313 (RJD), 2010 WL 3926263, at *1 (E.D.N.Y. Sept. 29,
7

2010) (citing Walker v. F.D.I.C., 2009 WL 5216980 (JAG), at *1
n.1 (D.N.J. Dec. 29, 2009)); see also Miller v. F.D.I.C., 738
F.3d 836, 840 (7th Cir. 2013).
[Sections] 1821(d)(3)-(13) sets forth the procedures
by which the FDIC is authorized to resolve creditors’
claims. Generally, the FDIC must provide notice to
creditors of its appointment as receiver for the
failed institution, informing creditors of the claims
resolution process and the claims bar date. See 12
U.S.C. § 1821(d)(3)(B). If the creditor files a proof
of claim before the claims bar date, the FDIC must
either allow or disallow the claim and notify the
creditor of its determination within 180 days. See id.
§ 1821(d)(5)(A)(i). If the claim is disallowed, the
creditor may request further administrative review of
the FDIC's determination or may “file suit on such
claim (or continue an action commenced before the
appointment of the receiver)” within 60 days of being
notified
of
the
FDIC’s
determination.
Id.
§ 1821(d)(6)(A).
Huggins, 2010 WL 3926263, at *1. Section 1821(d)(13)(D)
provides that:
Except as otherwise provided in this subsection, no
Court shall have jurisdiction over (i) any claim or action for payment from, or any
action seeking determination of rights with respect
to, the assets of any depository institution for which
the Corporation has been appointed receiver, including
assets which the Corporation may acquire from itself
as such receiver; or
(ii) any claim relating to any act or omission of such
institution or the Corporation as receiver.
Courts have consistently held that Ҥ 1821(d)(13)(D)
deprives courts of subject matter jurisdiction over claims
against an institution in FDIC receivership until the claimant

8

complies with a mandatory statutory claims procedure. . . .
Exhaustion of the statutory claims procedure is a jurisdictional
requirement.” JPMorgan Chase Bank, Nat. Ass’n v. Nell, No. 10CV-1656 (RRM), 2012 WL 1030904, at *5 (E.D.N.Y. Mar. 27, 2012)
(citing Carlyle Towers Condo. Ass’n, Inc. v. F.D.I.C., 170 F.3d
301, 307 (2d Cir. 1999)); see also, e.g., Nials v. Bank of Am.,
No. 13 CIV. 5720 (AJN), 2014 WL 1174504, at *6 (S.D.N.Y. Mar.
21, 2014); Augienello, 310 F. Supp. 2d at 588 & n.1 (collecting
cases); Aber–Shukofsky v. JPMorgan Chase & Co., 755 F. Supp. 2d
441, 445 (E.D.N.Y. 2010). The exceptions to § 1821(d)(13)(D)
“make crystal clear that judicial review is authorized only
after a claimant files a proof of claim and the FDIC either
denies the claim or fails to adjudicate the claim in a timely
manner.” Huggins, 2010 WL 3926263, at *2 (citation omitted).
The FDIC established December 30, 2008 as the deadline (the
“Bar Date”) for the filing of any proofs of claim against WaMu.
Grieser Decl. ¶ 6. The FDIC publicized the Bar Date, along with
relevant information about the claims process, in several
newspapers. See Grieser Decl. ¶ 7; Grieser, Ex. D (Notices of
the Bar Date). It is undisputed that the plaintiff did not
submit a proof of claim by the Bar Date. See Grieser Decl. ¶ 8;
Pl.’s Mem. Op. ¶ 12.
After the plaintiff initiated this action, the FDIC sent
the plaintiff a notice advising him that the Bar Date had
9

passed, but that the FDIC might consider the claims regarding
the Construction Loan if the plaintiff satisfied certain
conditions, including submitting a proof of claim by October 17,
2016, along with evidence demonstrating that the plaintiff did
not know about the appointment of the FDIC as the Receiver for
WaMu in time to file his claim before the Bar Date. Grieser
Decl. ¶ 8; Grieser Decl., Ex. E (Notice to Discovered Claimant
to Present Proof of Claim). In response, the plaintiff submitted
a proof of claim on October 17, 2016. Grieser Reply Decl. ¶ 2;
Pl.’s Mem. Op. ¶ 12. That claim is currently pending before the
FDIC. Grieser Reply Decl. ¶ 2. The determination period for the
claim expires on or around April 17, 2017. Grieser Reply Decl. ¶
2; see also 12 U.S.C. 1821(d)(5)(A)(i).
It is plain that the plaintiff has not exhausted the
mandatory claims process under the FIRREA. The plaintiff’s
claims for declaratory relief clearly seek the determination of
rights with respect to the Construction Loan, an asset of WaMu
for which the FDIC was appointed as the Receiver. 12 U.S.C.
§ 1821(d)(13)(D)(i). Moreover, the allegations fault the FDIC
with respect to its purported acts or omissions in the event
that the FDIC, as the Receiver for WaMu, failed to transfer the
Construction Loan to Chase pursuant to the P&A. 12 U.S.C.
§ 1821(d)(13)(D)(ii).

10

This Court accordingly does not have jurisdiction over the
plaintiff’s claims. See, e.g., Nials, 2014 WL 1174504, at *1-2,
6 (finding that the court lacked jurisdiction over, among other
claims, declaratory relief claims against the FDIC as the
Receiver for WaMu); Holt v. FDIC, No. 16-CV-3938 (CM) (S.D.N.Y.
Nov. 29, 2016), Dkt. 4 (Order of Dismissal) at 3-5 (same); Bravo
v. U.S. Bank Nat. Ass’n, No. 12-CV-1183 (ENV), 2013 WL 307824,
at *3 (E.D.N.Y. Jan. 25, 2013); Nell, 2012 WL 1030904, at *7
(“As [the plaintiff] has thus failed to show exhaustion of his
statutory remedies with respect to the FDIC, this Court lacks
jurisdiction over the Borrower Claims, which must be
dismissed.”); Caires v. JP Morgan Chase Bank, 745 F. Supp. 2d
40, 50 (D. Conn. 2010) (noting, in a parallel litigation between
Chase and the plaintiff involving the Construction Loan, that
claims “arising from [WaMu’s] lending or loan purchase
activities prior to September 25, 2008, and . . . those
liabilities remained with the FDIC as receiver and [are] subject
to the FDIC’s jurisdictional claim exhaustion requirements”);
accord Willner v. Dimon, 849 F.3d 93, 107 (4th Cir. 2017)
(holding that “a request for a declaratory judgment is a ‘claim’
within the meaning of FIRREA because the FDIC can provide
declaratory relief” and collecting cases).1

1

The same analysis applies to the extent that the plaintiff is
seeking money damages. The plaintiff must exhaust his
11

In addition, even if the plaintiff had exhausted his
administrative remedies, this Court would not have jurisdiction
over the action. Section 1821(d)(6)(A) limits post-exhaustion
jurisdiction over the plaintiff’s claims to the United States
District Court for the District of Columbia or the “district or
territorial court of the United States for the district within
which [WaMu’s] principal place of business is located” --- thus,
the United States District Court for the Western District of
Washington, see Grieser Decl. ¶ 4. See, e.g., Nials, 2014 WL
1174504, at *7; Jaffe v. Capital One Bank, No. 09 CIV. 4106
(PGG), 2010 WL 691639, at *3 (S.D.N.Y. Mar. 1, 2010); Huggins,
2010 WL 3926263, at *4 (“All is not necessarily lost for [the
plaintiff]. To the extent that he decides to file the required
proof of claim and is dissatisfied with the FDIC’s adjudication,
he can, pursuant to 12 U.S.C. § 1821(d)(6), return to federal
court and continue this action.”).
The plaintiff’s arguments in favor of jurisdiction are
without merit.
The plaintiff argues that any allegations with respect to
the possible failure by the FDIC to transfer the Construction
Loan to Chase arose after the FDIC was appointed as the Receiver
for WaMu. But that distinction is irrelevant to the

administrative remedies before a court can have jurisdiction
over his claims.
12

jurisdictional inquiry because those allegations are necessarily
based on alleged “acts or omissions” of the FDIC as the Receiver
for WaMu. 12 U.S.C. § 1821(d)(13)(D)(ii). “The exhaustion
requirement ‘applies to any claim or action respecting the
assets of a failed institution for which the FDIC is Receiver,’
and extends to post-Receivership claims arising out of acts by
the Receiver.” Jones v. IndyMac Fed. Bank, No. 08-CV-5215 (JS),
2009 WL 2762815, at *2 (E.D.N.Y. Aug. 24, 2009) (quoting
McCarthy v. F.D.I.C., 348 F.3d 1075, 1080 (9th Cir. 2003)); see
also, e.g., Prieto v. Standard Fed. Sav. Bank, 903 F. Supp. 670,
673 (S.D.N.Y. 1995); F.D.I.C. v. Boyarsky, No. 94 CIV. 7482
(RWS), 1995 WL 373483, at *7 (S.D.N.Y. June 22, 1995); Bravo,
2013 WL 307824, at *1-2; accord Vill. of Oakwood v. State Bank &
Trust Co., 539 F.3d 373, 387 (6th Cir. 2008) (noting that “[t]he
overwhelming majority of courts to address the issue have
concluded that the administrative process applies to postreceivership claims” and collecting cases).2

2

But see Homeland Stores, Inc. v. Resolution Trust Corp., 17
F.3d 1269 (10th Cir. 1994), in which the Court of Appeals for
the Tenth Circuit held that “the term ‘claim’ as used in
§ 1821(d)(13)(D) should be interpreted to exclude claims . . .
arising from management actions [of certain leases by] the RTC
[the predecessor to the FDIC] after taking over a depository
institution.” Id. at 1274. In that case, the court noted the
tension in mandating compliance with a review process for claims
that might arise after a bar date at some point in the
“indeterminate future due to management actions of the RTC,” id.
at 1274, and moreover that the RTC was behaving more like a
conservator than a receiver in managing the failed depository
13

The plaintiff relies extensively on Deutsche Bank Nat’l
Trust Co. v. Fed. Deposit Ins. Corp., 109 F. Supp. 3d 179
(D.D.C. 2015), but that case has nothing to do with exhaustion
or any other jurisdictional issues relevant to this case. In
that case, the plaintiffs filed a proof of claim by the Bar
Date, and also sued in a jurisdictionally proper forum: the
United States District Court for the District of Columbia. See
id.
The plaintiff is incorrect that the FDIC manifested any
intent in this action to consent to this Court’s jurisdiction.
In any event, the plaintiff is incorrect that the FDIC could
consent to this Court’s jurisdiction. See United States v.
Cotton, 535 U.S. 625, 630 (2002) (noting that subject matter
jurisdiction, “because it involves a court’s power to hear a
case, can never be forfeited or waived”).

institution’s leases in order to preserve the assets in
question. Id. at 1275.
The concerns animating Homeland Stores are inapplicable
here because there can be no doubt that the Amended Complaint is
challenging the FDIC’s conduct as a Receiver “liquidat[ing] or
winding up the affairs of” WaMu, 12 U.S.C. § 1821(c)(1)(A)(ii)
(defining “Receiver”); see also Grieser Decl., Ex. C at 1
(describing the FDIC as the Receiver of WaMu); Am. Compl. ¶ 1
(same), and that the plaintiff could have filed his claims by
the Bar Date. See Prieto, 903 F. Supp. at 672-73 (distinguishing
Homeland Stores, which was concerned with situations where a
claimant would “have no forum in which to present her claims,”
because the RTC provides claimants with a forum even for
untimely claims).
14

The plaintiff’s filing of an administrative claim with the
FDIC after he filed this suit “is immaterial [because] subject
matter jurisdiction is determined as of the filing of the
complaint.” Bravo, 2013 WL 307824, at *3 n.1. Moreover, the
filing of the proof of claim does not solve the § 1821(d)(6)(A)
jurisdictional issue because the plaintiff’s litigation can only
be brought in the United States District Court for the Western
District of Washington, or the United States District Court for
the District of Columbia.
The plaintiff has also brought a claim pursuant to the
Fourteenth Amendment of the United States Constitution, but it
is unclear what relief the plaintiff is seeking through that
claim beyond declaratory relief. The plaintiff alleges that,
“[T]he FDIC, violated the 14th [A]mendment . . . Constitution by
allowing uncertainties about 12 U.S.C. § 1821(d), the Statute,
while ignoring 12 U.S.C. § 1821(e) and the erroneous and
fraudulent implementation invocation of FIRREA . . . by third
parties, namely [Chase] herein. The FDIC essentially controls
the statute.” Am. Compl. ¶ 32. However, the plaintiff claims
only that he is entitled to declaratory relief, see Am. Compl. ¶
40, which must be addressed through the administrative claims
process.
To the extent that the plaintiff is seeking relief that
cannot be resolved through that claims process, see Bank of N.Y.
15

v. First Millennium, Inc., 607 F.3d 905, 921 (2d Cir. 2010)
(“Courts interpreting the broad language of § 1821(d)(13)(D)(ii)
have universally concluded that this provision bars only claims
that could be brought under the administrative procedures of
§ 1821(d), not any claim at all involving the FDIC.”), the claim
must be dismissed for failure to state a claim. Even construing
the Amended Complaint liberally, the allegations are
insufficiently particularized to meet the fair notice threshold
under Federal Rule of Civil Procedure Rule 8(a). See Gonzalez,
2017 WL 122993, at *9 n.12.
Moreover, the FDIC is a federal agency. The Fourteenth
Amendment would thus appear to be inapplicable to this case. See
D.C. v. Carter, 409 U.S. 418, 423 (1973). Furthermore, there is
no explanation how the “statutes were misapplied” or “how those
allegedly vague interpretations caused any violation of [the
plaintiff’s constitutional” rights. Holt v. FDIC, No. 16-CV-3938
(CM) (S.D.N.Y. Nov. 29, 2016), Dkt. 4 (Order of Dismissal) at 3
(dismissing identical claim for failure to state a claim).
It is unnecessary to reach the FDIC’s remaining arguments
that the Amended Complaint does not state a claim because this
Court lacks subject matter jurisdiction over the action.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
16

are either moot or without merit. For the foregoing reasons, the
FDIC’s motion to dismiss is granted. The Clerk is directed to
enter judgment dismissing this action without prejudice because
the Court lacks subject matter jurisdiction. The Clerk is
directed to close this case. The Clerk is also directed to close
all pending motions.
SO ORDERED.
Dated:

New York, New York
April 17, 2017

_____________/s/_______________
John G. Koeltl
United States District Judge

17