The plaintiff also alleges that its due process rights were violated on
the ground that Campagna was allegedly not an impartial Ombudsman because
he served as a Committee member that approved the foreclosure before he
acted as an Ombudsman. The plaintiff has failed to establish that any of
these allegations constitute a due process violation. He has failed to
show that he had any constitutionally protected interest in an
Ombudsman. Moreover, it is undisputed that Campagna had already voted on
the Case and authorized the foreclosure before acting as an Ombudsman.
The fact that the plaintiff was given the opportunity to present its
position yet again to one of the people who had voted for foreclosure does
not establish that the plaintiff was denied any due process rights but
rather shows that the plaintiff had yet another opportunity to present
Finally, Campagna and Anderson argue that the plaintiff has not
established a violation of its right to equal protection. The plaintiff
simply asserts that it has an equal protection claim without explaining
the basis for such a claim. Because the plaintiff has not shown that the
actions of Campagna or Anderson infringed upon one of its fundamental
rights or were based on a suspect classification, any difference in the
way that the plaintiff was treated requires only that it be rationally
related to a legitimate government interest. See, e.g., Furlong v.
Shalala, 156 F.3d 384, 392 (2d Cir. 1998). The plaintiff has not even
shown that it was treated in a way different from a similarly situated
borrower. It has not shown that the actions taken by Campagna and
Anderson were irrational. There plainly was a rational basis for the FDIC
to foreclose on a mortgage when the borrower was in default and
foreclosure advances the interest in protecting the assets of the FDIC.
The plaintiff therefore has no equal protection claim.*fn8
The FDIC moves for summary judgment dismissing the plaintiff's sixth
cause of action, which essentially seeks to impute liability to the FDIC
Defendants for the allegedly tortious conduct of the Non-FDIC Defendants
alleged in the first four causes of action. As explained above, the
plaintiff has no cause of action for tort against the Non-FDIC
Defendants. Thus, there is no underlying tortious conduct by the Non-FDIC
Defendants for which the FDIC Defendants can be held liable.*fn9
Moreover, the plaintiff's sixth cause of action is procedurally flawed
because it names the wrong party. Common law tort claims against a
federal agency must be filed against the United States pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA"). See.
e.g., Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991); Dolan
v. United States
Army, No. 98 Civ. 5110, 1999 WL 199012, at *2 (S.D.N Y
April 9, 1999).*fn10 Similarly, to the extent the plaintiff seeks to hold
Campagna and Anderson liable for the common law torts of the Non-FDIC
Defendants, this cause of action is also barred because any claim against
federal employees for common law tort can only be brought against the
United States under the FTCA. See. e.g., Rivera v. United States,
928 F.2d 592, 608 (2d Cir. 1991). The United State Attorney for the
Southern District of New York has certified that both Campagna and
Anderson were acting within the scope of their employment as employees of
the United States at the time of the incidents alleged in the Amended and
Restated Complaint. (Certification by United States Attorney for the
Southern District of New York Mary Jo White dated Sept. 14, 2000 attached
to FDIC Defendants' Notice of Motion dated Sept. 15, 2000.) In light of
that certification, any common law tort claim against Campagna and
Anderson must be brought against the United States pursuant to the FTCA.
See. e.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 509-10
(2d Cir. 1994).
The Court has no subject matter jurisdiction to hear the plaintiff's
common law tort claims. Under the FTCA, a plaintiff must first present an
administrative claim to the proper federal agency for this Court to have
subject matter jurisdiction over the claim. 28 U.S.C. § 2675;
Robinson, 21 F.3d at 509-10. Because the plaintiff has failed to meet
this requirement for any of the FDIC Defendants, the Court has no subject
matter jurisdiction over any common law tort claims against the FDIC,
Campagna, or Anderson. Thus, the plaintiff's sixth cause of action should
Finally, the plaintiff requests further discovery. The plaintiff has
not met the procedural requirements of Fed. R. Civ. P. 56(f), which
provides for the continuance of a summary judgment motion under certain
circumstances. To withstand a motion for summary judgment on the grounds
that further discovery is necessary, the party opposing summary judgment
"must submit an affidavit showing (1) what facts are sought [to resist
the motion] and how they are to be obtained, (2) how those facts are
reasonably expected to create a genuine issue of material fact, (3) what
effort affiant has made to obtain them, and (4) why the affiant was
unsuccessful in those efforts." Gurary v. Winehouse, 190 F.3d 37, 43 (2d
Cir. 1999) (internal quotation marks omitted). Failure to file such an
affidavit constitutes waiver of any claim that-discovery was inadequate,
even if the party opposing summary judgment asserts in its papers that
further discovery is required. See Id.; Paddington Partners v. Bouchard,
34 F.3d 1132, 1137 (2d Cir. 1994); Burlington Coat Factory Warehouse
Corp. v. Esprit de Corp., 769 F.2d 919, 926 (2d Cir. 1985); Fowler v.
Transit Supervisors Org., No. 96 Civ. 6796, 2000 WL 303283, at *3
(S.D.N.Y. March 23, 2000).
Here, the plaintiff has not filed an affidavit complying with the
requirements of Rule 56(f). The conclusory declaration by the
plaintiff's lawyer fails to set forth the specific facts sought to resist
the motions, how they are to be obtained, and how they could reasonably
be expected to create a genuine issue of material fact. The plaintiff
retreats into unsupported and conclusory speculations about missing
documents which are insufficient to resist a motion for summary judgment
and which are refuted by the extensive discovery record in this case and
in John Street I. Moreover, the magistrate judge has ruled that the
defendants have not withheld any non-privileged documents in this case.
John Street Leasehold, LLC, 1999 WL 1029728, at *4 Therefore, this
request is denied.
For the reasons explained above, the defendants' motions are granted.
The Clerk of the Court is directed to enter judgment dismissing the
Amended and Restated Complaint and closing the case.