         Case: 11-13579   Date Filed: 01/10/2013   Page: 1 of 15

                                                                   [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT

                     ________________________

                           No. 11-13579
                     ________________________

                D. C. Docket No. 2:10-cv-14068-DLG

INTERFACE KANNER, LLC,

                                                    Plaintiff-Counter-
                                                    Defendant-Appellant,

                                versus

JPMORGAN CHASE BANK, N.A.,

                                             Defendant-Cross-Defendant-
                                             Appellee,

NATIONAL ASSOCIATION,

                                             Defendant-Appellee,

FEDERAL DEPOSIT INSURANCE
CORPORATION AS RECEIVER FOR
WASHINGTON MUTUAL BANK,

                                             Intervenor-Cross
                                             Claimant-Counter
                                             Claimant-Appellee.
              Case: 11-13579       Date Filed: 01/10/2013   Page: 2 of 15

                               ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (January 10, 2013)

Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.

DUBINA, Chief Judge:


      Appellant Interface Kanner, LLC (“Interface”) appeals two district court

orders that collectively granted Appellee JPMorgan Chase Bank, N.A.’s

(“JPMorgan”) motion for summary judgment, denied Interface’s motion for

summary judgment, and granted Appellee Intervenor Federal Deposit Insurance

Corporation’s (the “FDIC”) request for declaratory relief. In its order granting

summary judgment, the district court found that Interface lacked standing to assert

a breach of lease claim against JPMorgan. The district court also declared that the

FDIC owes no damages to Interface. For the reasons that follow, we vacate the

judgment of the district court and remand with instructions to dismiss for lack of

subject matter jurisdiction.



                                            I.



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      On April 15, 2008, Interface, as lessor, and Washington Mutual Bank

(“WaMu”), as lessee, entered into a lease agreement (the “Lease”) involving a

parcel of vacant real property located in Martin County, Florida. The Lease

obligated Interface to obtain necessary permits, approvals, and utilities for the

property and construct a bank on the premises. Thereafter, WaMu would use the

property as a bank branch location.

      On September 25, 2008, prior to performance, WaMu closed as a “failed

bank” and entered receivership under the direction of the FDIC. Consequently,

under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989

(“FIRREA”), Pub. L. No. 101-73, § 212 (codified as amended by 12

U.S.C. § 1821(c)), all of WaMu’s assets transferred to the FDIC. On the same day

that WaMu failed, the FDIC exercised powers afforded by FIRREA and entered a

Purchase and Assumption Agreement (“P & A Agreement”) with JPMorgan. The

P & A Agreement set forth the terms and conditions of the transfer of WaMu’s

assets and liabilities to JPMorgan. The P & A Agreement provided the following

language with respect to the rights of non-parties:

      13.5 Successors. All terms and conditions of this Agreement shall be
      binding on the successors and assigns of the Receiver, the Corporation
      and [JPMorgan]. Except as otherwise specifically provided in this
      Agreement, nothing expressed or referred to in this Agreement is
      intended or shall be construed to give any Person other than the
      Receiver, the Corporation and [JPMorgan] any legal or equitable
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         right, remedy or claim under or with respect to this Agreement or any
         provisions contained herein, it being the intention of the parties hereto
         that this Agreement, the obligations and statements of responsibilities
         hereunder, and all other conditions and provisions hereof are for the
         sole and exclusive benefit of the Receiver, the Corporation and
         [JPMorgan] and for the benefit of no other person.

[R. 37-3 at 45.]

         Under the P & A Agreement, JPMorgan acquired some, but not all, of the

assets and liabilities which passed from WaMu to the FDIC. While the P & A

Agreement provides JPMorgan the option to accept or reject “Bank Premises”

leases, it does not include a similar allowance for “Other Real Estate” leases. 1

Interface argues that JPMorgan assumed the Lease automatically under the P & A

Agreement as “Other Real Estate,” while JPMorgan and the FDIC argue that

JPMorgan had 90 days to accept or reject the Lease as a “Bank Premises.”

         Within 90 days of executing the P & A Agreement, JPMorgan gave the

FDIC and Interface notice that it would not assume the Lease. Following



1
    Under the P & A Agreement, “Bank Premises” is defined as
        the banking houses, drive-in banking facilities, and teller facilities (staffed or
automated) together with appurtenant parking, storage and service facilities and
structures connecting remote facilities to banking houses, and land on which the
foregoing are located, that are owned or leased by the Failed Bank and that are occupied
by the Failed Bank as of Bank Closing. [R. 23-4 at 2.]
         “Other Real Estate” is defined as
        all interests in real estate (other than Bank Premises and Fixtures) including but
not limited to mineral rights, leasehold rights, condominium and cooperative interests, air
rights and development rights that are owned by the Failed Bank. [Id. at 6.]
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JPMorgan’s election, the FDIC continued to treat the Lease as a retained liability.

Pursuant to 12 U.S.C. § 1821(e)(1)(B), the FDIC, as receiver, is provided

discretion to “disaffirm or repudiate any . . . lease . . . which . . . [it] determines to

be burdensome.” On March 23, 2009, the FDIC provided Interface written notice

that it elected to exercise this statutory right and disaffirm the Lease.

       Thereafter, neither the FDIC nor JPMorgan made any payments under the

Lease. Thus, on December 23, 2009, Interface provided JPMorgan with a default

notice. JPMorgan did not cure this alleged default, resulting in Interface filing this

lawsuit against JPMorgan in the Southern District of Florida asserting one count of

breach/repudiation and/or abandonment of the Lease. The FDIC intervened and

asserted both a counterclaim and cross-claim for declaratory relief. Specifically,

the FDIC sought a declaration that (1) the FDIC did not sell, transfer or assign the

Lease to JPMorgan, (2) the FDIC timely repudiated the Lease, and (3) Interface

failed to file a timely claim with the FDIC and is not entitled to damages.

Subsequently, Interface, JPMorgan, and the FDIC all filed cross-motions for

summary judgment.

       Initially, the district court granted JPMorgan’s motion for summary

judgment, denied Interface’s motion for summary judgment, and instructed the

FDIC to notify the court within three days as to whether any issues remained to be

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litigated regarding its counterclaim and cross-claim. The district court reasoned in

its initial order that to assert a breach of lease claim against JPMorgan, Interface

must establish the existence of an enforceable contract between Interface and

JPMorgan. Further, because Interface and JPMorgan did not enter a contract with

each other, the only way that Interface could establish the right to bring suit for

breach of lease was through the P & A Agreement. The district court determined,

however, that Interface could not enforce the P & A Agreement because it is

neither a party to nor an intended third-party beneficiary of the P & A Agreement.

      Interface appealed the initial district court order. This court dismissed

Interface’s appeal sua sponte, however, because the order did not dispose of all

claims against all parties. Following dismissal of the premature appeal, the district

court issued a second order pertaining to the FDIC’s request for declaratory relief

and Interface’s post-summary judgment motions for a new trial and

reconsideration. In its second order, the district court denied both of Interface’s

post-summary judgment motions and granted declaratory relief to the FDIC. This

timely appeal followed.

      Interface contends that the district court erred and that it has standing to

maintain the current action because (1) it is an intended third-party beneficiary to




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the P & A Agreement and (2) it is in privity of estate with JPMorgan. Interface

also argues that the district court erred in granting declaratory relief to the FDIC.

                                          II.

      We review standing determinations de novo. Elend v. Basham, 471 F.3d

1199, 1204 (11th Cir. 2006). “We review a summary judgment ruling de novo,

viewing the materials presented and drawing all factual inferences in a light most

favorable to the non-moving party.” Bochese v. Town of Ponce Inlet, 405 F.3d

964, 975 (11th Cir. 2005).

                                          III.

      A. Interface’s Standing to Sue

      The district court granted JPMorgan’s summary judgment motion on the

grounds that Interface is not an intended third-party beneficiary to the P & A

Agreement under Florida law. We hold that Interface cannot enforce the P & A

Agreement under federal common law because it is not an intended third-party

beneficiary of that contract. Consequently, the district court lacked subject matter

jurisdiction over Interface’s claim against JPMorgan, and the judgment of the

district court is vacated. See Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d

1229, 1240 (11th Cir. 2003) (“[A]lthough we agree with the [district] court’s

conclusions regarding justiciability of these claims, . . . we vacate its order of

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summary judgment and remand to the district court with instructions to dismiss

these claims pursuant to Fed. R. Civ. P. 12(h)(3).”).

             1. Applicable Law

      The district court applied Florida law in determining that Interface is not an

intended third-party beneficiary to the P & A Agreement because “[t]he question

of whether, for standing purposes, a non-party to a contract has a legally

enforceable right is a matter of state law.” AT&T Mobility, LLC v. Nat’l Ass’n for

Stock Car Auto Racing, Inc., 494 F.3d 1356, 1360 (11th Cir. 2007). While this is

true, the P & A Agreement includes a choice-of-law provision which provides that

federal law controls:

      13.4 Governing Law. This agreement and the rights and obligations
      hereunder shall be governed by and construed in accordance with the
      federal law of the United States of America, and in the absence of
      controlling federal law, in accordance with the laws of the state in
      which the main office of the failed bank is located.

[R. 37-3 at 35.]

      In diversity cases, the choice-of-law rules of the forum state determine what

law governs, American Family Life Assurance Co. of Columbus, Georgia. v.

United States Fire Co., 885 F.2d 826, 830 (11th Cir. 1989), and under Florida law,

courts “enforce choice-of-law provisions unless the law of the chosen forum

contravenes strong public policy.” Maxcess, Inc. v. Lucent Technologies, Inc., 433

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F.3d 1337, 1341 (11th Cir. 2005) (per curiam) (internal citations and quotations

omitted). The parties have not offered any reason why the choice-of-law provision

above contravenes strong public policy, and the court is aware of no such reason.

Accordingly, federal law applies in determining whether Interface is an intended

third-party beneficiary to the P & A Agreement.

             2. Interface is not an intended third-party beneficiary to the P & A

                Agreement

      To assert a breach of lease claim against JPMorgan, Interface must establish

the existence of a contract between itself and JPMorgan. Interface seeks to do so

by enforcing its interpretation of the P & A Agreement entered between FDIC and

JPMorgan. That is, Interface argues that under the P & A Agreement, JPMorgan

now stands in the shoes of the FDIC who took over as lessee from WaMu when it

failed. JPMorgan and the FDIC contend that Interface lacks standing to do so.

      “[S]tanding is a threshold jurisdictional question which must be addressed

prior to and independent of the merits of a party’s claims.” Bochese, 405 F.3d at

974 (quoting Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 1275 (11th Cir.

2000)). “In essence the question of standing is whether the litigant is entitled to

have the court decide the merits of the dispute or of particular issues.” Koziara v.

City of Casselberry, 392 F.3d 1302, 1304 (11th Cir. 2004) (quoting Warth v.

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Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205 (1975)). Interface can only

establish standing if it is an intended third-party beneficiary of the P & A

Agreement. See Bochese, 405 F.3d at 981; see also Kremen v. Cohen, 337 F.3d

1024, 1029 (9th Cir. 2003) (applying federal common law in finding that “[a] party

can enforce a third-party contract only if it reflects an express or implied intention

of the parties to the contract to benefit the third party” (internal quotation marks

omitted)).

       Under federal common law, the court looks to general contract principles in

interpreting the P & A Agreement. Ellinger v. United States, 470 F.3d 1325, 1336

(11th Cir. 2006); see also Belize Telecom, Ltd. v. Gov’t of Belize, 528 F.3d 1298,

1307 n.11 (11th Cir. 2008) (“When interpreting contracts under federal law, courts

look to general common law on contracts.”). One such principle is that only a

party to a contract or an intended third-party beneficiary may sue to enforce the

terms of a contract. GECCMC, 2005-C1 Plummer St. Office L.P. v. JPMorgan

Chase Bank, N.A., 671 F.3d 1027, 1032-33 (9th Cir. 2012) (applying federal

common law); RESTATEMENT (SECOND) OF CONTRACTS § 304 (1981). In contrast,

a beneficiary whose benefit is merely incidental has no right to sue to enforce a

contract as a non-party. GECCMC, 671 F.3d at 1033; see also RESTATEMENT




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(SECOND) OF CONTRACTS § 315 (noting that an incidental beneficiary acquires “no

right against the promisor or the promisee”).

      Further, government contracts, such as the P & A Agreement, “often benefit

the public, but individual members of the public are treated as incidental

beneficiaries unless a different intention is manifested.” RESTATEMENT (SECOND)

OF CONTRACTS    § 313(2) cmt. a. Thus, third parties to government contracts “are

generally assumed to be incidental beneficiaries.” Klamath Water Users

Protective Ass’n v. Patterson, 204 F.3d 1206, 1211 (9th Cir. 1999). To overcome

this presumption, Interface must show that the parties “clear[ly] inten[ded]” that

Interface be permitted to sue to enforce the P & A Agreement. Beckett v. Air Line

Pilots Ass’n, 995 F.2d 280, 288 (D.C. Cir. 1993). Although Interface “need not be

specifically or individually identified in the contract, [Interface] must fall within a

class clearly intended to be benefited thereby.” Montana v. United States, 124

F.3d 1269, 1273 (Fed. Cir. 1997).

      Interface’s task of demonstrating “clear intent” is made significantly more

difficult by the P & A Agreement’s express disclaimer to the contrary. As

referenced above, section 13.5 of the P & A Agreement expressly disclaims any

intent to create third-party beneficiaries. To overcome this disclaimer, Interface

points out that section 13.5 also states that this disclaimer is limited “as otherwise

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specifically provided in this Agreement.” Interface argues that this disclaimer

limitation, when read together with language from section 2.1, which provides that

“[JPMorgan] agrees to pay, perform, and discharge, all of the liabilities of [WaMu]

as of Bank Closing,” creates a clear intention to benefit a landlord such as

Interface.

      In an almost identical case, GECCMC, 2005-C1 Plummer Street Office L.P.

v. JPMorgan Chase Bank, N.A., the Ninth Circuit Court of Appeals rejected the

same argument that Interface asserts here, concluding that the P & A Agreement

did not “reflect a ‘clear intent’ to confer a benefit on [the landlord.]” 671 F.3d at

1034. More specifically, the court found that the landlord’s “reliance on section

2.1 . . . does not evince the specificity required to carve out enforceable rights as

contemplated by section 13.5,” nor does section 2.1 “show the ‘clear intent’ needed

to rebut the presumption that [the landlord] is merely an incidental beneficiary.”

Id. at 1035; see also Wichita Falls Office Assocs. v. Banc One Corp., No. 3:90-CV-

1301-H, Mem. Op. at 19 (N.D. Tex. Nov. 22, 1993), aff’d without opinion, 40 F.3d

384 (5th Cir. 1994) (finding that the phrase “except as otherwise specifically

provided” did not reference other sections of a P & A Agreement in a clear enough

manner to overcome the presumption against intended third-party beneficiaries).

We agree with this reasoning and find that the P & A Agreement does not provide

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a “clear intent” to benefit Interface. Thus, we conclude that Interface is not an

intended third-party beneficiary to the P & A Agreement and cannot sue to enforce

it.

             3. Privity of Estate

      Interface also argues that it has standing to sue JPMorgan for breach of lease

because the two are in privity of estate. This argument fails because it is

dependent on Interface’s ability to enforce its interpretation of the P & A

Agreement, which, as discussed above, Interface lacks standing to do.

      B. FDIC’s Declaratory Relief

      The district court declared that the FDIC owed no damages to Interface

based on any potential claim Interface had against the FDIC. This determination

was erroneous. The district court did not have the authority to grant declaratory

relief because Interface had yet to submit a claim against the FDIC through the

FIRREA administrative claims process. Except as otherwise provided in FIRREA,

“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. . . or (ii)

any claim relating to any act or omission of such institution or the [FDIC.]” 12




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U.S.C. § 1821(d)(13)(D)(i)-(ii); 2 see also Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa. v. City Sav., F.S.B., 28 F.3d 376, 385 (3d Cir. 1994) (finding that the plain

meaning of § 1821(d)(13)(D)(i) includes declaratory judgment actions).

        While FIRREA does not provide “an explicit mandate for exhaustion of

administrative remedies[,] [its] provisions are accepted by the cases and by

Congress as having that meaning.” F.D.I.C. v. Lacentra Trucking, Inc., 157 F.3d

1292, 1294 (11th Cir. 1998). Thus, for post-receivership claims—such as

Interface’s potential claim against the FDIC—the court has “no subject matter

jurisdiction unless the claimant has exhausted the administrative remedies.”

Damiano v. F.D.I.C., 104 F.3d 328, 333 (11th Cir. 1997); see also Aguilar v.

F.D.I.C., 63 F.3d 1059, 1061 (11th Cir. 1995) (per curiam) (noting that “[u]nder

FIRREA, federal courts generally lack the authority to decide claims against an

institution in federal receivership until the claimant has exhausted his

administrative remedies against the FDIC”). Because “FIRREA contains no

provision granting federal jurisdiction to claims filed after a receiver is appointed

but before administrative exhaustion,” Meliezer v. Resolution Trust Co., 952 F.2d

879, 882 (5th Cir. 1992), and because it is undisputed that Interface has not

submitted a claim against the FDIC through the FIRREA administrative claims
       2
          See 12 U.S.C. § 1821(d)(6) (providing for the option of filing suit after the FDIC’s
initial determination to allow or disallow a claim in one of two specified federal courts); id.
§ 1821(d)(7)(A) (providing for judicial review of the FDIC’s final administrative determination).
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process, the district court lacked jurisdiction to declare that Interface is not entitled

to damages from the FDIC. Accordingly, this portion of the district court’s

judgment is also vacated.

                                           IV.

      For the foregoing reasons, we conclude that Interface is not an intended

third-party beneficiary of the P & A Agreement executed between FDIC and

JPMorgan, and, as a result, Interface lacks standing to enforce its interpretation of

that agreement. We also conclude that the district court lacked jurisdiction to

award declaratory relief to the FDIC. Consequently, upon remand, the district

court should dismiss this action for lack of subject matter jurisdiction.

      VACATED and REMANDED.




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