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MOSSERI v. FDIC

May 15, 1996

CLEMENT MOSSERI, Plaintiff, against FEDERAL DEPOSIT INSURANCE CORPORATION, GENERAL SERVICES ADMINISTRATION, AND THE UNITED STATES OF AMERICA, Defendants.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., United States District Judge.

 Plaintiff Clement Mosseri, appearing pro se, brought this action against the Federal Deposit Insurance Corporation (the "FDIC"), the General Services Administration (the "GSA"), and the United States of America seeking more than $ 110,000,000 in damages due to the FDIC's and the GSA's alleged discriminatory actions in connection with the auction and sale of certain real property. Specifically, Mosseri alleged that he submitted the highest bid for government-owned property, which he intended to lease to the GSA for use as a new Social Security office. According to Mosseri, the GSA and the FDIC overlooked his bid in favor of a lower bid.

 The GSA, the FDIC, and the Government now move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. The FDIC also moves to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim. For the reasons that follow, the complaint is dismissed for lack of subject matter jurisdiction.

 I. Background

 Mosseri alleges that the FDIC took possession of certain real property located at 6011 Fort Hamilton Parkway, Brooklyn, New York (the "Property") from Community National Bank Trust Company of New York, a failed financial institution. (Compl. at P 5.) Mosseri claims that he spoke to FDIC officials regarding the Property and, soon thereafter, submitted a written bid to the FDIC to purchase the Property. (Compl. at PP 7, 10, and 11.) According to Mosseri, the FDIC had a duty to accept his bid because his bid was the highest. (Compl. at P 13.) Mosseri also claims that the FDIC divulged to other bidders his confidential development plans for the Property; Mosseri intended to lease the property to the GSA for use as a new social security office. (Compl. at P 18.)

 On February 2, 1995, Mosseri commenced this action against the FDIC and the GSA by filing a complaint in the Southern District of New York. Mosseri amended his complaint on April 12, 1995, adding the Government as a party defendant. This decision should be read with the knowledge that at the pre-trial conference significant time was devoted without success to providing this pro se plaintiff with the concerns that follow and providing him with an opportunity to amend his complaint.

 II. Discussion

 Defendants move to dismiss plaintiff's complaint on two grounds. The FDIC, the GSA and the Government seek to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). In addition, the FDIC moves to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6). For the reasons that follow, defendants' Rule 12(b)(1) motions are granted and plaintiff's complaint is dismissed. Since plaintiff's complaint against the FDIC is dismissed on the basis of its Rule 12(b)(1) motion, there is not reason to reach the FDIC's Rule 12(b)(6) motion.

 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

 A motion to dismiss under Rule 12(b)(1) challenges a court's statutory or constitutional power to adjudicate a case and "typically. . . alleges that the federal court lacks either federal question or diversity jurisdiction over the action." 2A James W. Moore et al., Moore's Federal Practice, P 12.07, at 12-49 (2d ed. 1994). In a motion to dismiss for lack of subject matter jurisdiction, the court must construe the complaint broadly and liberally in conformity with the principle set out in Rule 8(f) of the Federal Rules of Civil Procedure, "but argumentative inferences favorable to the pleader will not be drawn." 5A Charles A. Wright et al., Federal Practice and Procedure ยง 1350, at 218-219 (1990 & Supp. 1991). Once challenged, the burden of establishing a federal court's subject matter jurisdiction rests on the party asserting jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 446, 86 L. Ed. 951, 62 S. Ct. 673 (1942); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979).

 1. FTCA Causes of Action Against the United States and the GSA.

 Mosseri's allegations of tortious conduct on the part of the GSA must be dismissed for lack of subject matter jurisdiction. A plaintiff may file tort claims against the United States, provided he satisfies certain FTCA filing requirements:

 
An action shall not be instituted upon a claim against the United States for money damages for . . . loss of property . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by ...

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