the entire corpus of both federal and state law for any legal theory supported by each set of facts presented. Such an enterprise would impose indefensible costs on the FDIC and frustrate FIRREA's intended purpose of expeditiously and fairly resolving the majority of claims against failed institutions without protracted litigation. H.R. Rep No. 101-54(I), 101st Cong., 1st Sess., at 418-19, reprinted in 1989 U.S. Code Cong. & Admin. News 86, 214-15.
FIRREA by and large was designed for persons suing on financial disputes, the majority of whom are represented by counsel. It is possible that the result would be different if this Court were dealing with a pro se plaintiff who lacked legal sophistication. The plaintiff in this case, however, is a business entity represented by competent legal counsel. Moreover, it had ample opportunity after the FDIC's appointment as Receiver to present fully its factual basis and legal theories for recovery against Cosmopolitan and the FDIC. According to the amended complaint, the alleged acts of conversion occurred between June 1988 and May 1991. Brown Leasing has not presented a legally permissible excuse for excluding these amended claims from the administrative claim filed with the FDIC on June 20, 1991. Absent such an excuse, this Court will not permit the plaintiff to hide behind § 1821(d)(5)(F)(ii) in the solace that FIRREA cannot prejudice its rights to continue an action filed before appointment of a receiver.
This Court finds that dismissal of Counts IV and V in Brown Leasing's amended complaint for failure to exhaust administrative procedures is warranted under the circumstances and the recognized purpose of the elaborate procedures outlined in FIRREA. Having dismissed these counts, this Court refuses to exercise supplemental jurisdiction over the state law claims asserted against non-FDIC defendants.
II. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
Brown Leasing now moves for leave to file a second amended complaint. Under Federal Rule of Civil Procedure 15(a), a plaintiff must seek leave of court to file an amended complaint after a responsive pleading is served. Fed. R. Civ. P. 15(a). Whether to grant or deny leave to amend a pleading falls within the court's discretion. Perrian v. O'Grady, 958 F.2d 192, 194 (7th Cir. 1992). Leave, however, "shall be freely given when justice so requires." Id. Where the proposed amendments fail to cure a prior pleading deficiency, this Court may deny leave to file the amended complaint as futile. Moore v. State, 999 F.2d 1125, 1993 U.S. App. LEXIS 18516, No. 91-2776, at 4 (7th Cir. July 20, 1993) (affirming denial of motion to amend because proposed amendment was futile where damage claims could not withstand motion to dismiss); J.D. Marshall Int'l., Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th Cir. 1991).
The deficiency here is the lack of a federal question on which to base federal jurisdiction. Brown Leasing attempts to cure this defect in the proposed second amended complaint by alleging federal claims for violation of the National Bank Act, 12 U.S.C. § 161(a) and the Federal Reserve Act, 18 U.S.C. § 1005. Both of these claims emanate from Cosmopolitan's alleged "willful misstatement and omission of the Cosentino Credit Arrangement in its books and records and report to federal regulators."
As noted in this Court's prior opinion, to state adequately a claim under § 161(a), Brown Leasing must link the misstatements to reports filed with the Comptroller and must allege sufficiently its reliance on these misleading records. This applies with equal force to the § 1005 claim. See Gaff v. Federal Deposit Ins. Corp., 814 F.2d 311, 316 n.2 (6th Cir. 1987) (simultaneously analyzing standing under § 93 and § 503 because provisions "contain essentially identical language). On the element of reliance, Brown Leasing's second amended complaint alleges the FDIC as Receiver relied on these documents in refusing to recognize Cosmopolitan's guarantee of the Cosentino loan. It also alleges summarily that it relied on Cosmopolitan's directors to make truthful records after entering into the Cosentino Credit Arrangement in compliance with the statutory requirements. Brown Leasing, however, has missed the boat. The proposed second amended complaint is still wanting of any allegation that Brown Leasing relied directly on the misstatements or omissions contained in the reports themselves. This is so probably because at the time it entered into the Cosentino arrangement, it could not have relied on statements that had not yet been authorized. Furthermore, had it seen the reports after the fact, it would have been apprised of the transaction's absence.
Brown Leasing poses, without citing supporting caselaw, that reliance is not a necessary element to its § 93 and § 503 claims for violation of §§ 161(a) and 1005 because its injury was a direct result of the misstatements in the bank's books and reports. What Brown Leasing says is this:
As alleged in the [proposed] second amended complaint, the Bank's directors and officers falsely and improperly recorded and failed to record the Bank's guarantee of the Cosentino loan and various misapplications of Brown Leasing's funds and accounts in Cosmopolitan's books and in its reports to federal regulators. Among other things, these banking violations directly and proximately caused the invalidity (against the FDIC) of Brown Leasing's $ 1,950,000 Standby Letter of Guarantee, and also directly and proximately caused losses in excess of $ 800,000 to Brown Leasing due to the Bank's misapplication of funds owned by or owed to Brown Leasing.