The opinion of the court was delivered by: HARVEY BARTLE, III
Plaintiff, Aljaf Associates Limited Partnership ("Aljaf"), alleges that its former tenant, Meritor Savings Bank ("Meritor"), failed to maintain and repair the building it rented from Aljaf as required by the sublease agreement between them. The Federal Deposit Insurance Corporation ("FDIC") was appointed Meritor's receiver pursuant to 12 U.S.C. § 1821(c)(3)(A) prior to the institution of this lawsuit. This court has jurisdiction of this matter pursuant to 12 U.S.C. § 1821(d)(6) and 28 U.S.C. § 1332.
Aljaf's complaint alleges, among other things, that Meritor committed fraud by falsely certifying that it was in compliance with the maintenance provisions of the sublease. The FDIC has moved for summary judgment on plaintiff's fraud claim. It contends that Aljaf failed to exhaust the mandatory administrative remedy set forth in the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"), at 12 U.S.C. § 1821(d), before instituting suit on this claim.
Although the FDIC has denominated its motion as a motion for summary judgment, its sole argument is that this court lacks subject matter jurisdiction over plaintiff's fraud claim. A motion predicated on lack of subject matter jurisdiction is properly brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion to dismiss for lack of subject matter jurisdiction may be made at any time. See Fed. R. Civ. Proc. 12(h)(3); 2A Moore's Federal Practice P 12.07. This court will therefore consider defendant's motion as one brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Section 1821(d)(13)(D) of FIRREA specifies that:
Except as otherwise provided in this subsection, no court shall have jurisdiction over -
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the [FDIC] has been appointed receiver, including assets which the [FDIC] may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the [FDIC] as receiver.
12 U.S.C. § 1821(d)(13)(D). Section 1821(d)(6) provides an exception to the jurisdictional bar of § 1821(d)(13)(D) for "claims which have been properly submitted through the administrative claims procedure." National Union Fire Ins. Co. v. City Savings, F.S.B., 28 F.3d 376, 385 (3d Cir. 1994).
On January 25, 1993, plaintiff sent the FDIC a letter which described Aljaf's claim as being based on:
(i) all defaults under the [sublease], (ii) any waste that has occurred with respect to the Premises, (iii) any failure to perform obligations under the [sublease], and (iv) any consequential loss, cost, expense or liability to [Aljaf] as a result of any default or nonpayment under the [sublease].
In this letter, Aljaf informed the FDIC that it did not "maintain any day-to-day functions" pertaining to building maintenance, and requested "certification" from the FDIC that "all repair and maintenance of the ...