John Street Leasehold v. Capital Mgmt. Resources, 98 Civ.1965(JGK).

• Decision Date: 29 March 2001
• Docket Number: No. 98 Civ.1965(JGK).,98 Civ.1965(JGK).
• Citation: 154 F.Supp.2d 527
• Parties: JOHN STREET LEASEHOLD, LLC, Plaintiff, v. CAPITAL MANAGEMENT RESOURCES, L.P., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

154 F.Supp.2d 527

JOHN STREET LEASEHOLD, LLC, Plaintiff, v. CAPITAL MANAGEMENT RESOURCES, L.P., et al., Defendants.

No. 98 Civ.1965(JGK).

United States District Court, S.D. New York.

March 29, 2001.

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OPINION AND ORDER

KOELTL, District Judge.

This action arises out of a syndicated loan in the amount of $20,300,000.00 (the "Loan") secured by a mortgage on a property known as 127 John Street in New York City (the "Mortgage"). The plaintiff, John Street Leasehold, LLC ("John Street"), alleges that the Federal Deposit Insurance Corporation, as receiver for the lead lender American Savings Bank ("FDIC/R"), together with the FDIC in its corporate capacity ("FDIC/C"), and employees and agents of the FDIC tortiously acted in bad faith and deprived the plaintiff of its rights by improperly accelerating the foreclosure of the Mortgage.

This is the second action in this Court in which the plaintiff has sought damages arising out of the allegedly wrongful foreclosure of its interest in 127 John Street. In the first action, the plaintiff alleged that the FDIC/R and the FDIC/C orally agreed to waive a provision in the Mortgage Extension, Consolidation and Modification Agreement (the "Mortgage Agreement") that permitted the participating institutions to require the prepayment of the outstanding balance of the Mortgage at any time after December 20, 1992 with 180 days' written notice (the "Call Provision"), that they then breached that oral agreement, and foreclosed on the Mortgage. This Court granted summary judgment dismissing all of the plaintiff's claims. John Street Leasehold, LLC v. Federal Deposit Ins. Corp., No. 95 Civ. 10174, 1996 WL 737196 (S.D.N.Y. Dec.24, 1996); John Street Leasehold, LLC v. Federal Deposit Ins. Corp., No. 95 Civ. 10174, 1998 WL 411328 (S.D.N.Y. July 22, 1998). The Court of Appeals affirmed the judgment of dismissal. John Street Leasehold, LLC v. Federal Deposit Ins. Corp., 196 F.3d 379 (2d Cir.1999) (per curiam).

All defendants now move for summary judgment pursuant to Fed.R.Civ.P. 56 primarily on the ground that all of the plaintiff's claims are barred by res judicata or claim preclusion. Various defendants also move to dismiss individual claims pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction or Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, the defendants' motions are granted in their entirety.

I.

A.

1.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir.1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986).

On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed. R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983).

2.

With respect to the motions to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), because all of the parties have submitted extensive evidentiary materials, the defendants have moved for summary judgment, and the plaintiff has been afforded the opportunity to submit any evidence in response to the motions for summary judgment, the motions to dismiss will also be treated as motions for summary judgment. See Elgendy v. City of New York, No. 99 Civ. 5196, 2000 WL 1119080, at *1 (S.D.N.Y. Aug. 7, 2000). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the court may consider matters outside the pleadings, such as affidavits, documents, and testimony. See, e.g., Antares Aircraft v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991); Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). Thus, the standard used to evaluate a Rule 12(b)(1) claim is similar to that for summary judgment under Fed.R.Civ.P. 56. See Kamen, 791 F.2d at 1011. The plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir.1996); Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir.1983); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) (when subject matter jurisdiction is challenged under Rule 12, plaintiff must bear burden of persuasion); Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932 (S.D.N.Y. July 22, 1999).

B.

1.

The defendants have filed statements of undisputed facts as required by Local Civil Rule 56.1(a) and the plaintiff has not filed a counter-statement of material facts as to which it is contended there is a genuine issue to be tried as required by Local Civil Rule 56.1(b). The plaintiff's failure to respond to the defendants' 56.1 statements constitutes an admission of the facts contained in those statements. See Local Civil Rule 56.1(c); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998); United States v. All Right, Title and Interest in Real Property and Appurtenances, 77 F.3d 648, 657-58 (2d Cir.1996); see also Cooper v. Gottlieb, No. 95 Civ. 10543, 2000 WL 1277593, at *4 (S.D.N.Y. Sept. 8, 2000). All parties have submitted affidavits with voluminous exhibits and that evidence further supports the statements of material facts that have not been disputed.

There is no genuine dispute as to the following facts. In December 1972, the United Mutual Savings Bank ("UMSB"), the predecessor in interest of American Savings Bank ("ASB"), extended the Loan to the plaintiff's predecessor, Rednow Realty Corp. ("Rednow"). (Non-FDIC Defendants' Local Rule 56.1 Statement of Material Undisputed Facts ("Non-FDIC 56.1 Stmt.") ¶ 10.)¹ Pursuant to the Mortgage between Rednow and UMSB, the Loan was secured by, among other things, the Plaintiff's leasehold interest in 127 John Street, New York, New York.² (Non-FDIC 56.1 Stmt. ¶ 11.)

Nineteen other financial institutions (the "Participants") acquired participation interests in the Loan. (Non-FDIC 56.1 Stmt. ¶ 76.) The rights of the Participants were detailed in a participation agreement dated October 15, 1970 (the "Participation Agreement"). The Participation Agreement provided that the Participants holding an aggregate of more than 50% of the face amount of the outstanding participation interests could direct the lead bank to take action or refrain from taking action with respect to enforcing the Mortgage. (Non-FDIC 56.1 Stmt. ¶ 79.)

The Mortgage required monthly payments of basic interest on the first day of each month and an additional interest payment on April 15 each year. (Non-FDIC 56.1 Stmt. ¶¶ 14-15.) The Mortgage contained the Call Provision described above (Non-FDIC 56.1 Stmt. ¶ 19), and another clause that specified that only written modifications to the Mortgage would be valid. (Non-FDIC 56.1 Stmt. ¶ 21.)

On June 12, 1992, the Superintendent of Banks for the State of New York declared that ASB was an unsafe institution. (Non-FDIC 56.1 Stmt. ¶ 22.) ASB was closed and the FDIC was appointed to serve as receiver for the assets and interests of ASB and its subsidiary, Riverhead Savings Bank ("RSB"). (Non-FDIC 56.1 ¶ 23.) Pursuant to an asset liquidation agreement dated as of May 14, 1993 (the "RALA Agreement"), FDIC/R retained Aldrich, Eastman & Waltch, L.P. ("AEW") to liquidate, collect, and manage the assets of ASB and RSB, including the plaintiff's Loan. (Non-FDIC 56.1 Stmt. ¶ 25.) Frank Campagna ("Campagna") was the FDIC employee assigned as oversight manager with respect to the RALA Agreement. (Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 by the FDIC Defendants ("FDIC 56.1 Stmt.") ¶ 2.) Michael Anderson ("Anderson") was the FDIC employee assigned as the day to day portfolio manager of the ASB and RSB assets. (FDIC 56.1 Stmt. ¶ 3.)

On or about June 1, 1993, FDIC/R executed a power of attorney appointing the defendants J. Grant Monahon ("Monahon"), Richard W. Lewis ("Lewis"), John L. Sullivan ("Sullivan"), and Kevin McCall ("McCall") as attorneys-in-fact to act on behalf of the FDIC with respect to the maintenance and liquidation of the assets...