United States District Court, C.D. Illinois, Rock Island Division
DARROW UNITED STATES DISTRICT JUDGE.
the Court is Defendant Federal Deposit Insurance
Corporation's (“the FDIC”) motion to dismiss
Plaintiffs' claims, ECF No. 8. For the following reasons,
the motion is GRANTED.
Tugana and Weaver owned shares of River Valley Bancorp
(“River Valley”), a holding company that owned
both Valley Bank Illinois (“VBI”) and Valley Bank
Fort Lauderdale, Florida. During the period relevant to
Plaintiffs' claims, Larry Henson was President and CEO of
River Valley, and also of VBI. Henson had been convicted of a
crime in 1995. Subsequently, Henson was forced to resign
from all his positions, and as a result in part of decisions
he took while CEO, VBI failed and was placed in receivership.
The value of Tugana's and Weaver's shares dropped as
a result. An FDIC Material Loss Review later determined that
“VBI failed primarily because of lax oversight by its
Board and a dominant CEO that [sic] implemented a risky
business strategy.” Loss Review i, Compl. Ex. 7, ECF
No. 1. The FDIC also determined that it “should have
taken stronger supervisory action . . . when it was apparent
that prior supervisory efforts to address the CEO's risky
business decisions and the bank's deteriorating financial
condition were unsuccessful.” Id. at I-10.
November 19, 2015, Tugana submitted a damages claim to the
FDIC pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680,
alleging that his property interest in River Valley had been
harmed by the FDIC's breach of fiduciary duty and
negligence in allowing Henson, a “convicted criminal,
” to serve as the CEO of VBI, and in failing to remove
him from that position. Tugana Claim 1, Compl. Ex. 1, ECF No.
1. On November 21, 2015, Weaver submitted a similar claim.
Weaver Claim 1, Compl. Ex. 3, ECF No. 1. On May 19, 2016, the
FDIC denied Tugana's and Weaver's claims. Tugana
Denial, Compl. Ex. 5, ECF No 1; Weaver Denial, Compl. Ex. 6,
ECF No. 1.
and Tugana filed suit on October 21, 2016, alleging in more
detail the same two FTCA claims. Compl. 4-8. They named, as
the sole defendant, “THE FEDERAL DEPOSIT INSURANCE
CORPORATION, an Agent of the United States of America.”
Id. at 1. The Clerk affixed a seal with his
signature to the summons, ECF No. 2, and on November 3, 2016,
Plaintiffs returned a process server's affidavit
indicating that on October 31, 2016, she had delivered the
summons, complaint, and exhibits to one Barbara Williams, a
“legal assistant and authorized agent” of the
FDIC, at 1776 F St. NW, Washington, DC 20429. Drum Aff., ECF
No. 3. On February 3, 2017, Plaintiffs filed a notice
indicating that they had mailed copies of the summons and
complaint to the office of the United States Attorney General
and to the United States Attorney's Office for the
Central District of Illinois. Feb. 7, 2017 Not. Service, ECF
No. 4. Plaintiffs attached certified mail receipts indicating
that the Attorney General received the documents on January
31, 2017, and the United States Attorney on January 30, 2017.
Receipts, Id. Ex. 1, ECF No. 4. On February
7, 2017, the Court entered a Text Order explaining that
Plaintiffs had not fully complied with the requirements for
service of process upon an agency of the United States, and
that the person they claimed to have served did not appear to
be authorized by the FDIC to receive process. Subsequently,
service was effected, see Feb. 14, 2017 Not.
Service, ECF No. 6; and counsel for the FDIC entered his
appearance, FDIC Not. Appearance, ECF No. 7.
motion to dismiss was filed on March 17, 2017, and is ripe
Legal Standard on a Motion to Dismiss for Lack of Subject
may move for a district court to dismiss claims over which
the court lacks subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). In ruling on such a motion, “the district
court must accept as true all well-pleaded factual
allegations and draw all reasonable inferences in favor of
the plaintiff.” Evers v. Astrue, 536 F.3d 651,
656 (7th Cir. 2008). Whereas on a motion to dismiss for
failure to state a claim, a court may not look beyond the
allegations of a complaint, in ruling on a motion to dismiss
for lack of subject matter jurisdiction, courts may look
beyond those allegations to other evidence that has been
submitted, or to judicially noticeable facts, in order to
assure themselves that jurisdiction exists. Id. at
656-57. When a defendant challenges the existence of subject
matter jurisdiction as a factual matter, the burden of
proving jurisdiction rests with the plaintiff. Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440,
443 (7th Cir. 2009).
FDIC moves to dismiss Plaintiffs' claims on several
grounds, the first of which is that, pursuant to Rule
12(b)(1), the Court lacks subject matter jurisdiction because
the FDIC is not subject to suit in its own name, and
Plaintiffs failed to name the correct party-the United States
of America-in their Complaint. The FDIC further argues that
Plaintiffs should not be permitted to amend their Complaint
to name the United States of America. Mem. Supp. Mot. Dismiss
1, ECF No. 9. Plaintiffs respond that they did name the
United States of America in their Complaint, Resp. Mot.
Dismiss 1, ECF No. 11, and that if the Court decides they did
not, they should be permitted to amend their Complaint,
id. at 1-2. Because the FDIC succeeds on its first
argument, which is dispositive of all claims, the Court will
not discuss the other arguments the FDIC offers in support of
FDIC is correct that the United States is the only proper
party to an FTCA claim. Absent a waiver, the sovereign
immunity of the federal government and its agencies is
absolute, and shields them from suit. Loeffler v.
Frank, 486 U.S. 549, 554 (1988). The FTCA extends a
limited waiver of this immunity for certain tort claims, but
only as to the United States itself. See Jackson v.
Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (“The
only proper defendant in an FTCA action is the United
States.”). This is so notwithstanding the statutory
authorization of certain agencies, including the FDIC, 12
U.S.C. § 1819, to sue and be sued in their own name. 28
U.S.C. § 2679(a) (“The authority of any federal
agency to sue and be sued in its own name shall not be
construed to authorize suits against such federal agency on
claims which are cognizable under section 1346(b) of this
title, and the remedies provided by this title in such cases
shall be exclusive.”); see 28 U.S.C. §
1346(b) (securing to federal district courts exclusive
jurisdiction over injury and loss claims against the United
States). Thus, a federal district court lacks subject matter
jurisdiction over an FTCA claim not made against the United
States, but against some other party. See Galvin v.
Occupational Safety & Health Admin., 860 F.2d 181,
183 (5th Cir. 1988). (“[A]n FTCA claim against a
federal agency or employee as opposed to the United States
itself must be dismissed for want of jurisdiction.”).
assert that “in the caption of this complaint the
United States of America was specifically named as a
defendant[.]” Resp. Mot. Dismiss 1. This claim is
simply false; the Complaint lists only the FDIC as a
defendant. Describing the FDIC as an agent of the United
States does not make the United States a defendant. See
Hughes v. United States, 701 F.2d 56, 58 (7th Cir. 1982)
(“Under the [FTCA], a governmental agency cannot be
sued in its own name; the action must be brought against the
United States. Government ...