Youkelsone v. Federal Deposit Insurance Corporation ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
NADIA YOUKELSONE, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1278 (RMC)
)
FEDERAL DEPOSIT INSURANCE )
CORPORATION, as Receiver of )
Washington Mutual Bank, )
)
Defendant. )
_________________________________ )
OPINION
Nadia Youkelsone once owned a two-family residence in Brooklyn, New York.
After she failed to make mortgage payments, the mortgage holder, Federal National Mortgage
Association, initiated foreclosure proceedings in September 2001. Years of litigation followed,
with Ms. Youkelsone, an attorney, representing herself pro se. In this particular suit, Ms.
Youkelsone complains that Washington Mutual Bank, which held the mortgage before Fannie
Mae and continued to service it after its assignment to Fannie Mae, is liable to her for breach of
contract, various torts, abuse of process, and other legal wrongs. The Federal Deposit Insurance
Corporation stands in the shoes of Washington Mutual Bank as its Receiver since the Bank’s
collapse in 2008. FDIC-Receiver moves to dismiss the Second Amended Complaint.
The D.C. Circuit Court of Appeals has clarified that Ms. Youkelsone has standing
to sue WaMu. See Youkelsone v. FDIC, 660 F.3d 473 (D.C. Cir. 2011). Upon FDIC-Receiver’s
renewed motion to dismiss on remand, this Court determines that Ms. Youkelsone’s claims are
barred by the relevant statutes of limitations. The Second Amended Complaint will be
dismissed.
1
I. FACTS
Ms. Youkelsone owned a two-family dwelling on East 18th Street, Brooklyn,
New York, when this saga began. Second Am. Compl. [Dkt. 40] (Compl.) ¶ 16. Ms.
Youkelsone had purchased the property with a Note and Mortgage from GFI Mortgage on March
3, 1997. Id. ¶ 17; see also id., Ex. 1 (Mortgage), id., Ex. 2 (Note). That same day, GFI
Mortgage assigned the Note and Mortgage to Fleet Mortgage Corporation. Id. ¶ 18. Fleet
serviced and/or owned the Note and Mortgage until Fleet merged into Washington Mutual Home
Loans (WaMu), a subsidiary of Washington Mutual, Inc. (WMI). Id. ¶¶ 20–21. Within months,
on August 25, 2001, WaMu in turn assigned the Note and Mortgage to Fannie Mae. 1 Id. ¶ 23.
Fannie Mae recorded its interest in the New York City Registry’s office on November 15, 2001,
after the relevant events began to unfold. Id. ¶ 26. Apparently no notice of the assignment was
sent at that time to Ms. Youkelsone, and WaMu continued to service the Note and Mortgage
after the assignment to Fannie Mae, a cause for some confusion. Id. ¶¶ 24, 28–29.
Fannie Mae, taking the position that Ms. Youkelsone was in default on the Note,
initiated a foreclosure action in October 2001 in the Supreme Court of the State of New York in
Kings County, Case No. 36834/01 (Foreclosure Case). Id. ¶¶ 25–28; Fed. Nat’l Mortg. Ass’n v.
Youkelsone, No. 36834/01 (N.Y. Sup. Ct. filed Oct. 4, 2001). 2 Although Fannie Mae filed the
Foreclosure Case, Ms. Youkelsone alleges that WaMu “prepared, executed and filed debt
verifications” and acted together with Fannie Mae in “wrongful actions . . . including but not
limited to foreclosure action, bankruptcy proceeding, contract of sale, subsequent actions in
1
The Complaint omits the final digit of the year of this event, but the rest of the record confirms
it to be 2001. E.g., Pl. Opp. Def. Mot. Dismiss [Dkt. 45] (Pl. Opp.) at 5.
2
Ms. Youkelsone avers that the Foreclosure Case was filed in September, although the publicly
available records show that it was filed on October 4, 2001.
2
satisfaction of mortgage.” Compl. ¶¶ 31–32. She complains that Fannie Mae and WaMu “aided
and abetted each other in commission of tort[i]ous actions against [her] and in facilitation of the
scheme designed to defraud and to misappropriate [her] property and [her] property right.” Id.
¶ 34.
Fannie Mae’s efforts to foreclose were contested long and loudly by Ms.
Youkelsone, beginning immediately in 2001. See Fed. Nat’l Mortg. Ass’n v. Youkelsone
(Foreclosure Case Supreme Court Sanctions Opinion), No. 36834/01, at *5 (N.Y. Sup. Ct. April
4, 2003) (denying Ms. Youkelsone’s motion for sanctions; granting Fannie Mae’s motion for
sanctions against Ms. Youkelsone), attached as Def. Mem. Supp. Mot. Dismiss (Def. Mem.), Ex.
1 [Dkt. 41-2]. Shortly after Fannie Mae filed the Foreclosure Case, Ms. Youkelsone filed a
separate suit against Fleet Mortgage Corporation in the Supreme Court of New York in Kings
County (State Court Case). See Youkelsone v. Fleet Mortg. Corp., No. 50145/2001 (N.Y. Sup.
Ct. filed Dec. 24, 2001). The Supreme Court denied Ms. Youkelsone’s motion to dismiss the
complaint in the Foreclosure Case, and the Appellate Division affirmed. See Fed. Nat’l Mortg.
Ass’n v. Youkelsone (Foreclosure Case Appellate Division Opinion), 755 N.Y.S.2d 730 (App.
Div. 2003). The Appellate Divison held that Fannie Mae had standing to bring the Foreclosure
Case because the assignment from WaMu was valid and that Ms. Youkelsone’s unspecified
“remaining contentions” were meritless. Id. at 730.
Ms. Youkelsone contends that her equitable interest in the property during the
Foreclosure Case was over $600,000, which “far exceeded” the Note, worth approximately
$150,000 in principal. Compl. ¶¶ 36, 79. Throughout the foreclosure proceedings, Ms.
Youkelsone attempted to sell her property privately, but WaMu is alleged to have “continuously
rejected” and/or “ignored” her pleas. Id. ¶¶ 37–38. She alleges that she was forced to “file a
3
Chapter 13 bankruptcy” as a direct result of “the defendant’s wrongdoings.” Id. ¶ 39. The
records of the Bankruptcy Court for the Eastern District of New York reveal that Ms.
Youkelsone filed a voluntary Chapter 13 petition on June 19, 2003, and, on WaMu’s motion, the
Bankruptcy Court dismissed the case pursuant to 11 U.S.C. § 1307(c) on November 24, 2003.
See In re Nadia Youkelsone, Bankr. No. 1-03-18019 (Bankr. E.D.N.Y. filed June 19, 2003). Ms.
Youkelsone complains that WaMu falsely informed the bankruptcy court that she was delinquent
on her Note, failed to apply her payments to the Note, and, “together with [Fannie Mae] engaged
in[] the scheme to misappropriate the equity interest in [her] dwelling, and to deprive [her] of the
benefit of the Bankruptcy Code” by misrepresentations to that court. Compl. ¶¶ 40-50. “As a
result of the Defendant’s continuous fraudulent scheme, [Ms. Youkelsone’s] bankruptcy plan
was not approved and [the] bankruptcy petition was dismissed in December, 2003.” Id. ¶ 53.
In August 2002, the New York Supreme Court dismissed the State Court Case,
and the Appellate Division affirmed. Youkelsone v. Fed. Nat’l Mortg. Ass’n (State Court Case
Appellate Division Opinion), 765 N.Y.S.2d 792, 792 (App. Div. 2003) (“To the extent plaintiff’s
claims are dependent upon the alleged invalidity of the assignment, an allegation conclusively
rejected (see [Foreclosure Case Appellate Division Opinion]), or were otherwise asserted and
necessarily decided in consequence of plaintiff's motion practice in the Kings County foreclosure
action, they are barred by the principles of collateral estoppel. Moreover, the complaint, even
when viewed in the light most favorable to plaintiff, states no cognizable claim for relief.”
(citations omitted)).
Judgment was entered in the Foreclosure Case in April 2003, and the sum of
$177,609.44, with interest, was ordered due to Fannie Mae. Fed. Nat’l Mortg. Ass’n v.
Youkelsone (Foreclosure Case Judgment of Foreclosure), No. 36834/01, at *4 (N.Y. Sup. Ct.
4
Apr. 30, 2003), attached as Def. Mem. Ex. 2 [Dkt. 41-3]. The Supreme Court ordered that Ms.
Youkelsone’s property be sold at public auction. Id.at *2. Ms. Youkelsone was also sanctioned
in the amount of $6,000 for her obstreperous conduct throughout the Foreclosure Case.
Foreclosure Case Supreme Court Sanctions Opinion at *5–7.
Early in 2004, Ms. Youkelsone continuing trying to sell her property privately.
She alleges that she entered into a workout plan “with the Defendant [WaMu]” on February 5,
2004, and provided all requested documentation but “Defendant [WaMu] did not respond and
made no determination of [Ms. Youkelsone’s] application to cure the default.” Compl. ¶¶ 55–
57. 3 Despite her efforts, “Defendant [WaMu]” scheduled a foreclosure sale on February 26,
2004. Id. ¶ 58. Ms. Youkelsone delivered “a copy of a written contract to Defendant [WaMu]”
to obtain permission to sell the property herself on February 19, 2004, and “Defendant [WaMu]
formally consented and gave permission . . . and stayed the foreclosure sale.” Id. ¶¶ 62–63.
When, however, Ms. Youkelsone was ready to move to settlement and requested a payoff
statement on June 21, 2004, “Defendant [WaMu] failed to respond.” Id. ¶ 67. Despite “at least
five” efforts, Ms. Youkelsone was unable to obtain the documentation needed to close on the
private sale; instead, “the defendants” filed an application in October 2004 to conduct an auction
on November 18, 2004. Id. ¶¶ 73–74. Ms. Youkelsone alleges that “[i]n its application for
foreclosure dated October 22, 2004 the defendant [WaMu] demanded the sum in the amount of
$177,609.44 which included excessive interest rates, improper legal fees and expenses not
incurred by the defendant.” Id. ¶ 75.
3
These allegations may be perceived to be inconsistent. It may be that Ms. Youkelsone only
applied to work out her default and that she got no response to that application, not that both
parties agreed to a workout plan.
5
The Court pauses to note the confusion between WaMu and Fannie Mae present
throughout the Complaint in this case, as well as the Complaint in Ms. Youkelsone’s other case
before this Court, Civ. No. 10-1375. Ms. Youkelsone has separate lawsuits against WaMu
(through FDIC-Receiver) and Fannie Mae, but her recitation of allegations in the instant
Complaint against WaMu clearly includes some actions, such as moving to foreclose in October
2004 and demanding payment, that only Fannie Mae could have taken. This confusion also
surfaced in an unsuccessful lawsuit against WaMu’s parent corporation, Washington Mutual,
Inc. (WMI), wherein Ms. Youkelsone alleged that WMI took and was liable for these same acts
of interference, falsehood and unfair dealings. In re Wash. Mut., Inc. (Bankruptcy Court
Opinion), Bankr. No. 08-12229, Adv. No. 09-50039, 2010 WL 3238903, at *1 (Bankr. D. Del.
Aug. 13, 2010). 4 Ms. Youkelsone filed another lawsuit in the New York Supreme Court of
Suffolk County on February 9, 2009, this time taking aim at “Washington Mutual Home Loans.”
Youkelsone v. Washington Mutual Home Loans, No. 40405/2008 (N.Y. Sup. Ct. filed Feb. 9,
2009). The publicly available records confirm that the case is “disposed” but provide no further
details.
4
On September 25, 2008, the Office of Thrift Supervision seized WaMu and appointed FDIC as
Receiver; on that same date, FDIC-Receiver sold substantially all of the assets and liabilities of
WaMu to JPMorgan Chase Bank, National Association. Bankruptcy Court Opinion, 2010 WL
3238903, at *1. Without its subsidiary WaMu, its single asset, WMI filed for bankruptcy
protection in Delaware, where Ms. Youkelsone pursued these same allegations against WMI.
She told the Delaware Bankruptcy Court handling the WMI bankruptcy that she had “entered
into a workout plan with WMI and on February 5, 2004, provided WMI with all the required
documents and information . . . [but] WMI made no determination on [her] application to cure
the default.” Id. (citations omitted). WMI allegedly scheduled a foreclosure sale on February
26, 2004, but then agreed with Ms. Youkelsone that she could sell the property privately. Id. at
*1–2 (citations omitted). WMI thereafter refused or failed to send settlement papers, as
requested, to Ms. Youkelsone, and the matter dragged on into the fall of 2004, when WMI finally
sent her the papers needed for settlement and Ms. Youkelsone sold the property at a loss. Id.(citations omitted).
6
On October 24, 2004, prior to the auction allegedly scheduled for November 18,
Ms. Youkelsone received the payoff statement needed to close the sale of the property. Compl.
¶ 78. It included finance charges for the months of delay, attorney fees, and other fees and
charges, which she disputes. Id. ¶ 80. Ultimately, however, Ms. Youkelsone sold the property
privately on November 11, 2004, for an undisclosed price. Id. ¶¶ 82–83. The Complaint alleges
that due to the unreasonable delay in providing a payoff statement and other closing documents,
as well as WaMu and Fannie Mae’s other alleged acts, Ms. Youkelsone lost her property and
equity of at least $630,000; lost her place of work at a value of at least $15,000/year; lost rental
income in excess of $20,000/year; and lost her reputation and the good name of her business to a
value of at least $400,000/year. Id. ¶¶ 90–94. Ms. Youkelsone also complains that WaMu
and/or Fannie Mae “failed to discontinue” the Foreclosure Case “[u]pon receival [sic] of full
payment under the loan,” causing her to “incur further financial damages and loss of substantial
property rights.” Id. ¶¶ 99–100. The foreclosure action was maintained until October 2009, and
during “the 2008–2009 discontinuance proceeding defendant concealed the documents and legal
papers to hide its true identity.” Id. ¶¶ 105, 107–08.
From these events, Ms. Youkelsone complains of FDIC-Receiver/WaMu: Count
I, abuse of process in the New York State foreclosure and bankruptcy cases; Count II, breach of
contract on the Note and Mortgage by over-charging fees and expenses, failing to provide
documents, and acting in bad faith; Count III, unjust enrichment through exorbitant fees, excess
charges and wrongfully-retained monies; Count IV, bad faith in aiding and abetting Fannie Mae
and lacking fair dealing; Count V, violation of N.Y. Real Prop. Acts § 1921(4); Count VI,
Violation of the Truth in Lending Act (TILA), 15 U.S.C. § 1639; Count VII, deceptive consumer
practices leading to excessive fees, interest and other charges; Count VIII, misrepresentation,
7
fraud and deceit; Count IX, intentional infliction of emotional harm; Count X, intentional
interference with business relations; Count XI, economic duress; Count XII, violation of the
Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. § 1961 et seq.; and Count
XIII, aiding and abetting Fannie Mae in committing fraud, misrepresentation, conversion and
misappropriation.
II. LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
a claim. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(1). A complaint must be sufficient “to give a defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations omitted). Although a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. The facts alleged “must be enough to raise a right to relief above the
speculative level.” Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a
right to relief. Id. at 555 n.3. “[A] complaint needs some information about the circumstances
giving rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16
n.4 (D.C. Cir. 2008) (emphasis in original).
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). To survive a
8
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is “plausible on its face.” Twombly, 550 U.S. at 570. When a plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged, then the claim has facial plausibility. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.A court must treat the complaint’s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations. When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
In deciding a motion under Federal Rule of Civil Procedure 12(b)(6), a court may
take judicial notice of public records from other proceedings. Abhe & Svoboda, Inc., 508 F.3d at
1059; see Covad Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005)
(permitting judicial notice of facts contained in public records of other proceedings); Mintz v.
FDIC, 729 F. Supp. 2d 276, 277 (D.D.C. 2010) (judicial notice of statement contained in an SEC
filing); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007) (in
examining a Rule 12(b)(6) motion to dismiss, a court “must consider the complaint in its
entirety, as well as . . . matters of which a court may take judicial notice.”). Specifically, a court
may take judicial notice of historical, political, or statistical facts, or any other facts that are
verifiable with certainty. Mintz, 729 F. Supp. 2d at 278 n.5 (internal citation omitted).
9
Nevertheless, the matters to be noticed must be relevant, and it is within the discretion of the
court to decline to take judicial notice. See Whiting v. AARP, 637 F.3d 355, 364 (D.C. Cir. 2011)
(holding that the district court did not abuse its discretion in denying a motion to take judicial
notice of congressional materials relating to the Senate Finance Committee’s investigation of
AARP’s health insurance practices).
III. ANALYSIS
FDIC-Receiver asks the Court to dismiss Ms. Youkelsone’s Complaint in full. It
argues that all of her claims are barred by the applicable statutes of limitations; that most of her
claims are barred by collateral estoppel; and that the Complaint fails to state any claim upon
which relief may be granted. Ms. Youkelsone opposes the motion. She contends that the
statutes of limitations do not make her action untimely; that collateral estoppel does not bar any
portion of her Complaint; and that she sufficiently states all claims. As set forth below, the
Court concludes that all of Ms. Youkelsone’s claims are untimely and dismisses the Complaint.5
A. Statutes of Limitations
The first issue the Court must confront is whether Ms. Youkelsone’s claims are
timely. She brings claims under New York state law and two federal statutes, TILA (Count VI)
and RICO (Count XII). The two federal statutes have their own statutes of limitations, but the
parties dispute whether the Court should apply the New York or District of Columbia statutes of
limitations to Ms. Youkelsone’s state law claims. Ms. Youkelsone also argues that, even if the
5
Because it concludes that all of Ms. Youkelsone’s claims are untimely, the Court does not
determine whether they are also precluded by any of the myriad of prior cases Ms. Youkelsone
has filed or whether she has sufficiently pled a cause of action under any of the thirteen counts.
As noted briefly below, however, the Court strongly doubts that Ms. Youkelsone could maintain
any of the putative causes of action due to issue preclusion and/or failure to state a claim.
10
more restrictive District of Columbia statutes apply, her Complaint is timely for a number of
other reasons.
The Court first determines that the District of Columbia’s statutes of limitations
bar Ms. Youkelsone’s state law claims. The Court then addresses the TILA and RICO statutes of
limitations, concluding that those claims are also untimely. Lastly, the Court rejects Ms.
Youkelsone’s alternative arguments as to why her claims are timely.
1. Because District of Columbia Statutes of Limitations Apply, All of
Ms. Youkelsone’s State Law Claims Are Subject to a Three-Year
Limitations Period and Are Time-Barred
Ms. Youkelsone sues FDIC-Receiver in the District of Columbia pursuant to 12
U.S.C. § 1821(d)(6)(A)(ii) because FDIC is acting as Receiver for WaMu under the Financial
Institutions Reform, Recovery, and Enforcement Act, Pub. L. No. 101-73, 103 Stat. 183 (1989)
(codified in scattered sections of 12 U.S.C.). FIRREA thus extends a special kind of federal
jurisdiction outside the scope of 28 U.S.C. § 1331, the normal source of federal question
jurisdiction. See 12 U.S.C. § 1821(d)(6)(A)(ii) (providing that this Court “shall have
jurisdiction” to review a disallowed claim against a depository institution for which the FDIC is
receiver). Inasmuch as her suit is not based on the diversity of the parties’ citizenship, but on an
explicit grant of federal jurisdiction, Ms. Youkelsone argues that federal common law and
federal choice-of-law principles must guide the statute of limitations analysis, not the law of the
forum, the District of Columbia. Pl. Opp. Def. Mot. Dismiss [Dkt. 45] at 13–14. She concludes
that New York has much the greater interest in the controversy, so its law should apply. Id. at
14. FDIC-Receiver rests its argument to the contrary on A.I. Trade Finance, Inc. v. Petra
International Banking Corp., 62 F.3d 1454, 1459–60 (D.C. Cir. 1995), which, in turn, cited
O’Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994) (addressing FIRREA specifically and
11
noting that “matters left unaddressed in such a [comprehensive and detailed] scheme are
presumably left subject to disposition provided by state law”). See Def. Mem. at 5.
A.I. Trade controls the choice-of-law outcome here. The Circuit has determined
that the normal rule—“a federal court applies state law when it decides an issue not addressed by
federal law”—applies “regardless of the source from which the cause of action is deemed to have
arisen for the purpose of establishing federal jurisdiction.” A.I. Trade, 62 F.3d at 1463. This is
the rule irrespective of whether the parties are in federal court because of diversity of citizenship
or some other basis. Id. “The Erie 6 doctrine is not simply a rule of convenience for diversity
cases but an acknowledgement of the powers of the several states . . . .” Id. at 1464. Moreover,
although A.I. Trade concerned the Edge Act, 12 U.S.C. § 611 et seq., the D.C. Circuit recently
held in a case nearly identical to this one, albeit in an unpublished opinion, that A.I. Trade’s rule
extends to cases where jurisdiction is based on FIRREA, and thus D.C. choice of law rules apply
to state law claims in such cases. DuBois v. Washington Mutual Bank, No. 10-5333, 2012 WL
5882567, at *1 (D.C. Cir. Nov. 8, 2012). Ms. Youkelsone’s arguments to the contrary are
unavailing; this Court is bound by Circuit precedent.
The Court thus applies the District of Columbia’s choice-of-law rules to
determine whether to apply the statutes of limitations of New York or the District of Columbia.
In the District, statutes of limitations are procedural, which means that the statutes of limitations
of the forum—i.e., those of the District of Columbia, not those of New York—apply to Ms.
Youkelsone’s claims. See A.I. Trade, 62 F.3d at 1458; DuBois, 2012 WL 5882567, at *1 (“We
conclude that the District Court correctly applied District of Columbia choice-of-law rules and
6
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79 (1938) (holding that “federal courts exercising
jurisdiction in diversity of citizenship cases should apply state law except in ‘matters governed
by the Federal Constitution or by Acts of Congress’”).
12
the three-year statute of limitations indicated.”); see also Namerdy v. Generalcar, 217 A.2d 109,
113 (D.C. 1966) (“[A] limitation on the time of suit is procedural and is governed by the law of
the forum.”). All of Ms. Youkelsone’s claims, except Counts VI (TILA) and XII (RICO), are
founded in state 7 law and thus are governed by the District’s statute of limitations, D.C. Code
§ 12-301. That provision provides for a limitations period of three years for cases arising from
“a simple contract, express or implied,” id. § 12-301(7), and for cases “for which a limitation is
not otherwise specially prescribed,” id. § 12-301(8).
Each of her state-law claims falls into one of those two categories. Accordingly,
a three-year statute of limitations applies to Ms. Youkelsone’s claims for: abuse of process
(Count I), 8 breach of contract (Count II), 9 unjust enrichment (Count III), 10 bad faith (Count
IV), 11 New York Real Property Actions and Proceedings Law § 1921(4) (Count V), 12 deceptive
7
For these purposes, the District of Columbia is treated as a state as opposed to a federally
administered entity.
8
D.C. Code §12-301(8) applies. See Nader v. Democratic Nat’l Comm., 567 F.3d 692, 699
(D.C. Cir. 2009); In re Rothenberg, 173 B.R. 4, 11 n.5 (Bankr. D.D.C. 1994).
9
D.C. Code § 12-301(7) applies. See Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1198
(D.C. 1984).
10
D.C. Code § 12-301(7) applies. See News World Commc’ns, Inc. v. Thompsen, 878 A.2d
1218, 1220–21 (D.C. 2005).
11
An independent “bad faith” claim, which is in the ordinary course limited to the insurance
context, e.g. Pavia v. State Farm Mut. Auto. Ins. Co., 626 N.E.2d 24, 28 (N.Y. 1993), is not
recognized in the District. See Fireman’s Fund Ins. Co. v. CTIA, 480 F. Supp. 2d 7, 9–16
(D.D.C. 2007) (discussing issue comprehensively). The D.C. Code catch-all statute of
limitations, § 12-301(8), thus applies.
12
Count V, over which the Court has supplemental jurisdiction, is governed by the District’s
residual 3-year statute of limitations in D.C. Code § 12-301(8). See Dubois v. Wash. Mut. Bank,
Civ. No. 09-2176, 2010 WL 3463368, at *6 (D.D.C. Sept. 3, 2010) (applying residual limitations
period to a New Jersey statutory claim against FDIC-Receiver), aff’d, 2012 WL 5882567 (D.C.
Cir. Nov. 8, 2012); A.I. Trade, 62 F.3d at 1463. New York Real Property Actions and
Proceedings Law § 1921(4) itself contains no limitations period. See Lester v. Bickford, 452
13
practices (Count VII), 13 misrepresentation, fraud and deceit (Count VIII), 14 intentional infliction
of emotional distress (Count IX), 15 intentional interference with business relations (Count X), 16
economic duress (Count XI), 17 and aiding and abetting (Count XIII). 18
Under D.C. law, the statute of limitations period begins to run “from the time the
right to maintain the action accrues.” D.C. Code § 12-301. Because the D.C. Code does not
define “accrues,” the general rule in the District is that “[w]here the fact of an injury can be
readily determined, a claim accrues for purposes of the statute of limitations at the time the
injury actually occurs.” Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc)
(citations omitted). “If the existence of an injury is not readily apparent, however, the claim does
not accrue until the plaintiff, exercising due diligence, has ‘discovered or reasonably should have
discovered all of the essential elements of her possible cause of action, i.e., duty, breach,
N.Y.S.2d 124, 125 (App. Div. 1982) (contrasting action under § 1921, governed by general New
York six-year statute of limitations, with action under N.Y. Real Prop. Acts. § 1501, which has a
special, longer limitations period).
13
D.C. Code § 12-301(8) applies. See Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp.
2d 1473, 1476 (D.D.C. 1998).
14
D.C. Code § 12-301(8) applies. See Riddell v. Riddell Wash. Corp., 866 F.2d 1480, 1489
(D.C. Cir. 1989).
15
D.C. Code § 12-301(8) applies. See Rendall-Speranza v. Nassim, 107 F.3d 913, 920 (D.C. Cir.
1997).
16
D.C. Code § 12-301(8) applies. See Zandford v. Nat’l Ass’n Sec. Dealers, Inc., 30 F. Supp. 2d
1, 23 (D.D.C. 1998), aff’d, 221 F.3d 197 (D.C. Cir. 2000).
17
The District does not recognize “economic duress” as a cause of action. See Bennett Enters.,
Inc. v. Domino’s Pizza, Inc., 794 F. Supp. 434, 438 (D.D.C. 1992). D.C. Code § 12-301(8) thus
applies.
18
D.C. Code § 12-301(8) applies. See Johnson v. Long Beach Mortg. Loan Trust 2001-4, 451 F.
Supp. 2d 16, 48 (D.D.C. 2006).
14
causation and damages.’” Farris v. Compton, 652 A.2d 49, 54 (D.C. 1994) (quoting Colbert,
641 A.2d at 473).
Ms. Youkelsone, who filed her complaint in this Court on July 10, 2009, does not
contest the analysis of D.C. law presented by FDIC-Receiver; she only contests whether it
applies at all because she believes New York law should apply. Thus, she has waived any right
to contest these points now. See, e.g., United States v. Real Prop. Identified as: Parcel 03179–
005R, 287 F. Supp. 2d 45, 61 (D.D.C. 2003) (collecting cases concluding that a party concedes
an argument raised by an opposing party's memorandum by filing a responsive memorandum
that neglects to address the argument). They are, in any event, fundamental principles that are
well settled in local law. Moreover, there is no doubt that Ms. Youkelsone was
contemporaneously aware of her alleged injuries and that she has repeatedly asserted her legal
rights in other fora long before July 10, 2006, three years prior to filing her complaint. Her
claims are untimely.
The publicly available records, of which the Court takes judicial notice, confirm
that Ms. Youkelsone was aware of her alleged injuries likely as early as 2001 and certainly no
later than November 2004. Her efforts to dismiss the Foreclosure Case, Fed. Nat’l Mortg. Ass’n
v. Youkelsone, No. 36834/01 (N.Y. Sup. Ct. filed Oct. 4, 2001), were rejected on appeal,
Foreclosure Case Appellate Division Opinion, 755 N.Y.2d at 730, and she was sanctioned for
acting obstreperously and erratically and for filing frivolous motions, Foreclosure Case Supreme
Court Sanctions Opinion, No. 36834/01, at *5. Indeed, in the Foreclosure Case, Ms. Youkelsone
extensively asserted variants of the same chimerical claims she presses here, such as her theory
that the “foreclosure proceeding [was] fraudulent.” Id. at *4. One bite at the apple might have
been enough for most litigants, but Ms. Youkelsone’s quixotic crusade encompassed several
15
more nibbles, each unsuccessful. See Youkelsone v. Fleet Mortg. Corp., No. 50145/2001 (N.Y.
Sup. Ct. filed Dec. 24, 2001) (collateral attack on foreclosure proceeding, dismissed by the
Supreme Court and affirmed by the Appellate Division in 2003); In re Youkelsone, No. 03-18019
(Bankr. E.D.N.Y. 2003) (personal bankruptcy proceeding, dismissed in 2003); Bankruptcy Court
Opinion, 2010 WL 3238903, at *1; Youkelsone v. Fed. Nat’l Mortg. Ass’n, Civ. No. 10-1705
(D.D.C. filed Oct. 5, 2010) (companion case currently pending).
According to her own allegations, the latest date on which the claims here accrued
was either October 24, 2004, when WaMu allegedly provided Ms. Youkelsone with a final
payoff statement, Compl. ¶ 78, or November 11, 2004, when she closed on the sale of the
property at a loss, id. ¶ 83. Notably, the Complaint alleges that WaMu harmed her as early as
2001, claims that are even more stale. Id. ¶¶ 28-32. But Ms. Youkelsone filed this action
against FDIC-Receiver for WaMu on July 20, 2009, almost five years after the Bank’s last
relevant act and well outside the relevant three-year D.C. statutes of limitations. See Dubois,
2012 WL 5882567, at *1 (affirming dismissal of nearly identical claims as barred by District’s
three-year statutes of limitations).
Notwithstanding that her claims clearly accrued no later than November 2004,
Ms. Youkelsone argues that the Complaint is timely because she alleges “continuing wrongful
conduct” and “continuing injury stemming from the defendant’s direct act and wrongdoings.”
Pl. Opp. at 18. She relies on paragraphs 99 through 113 of the Complaint, which detail how “the
Defendant” did not officially discontinue the Foreclosure Case until October 2009 “with intent to
cause the damages to [Ms. Youkelsone] and to her reputation.” Pl. Opp. at 18. This argument is
factually flawed, however: Fannie Mae was the plaintiff in the Foreclosure Case, meaning that
the delay in vacating the New York court’s order in that case cannot be attributed to WaMu or
16
FDIC-Receiver. Moreover, the mere fact that the Foreclosure Case remained administratively
open until September 24, 2010, has no bearing on Ms. Youkelsone’s ability, or inability to
discover the “essential elements” of the causes of action she has asserted. 19 See Farris, 652 A.2d
at 54; see also In re Wash. Mut., Inc., 2010 WL 3238903, at *6 n.5 (reaching same conclusion as
to Ms. Youkelsone’s allegations regarding 2008 and 2009). This is especially true given Ms.
Youkelsone’s extensive history of litigating these claims, her failure to plead facts to support her
bare assertion that the pendency of the foreclosure proceeding somehow caused her damages,
and the lack of any explanation why she herself could not have advised the New York Supreme
Court that the Foreclosure Case was moot. See Dubois, 2012 WL 5882567, at *1 (affirming
dismissal of nearly identical claims on statute of limitations ground despite argument that
“ongoing acts that occurred within the three-year period prior to the filing of [the] Complaint”
because plaintiff was “aware of the defendants’ alleged improprieties” more than three years
prior to filing).
The three-year statutes of limitations for all of Ms. Youkelsone’s state law claims
began to run no later than November 11, 2004. See D.C. Code § 12-301(7), (8). Because none
of Ms. Youkelsone’s other arguments as to why these claims are timely is persuasive, as
explained below, Counts I through V, VII through XI, and XIII will all be dismissed as untimely.
2. Ms. Youkelsone’s Federal Law Claims
Federal law provides the statutes of limitations for Ms. Youkelsone’s TILA claim
(Count VI) and RICO claim (Count XII). A TILA claim must be brought “within one year from
the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). “In this circuit, violation of
19
This might be different if Ms. Youkelsone’s only theory of damages was being in the
Damoclean situation of having faced the threat of foreclosure for over five years. Those are not
the facts here; the property passed to someone else’s hands no later than November 2004.
17
TILA occurs no later than the date of settlement of [the] loan . . . .” Lawson v. Nationwide
Mortg. Corp., 628 F. Supp. 804, 807 (D.D.C. 1986) (citing, inter alia, Postow v. OBA Fed. Sav.
& Loan Ass’n, 627 F.2d 1370, 1380 (D.C. Cir. 1980)).
The actions of which Ms. Youkelsone complains under TILA concern “deliberate
and willful dilatoriness in providing the closing documents.” Compl. ¶ 165. This wrong, if not
its consequences, ended on October 24, 2004, when a payout statement and documents for
closing were supplied to Ms. Youkelsone, after which she sold the property. Id. ¶ 78. There is
no doubt that Ms. Youkelsone believed at the time that she was wronged by delayed delivery of
the necessary documents, knew to whom to complain, did complain multiple times, and was not
the victim of any fraudulent concealment in regard to the untimeliness of settlement papers.
Because the “date of the occurrence of the violation” was no later than October 24, 2004, and
Ms. Youkelsone filed her Complaint years after the one-year statute of limitations expired, Count
VI, her TILA claim, is time-barred. See 15 U.S.C. § 1640(e); cf. Dubois, 2010 WL 3463368, at
*6 (dismissing federal law claims against FDIC-Receiver in similar case on timeliness grounds),
aff’d, 2012 WL 5882567 (D.C. Cir. 2012).
It is well established that RICO claims are subject to a four-year statute of
limitations period, Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 156
(1987), which begins to run “when a plaintiff knew or should have known of his injury,” Rotella
v. Wood, 528 U.S. 549, 553 (2000), cited in Brown v. Wachovia Bank, No. 07-5188, 2008 WL
2516476, at *1 (D.C. Cir. Feb. 26, 2008). 20 Ms. Youkelsone alleges that a RICO enterprise
20
Rotella discussed the three approaches circuit courts had used in determining when RICO
claims accrue. Although Rotella eliminated the “injury and pattern discovery” rule, and Klehr v.
A.O. Smith Corp., 521 U.S. 179 (1997) eliminated the “last predicate act” rule, the Supreme
Court in Rotella noted that an “injury occurrence” rule was also plausible in addition to the
“injury discovery” rule used by several circuits. 528 U.S. at 554 & n.2. The D.C. Circuit has not
18
consisting of WaMu, WMI, and Fannie Mae engaged in a pattern of racketeering activity
encompassing conversion, unjust enrichment, and other illegal acts “including fraud, corruption,
concoction, imposition, improper influence upon the court,” so that Ms. Youkelsone “was
deprived of any access to the State Courts . . . .” Compl. ¶¶ 211, 221. 21 As discussed at length
above, the alleged injury underlying Ms. Youkelsone’s RICO claim is one of which she was
certainly aware well before 2004. See Foreclosure Case Supreme Court Sanctions Opinion, No.
36834/01, at *3 (discussing how Ms. Youkelsone alleged in 2002 a “conspiracy” consisting of
Fannie Mae, its attorneys, the New York Supreme Court Clerk’s office, the Appellate Division’s
deputy clerk, a court reporter, a Deputy Attorney General, and the New York Supreme Court
judge). Ms. Youkelsone argues that her claim is also for predatory lending practices by WaMu,
Pl. Opp. at 58–59; even if WaMu did engage in predatory practices, however, she was no longer
affected by such practices once she paid off the Note and Mortgage in 2004, more than four
years in advance of filing this Complaint. Certainly, she was not ignorant of the matters about
which she complains in her RICO claim and about which she has complained in other courts on
other occasions already. Ms. Youkelsone’s RICO claim, Count XII, is time-barred. Cf. Dubois,
2010 WL 3463368, at *6.
spoken definitively on the issue but cited Rotella’s discussion of the “injury discovery” rule in its
unpublished opinion in Brown, in which the district court applied the “injury discovery” rule to a
RICO claim. The D.C. Circuit affirmed without discussing the issue in any meaningful way.
Because the “injury occurrence” rule would be less favorable to Ms. Youkelsone than the “injury
discovery” rule, the Court’s conclusion does not hinge on this issue.
21
On a motion to dismiss, a court normally accepts all of a plaintiff’s statements of fact, no
matter how dubious or difficult to prove. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 679.
Given the history of Ms. Youkelsone’s very active litigation in New York State courts, of which
the Court has taken judicial notice, this particular allegation seems dubious at best. When
reviewing a complaint to determine if it is “facially plausible,” a court is faced with “a context-
specific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
19
3. Ms. Youkelsone’s Alternative Arguments as to Timeliness
Ms. Youkelsone seeks to avoid application of the recited statutes of limitations on
two bases. First, she argues that she had filed a state court action in New York that tolled the
statutes of limitation, Pl. Opp. at 17, and second, she argues that equitable tolling and/or estoppel
should apply because of the continuing nature of the wrongful conduct and the alleged fraud, id.at 18–19. Upon examination, neither argument can prevail.
Ms. Youkelsone relies on a “state court lawsuit [she initiated] in November 2008
against the Bank and its assignees which propelled a range of other lawsuits” as sufficient to toll
the statute of limitations for the instant claims under N.Y. civil procedure rules. Pl. Opp. at 17.
New York State law permits a plaintiff to re-file her suit a second time if a first complaint were
timely filed and not terminated by a voluntary dismissal, a failure to get personal jurisdiction
over the defendant, a dismissal for failure to prosecute, or a final judgment on the merits. N.Y.
C.P.L.R. § 205(a) (McKinney 2012). The Court understands Ms. Youkelsone to be referring to
her lawsuit in the New York Supreme Court of Suffolk County against “Washington Mutual
Home Loans.” Youkelsone v. Wash. Mut. Home Loans, No. 40405/2008 (N.Y. Sup. Ct. filed
Feb. 9, 2009). 22 But the New York civil procedure rules do not apply outside proceedings in
22
The publicly available records from the New York Supreme Court reflect that the case is
closed but do not yield further detail as to how the case was resolved. In her Ms. Opposition to
the motion to dismiss in the now-pending companion case, Youkelsone v. Federal National
Mortgage Association, Civ. No. 10-1705, she describes the Suffolk County case as:
The action [she] filed in November 2008 in [the] Supreme Court of New
York, Suffolk County against Washington Mutual Home Loans,
Washington Mutual Bank, Washington Mutual and its assignees and
transferees. The court allowed FDIC[-Receiver] to be substituted as a
party for WaMu Bank . . . and then dismissed the action against FDIC on
jurisdictional grounds leaving the claims against the other parties.
Pl. Opp. Dismiss Compl., Civ. No. 10-1705 [Dkt. 10] at 6. According to Ms. Youkelsone, the
Suffolk County action was “nearly identical” to her lawsuit against Fannie Mae, Civ. No. 10-
20
New York State courts. See N.Y. C.P.L.R. § 101 (McKinney 2012) (“The civil practice law and
rules shall govern the procedure in civil judicial proceedings in all courts of the state and before
all judges, except where the procedure is regulated by inconsistent statute.” (emphasis added)).
The Federal District Court in the District of Columbia is not a New York State court. In
addition, it is “quite clear” that “filing an action in another jurisdiction does not toll the statute”
of limitations for claims filed here. A.I. Trade, 62 F.3d at 1467. Ms. Youkelsone’s reliance on
New York procedural rules is misplaced.
Ms. Youkelsone also contends that “equitable tolling” or “estoppel” make her
action timely for two reasons. See Pl. Opp. at 18–19. First, she insists that the improper course
of conduct continued until 2009, when Fannie Mae officially terminated the Foreclosure Case.
This argument is wrong on the law and the facts. Under D.C. law, statutes of limitations begin to
run when a plaintiff has, or reasonably should have, discovered his or her injury, not when a
plaintiff stops being injured. See Farris, 652 A.2d at 54. Ms. Youkelsone’s logic would
necessarily make any claim timely so long as a plaintiff has not been made whole, which would
be an absurd result. Moreover, WaMu was not the plaintiff in the Foreclosure Case and had
ceased to exist in September 2008 when FDIC-Receiver sold WaMu’s assets and most of its
liabilities to JPMorgan Chase. Bankruptcy Court Opinion, 2010 WL 3238903, at *1. The last
act allegedly taken by WaMu occurred on October 24, 2004, when Ms. Youkelsone received the
payout statement for closing on the sale of the property. See Compl. ¶ 78. That act predates the
filing of this suit by almost five years. Ms. Youkelsone advances no basis on which to toll the
1705, see id. at 8, and, by transitive property, nearly identical to the instant suit against FDIC-
Receiver in the shoes of WaMu. Presumably, because FDIC-Receiver was dismissed without a
decision on the merits, Ms. Youkelsone believes New York procedural rules save her Complaint
in this case. However, as the text discusses, the state rule on which she relies has no application
outside New York civil suits or outside New York State.
21
statutes of limitations against WaMu between October 2004, when WaMu allegedly delivered
papers for closing the property sale, and October 2009, when the Foreclosure Case was formally
ended.
Second, Ms. Youkelsone argues that equitable tolling is appropriate because she
was not aware of WaMu and Fannie Mae’s alleged wrongful conduct and because WaMu
fraudulently concealed its actions from her, allegedly engaging in “deliberate
concealment . . . [of] its true identity and true relation to [Ms. Youkelsone’s] damages.” Pl. Opp.
at 19. But the Court has already taken judicial notice of the history of litigation over the
foreclosure of her property including all the appeals, her bankruptcy case, and WMI’s
bankruptcy case, which clearly demonstrate otherwise. Ms. Youkelsone has been litigating this
set of issues since 2001; she cannot now claim ignorance in 2003 and 2004. The cases she cites
in support are completely inapposite, see Davis v. Johnson, 158 F.3d 806, 808–12 (5th Cir. 1998)
(holding that AEDPA can be tolled in “in rare and exceptional circumstances”) and Hohri v.
United States, 782 F.2d 227, 249–50 (D.C. Cir. 1986), vacated, 482 U.S. 64 (1987) (applying
equitable tolling in case described as “sui generis” in which government concealed lack of
“military necessity” for internment of Japanese-Americans), or factually dissimilar, see Celimar
Solar v. Millenium Financial, Inc., Civ. No. 01-4327, 2002 WL 1019047, at *2–3 (E.D. Pa. May
17, 2002) (pre-“Twiqbal” case tolling statute of limitations for plaintiff with learning disability
under Third Circuit precedent in case involving alleged concealed kickback scheme between
mortgage broker and lender). Although Ms. Youkelsone is here pro se, she is also an attorney,
as her pleadings make obvious, and she cannot claim either that actions by WaMu or the FDIC-
Receiver or that ignorance of the law obstructed her efforts to remedy the wrongs she perceives.
See Halvonik v. Kappos, 759 F. Supp. 2d 31, 32 n.1 (D.D.C. 2011) (holding that a pro se
22
attorney is “presumed to have knowledge of the legal system” and is “not entitled to the same
level of solicitude often afforded” pro se litigants who are lack legal training). The record, in
any event, belies such arguments.
For purposes of ruling on FDIC-Receiver’s motion to dismiss, the Court takes the
Complaint as pled and assumes that there was a cabal among WaMu, WMI and Fannie Mae that
acted improperly to force Ms. Youkelsone from her Brooklyn property in and after 2001.
Nonetheless, District of Columbia law does not permit this 2009 lawsuit based on alleged acts by
WaMu. The Court concludes and finds that the relevant statutes of limitations have run on all of
Ms. Youkelsone’s claims against WaMu and that none of her efforts to avoid that result is
meritorious.
B. Claim Preclusion and Failure to State a Claim
FDIC-Receiver also moves to dismiss Ms. Youkelsone’s Complaint because she
has previously contested the ownership and servicing of the Note and Mortgage and is now
precluded from advancing associated claims here and because she has failed to state a claim as to
any of the thirteen counts. Because it concludes that Ms. Youkelsone’s claims are all time-
barred, the Court does not endeavor to untangle exactly which issues were resolved in which of
Ms. Youkelsone’s earlier cases and which claims are precluded in the instant case. Instead, the
Court observes that two courts have given preclusive effect to the New York Supreme Court
Appellate Division’s determination that the assignment to Fannie Mae was valid and, therefore,
Ms. Youkelsone cannot allege ownership of the mortgage note by WaMu or WMI. Those courts
thus precluded her from raising claims related to the Foreclosure Case. See Bankruptcy Court
Opinion, 2010 WL 3238903, at *9 (“Because Youkelsone is barred from contesting ownership of
the mortgage note, the Court concludes that claims relating to the Foreclosure Action are barred
by issue preclusion because ownership of the note is an essential element of those claims.”);
23
State Court Case Appellate Division Opinion, 765 N.Y.S.2d at 792 (“To the extent plaintiff’s
claims are dependent upon the alleged invalidity of the assignment, an allegation conclusively
rejected [in the Foreclosure Case], they are barred by the principles of collateral estoppel.”).
This Court, likewise, concludes that Ms. Youkelsone is precluded by collateral estoppel from
complaining here against WaMu relating to the Foreclosure Case. She has already fully litigated,
and lost, her claims that either WaMu or WMI was liable for any related alleged misconduct.
That fact also reinforces the Court’s skepticism that Ms. Youkelsone has stated a
claim as to any of the thirteen counts alleged in the Complaint. For example, if she cannot
complain about the Foreclosure Case, she cannot state a claim for unjust enrichment deriving
from the premise that the Foreclosure Act was wrongful. See Compl. ¶ 147. Moreover, FDIC-
Receiver has offered persuasive arguments as to why each of Ms. Youkelsone’s claims should be
dismissed, and Ms. Youkelsone’s responses are unconvincing. Compare Def. Mem. at 19 (as to
Count VI, observing that the version of TILA in effect in 2004 did not require delivery of payoff
statements), with Pl. Opp. at 44 (responding merely that FDIC-Receiver’s argument is
“inapplicable”); see also Pl. Opp. at 45 (citing a case, Marine Midland Bank v. Stukey, 427
N.Y.S.2d 123 (App. Div. 1980), in support of “economic duress” claim, that holds that “[t]he
threatened exercise of a legal right cannot constitute duress”). Thus, even if Ms. Youkelsone’s
claims were not time-barred, they would almost certainly be subject to dismissal for failure to
state a claim. 23
23
Because Ms. Youkelsone’s claims are time-barred and further amendment would therefore be
futile, she will not be granted leave to file a Third Amended Complaint. See Howell v. Gray, 843
F. Supp. 2d 49, 54 (D.D.C. 2012) (reciting standard for amendment of complaint under Fed. R.
Civ. P. 15(a)(2)).
24
IV. CONCLUSION
For the reasons set forth above, the Court concludes that all thirteen of Ms.
Youkelsone’s claims are time-barred. FDIC-Receiver’s motion to dismiss will be granted, and
this case will be dismissed.
A memorializing Order accompanies this Opinion.
DATE: December 20, 2012
/s/
ROSEMARY M. COLLYER
United States District Judge
25