OPINION AND ORDER GRANTING DEFENDANTS MOTION TO DISMISS (Dkt. 15)
I. INTRODUCTION
This matter is before the Court on Defendants’ motion to dismiss or, in the alternative, to transfer this case to the U.S. District Court for the District of Columbia (Dkt. 15). For the reasons explained fully below, the Court grants Defendants’ motion to dismiss, because Plaintiff Quicken Loans Inc. has failed to state a claim either under the Administrative Procedures Act or the Constitution. With no remaining independent basis to exercise jurisdiction, the Court, in its discretion, further declines to entertain Quicken’s count for declaratory relief.
II. BACKGROUND
The Federal Housing Administration (“FHA”) is an entity within the United States Department of Housing and Urban Development (“HUD”), which insures mortgages and administers several mortgage default insurance programs, Compl. ¶¶ 3, 30, 43 (Dkt. 1); W. & S. Life Ins. Co. v. Smith,
One of the programs through which FHA insures home mortgages is the Direct Endorsement Lender (“DEL”) program'. Through the DEL program, the FHA authorizes certain lenders to evaluate the credit risk of potential borrowers, underwrite mortgage loans, and ■ certify those loans for FHA mortgage insurance without prior HUD review, or approval. See 12 U.S.C. § 1715z~21; Compl..¶¶ 44, 47. In underwriting the mortgage loan, the lender must determine-whether-both the borrower and the mortgage loan meet
To monitor a lender’s compliance with program requirements, the Secretary of HUD “may review all documents” required for a mortgage’s insurance endorsement under the DEL program. 24 C.F.R. § 203.255(e). Quicken refers to this review as the Post-Endorsement Technical Review (“PETR”). Compl. ¶ 48. If this after-the-fact review reveals that the mortgage does not satisfy the requirements of the DEL program, “the Secretary may place the mortgagee on Direct Endorsement probation, or terminate the authority of the mortgagee to participate in the [DEL] program pursuant to § 203.3(d), or refer the matter to the Mortgagee Review Board for action pursuant to part 25 of this title.” 24 C.F.R. § 203.255(e). In addition, by certifying the mortgage for FHA insurance, the mortgage lender agrees to indemnify HUD for claims paid out to the lender in certain circumstances. 24 C.F.R. § 203.255(g)(1).
In April 2012, the Department of Justice (“DOJ”) and the HUD Office of Inspector General (“HUD-OIG”) began investigating Quicken — an FHA-approved lender for nearly 27 years — under the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq. See Compl. ¶¶ 8, 55. The scope of the investigation encompassed approximately 246,000 FHA loans that Quicken had originated from mid-2007 through December 31, 2011, which Quicken collectively refers to' as the “Subject Loans.”’ Id. ,¶¶ 2, 14-15,, 55-56.
As part of the FCA investigation, the DOJ and HUD-OIG assessed a sampling of 116 loans and determined that 55 of those loans did not comply with FHA lending guidelines and 'were improperly underwritten. Id. ¶¶ 6,’15, 18, 73, 77. To determine the magnitude of, FHA violations, the DOJ and HUD-OIG extrapolated those “supposed defects on the same percentage basis across the entire loan population” — a methodology that Quicken calls “Conjectural Extrapolation Sampling.” Id. ¶¶ 15, 73. ' ■
Quicken states that, the DOJ and HUD-OIG’s use of a sampling and extrapolation methodology constituted a “retroactive change of process for evaluating loans,” as “HUD’s practice for evaluating loan quality ha[d] long'been to assess on an individual basis whether a loan was properly underwritten-or in compliance with program rules.” Id. ¶ 13; see also id. ¶.20 (stating that HUD has a “long-standing approach of evaluating loan compliance on an individualized basis”). Quicken refers to this alleged prior practice as. the “Loan-Level Mandate.” Id. ¶¶ 59, 61. According to Quicken, under the Loan-Level Mandate regime, HUD would review loans on an individualized basis and, if HUD determined that a loan was improperly originated, it would notify the lender of its finding and allow the lender to file a response. If the parties were unable to resolve the problém, HUD would then seek indemnification for its actual losses. Id. ¶¶ 13, 20, 49. In a letter datéd June 24, 2013, HUD informed Quicken that, because of the DOJ and HUD-OIG’s investigation, HUD
In an effort to resolve the alleged FCÁ violations, the DOJ and HUD-OIG’s settlement demands sought both a financial penalty and a public statement of wrongdoing from Quicken. Id. ¶ 19. At the same time, Quicken was aware that the filing of an FCA enforcement, action was likely if the parties were unable to reach a resolution. See id. ¶¶ 6,23, 75.
Because the parties failed to reach a settlement, and “in the face, of the DOJ and HUD-OIG’s repeated threats” of an FCA action, Quicken claims that it-“had no other option than to file this lawsuit” challenging “HUD’s abandonment of its normal and well-established processes.” Id. ¶¶ 12, 23. In its complaint, Quicken asserts claims under the Administrative Procedures-Act (“APA”), 5 U.S.C. § 551 et seq., and the Due Process Clause of the' Fifth Amendment; it also seeks declaratory and injunctive relief regarding its contention that it has not breached its contracts with HUD.
(a) that Defendants cannot determine the . quality and compliance of loans through their newly fabricated Conjectural Extrapolation Sampling rather than through the loan-by-loan approach that was applicable at the time the loans were originated and upon which Quicken Loans relied; and (b) that the loans Quicken Loans made between 2007-2011 in fact were originated properly by Quicken Loans in accordance with the applicable FHA guidelines and program requirements, and pose no undue risk to the FHA insurance fund;
Compl. ¶ 25.
Less than one week after Quicken filed this action, the United States filed an FCA enforcement action in the' U.S. District Court for the District of Columbia, alleging that certain “loans underwritten and approved by Quicken and endorsed for [FHA] insurance between September 1, 2007 and December 31, 2011. .".violated FHA rules,” and that Quicken “falsely certified] compliance with those rules,” in violation of the FCA. United States v. Quicken Loans Inc., No. 15-613, Compl. ¶¶ 1-2 (Dkt. 1) (D.D.C.). Quicken filed a motion to transfer that case to this Court. The District of Columbia district court has not ruled on that motion; instead, it stayed further proceedings in the FCA case, pending a decision of the current motion in the instant case.
III. STANDARD OF DECISION
In evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),- “[c]ourts must construe the complaint in the light most favorable to plaintiff, accept all well-pled factual allegations as true, and determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon,
A. Administrative Procedures Act
In its complaint, Quicken alleges that Defendants violated the APA in several way's. Counts I, II, and III assert that Defendants acted arbitrarily and not in accordance with the law by: (i) retroactively abandoning the Loan-Level Mandate; (ii) using statistical sampling; and (iii) concluding that a substantial fraction of the Subject Loans were “defective.” Compl. ¶¶ 89, 97, 103, 105; PI. Resp. at 27-28 (Dkt. 22).
Review of federal administrative agencies’ conduct is governed by the APA. See Am. Civil Liberties Union v. Nat’l Sec. Agency,
However, the right to judicial review is limited in significant ways. The agency activity for which review is sought must fit within the statutory definition of. “agency action.” 5 U.S.C. § 551(13). Unless a statute expressly provides for judicial review of a particular agency action, the subject action must also be “final,” and one for which there is no adequate remedy in court. Id. § 704; see also Bennett v. Spear,
The Court must first identify the specific “agency action” Quicken now challenges. Quicken’s complaint is replete with broad and conclusory characterizations of agency activities, but short on specificity. For example, the complaint challenges Defendants’ “conduct” in abandoning the Loan-Level Mandate, Compl. ¶ 92, their “conclusion” that a-significant number of loans were non-compliant, id. 11 94, their “adoption”, of the sampling technique, id; ¶ 98, and their “application” of the technique to a set of loans, id. ¶ 105. But these opaque terms do not meet the statutory definition of “agency action.”
The APA defines “agency action” as “the whole or part-of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The statute further defines these specific categories of agency action in a way that denotes “circumscribed, discrete agency actions.” Norton,
• Rule — “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy”
• Order — “a final disposition.. .in a . matter other than rule making”
• License — “an agency permit... or other form of permission”
• Sanction — “a prohibition... or taking of other compulsory or restrictive action”
• Relief — “a grant of money, assistance, license, authority,... [or] recognition of a claim, right, immunity,.... or taking of other action on the application or petition of, and beneficial to, a person”
Dismissal under Rule 12(b)(6) is “appropriate where the plaintiffs pleadings fail to identify a discrete, circumscribed agency action subject to review under the APA.” Banner Health v. Sebelius,
Like the “free-floating allegations” in Banner that triggered dismissal of claims “untethered to any discrete agency action,” id. at 110-111, Quicken’s opaque allegations about Defendants’ “conduct,” “conclusions,” ‘.‘adoption,”" or “application” require the same result. None of these gossamer terms has concrete content sufficient to be characterized as a “rule,” “order,” “license,” “sanction,” or “relief.”
Quicken’s complaint does refer to two types of action more, concrete in nature: (i) HUD’s June 24, 2013 letter, stating that it was suspending the PETR process for the Subject Loans, and (ii) the DOJ’s filing of an FCA lawsuit. While these acts may be less nebulous, they still suffer from disabilities that undermine. Quicken’s effort to state an APA claim.
HUD’s June 24, 2013 letter informed Quicken that the “FHA has ceased Post Endorsement Technical Reviews and Quality Assurance Division reviews of self-reported loans endorsed, prior to January 1, 2012.”
Finality under the APA embodies two requirements: (i) “the action must mark the consummation of the agency’s decisionmaking process,” rather than be “merely tentative or interlocutory [in] nature,” and (ii) “the action must be one by which rights or obligations have been determined, or ■ from which legal consequences will flow.” Bennett,
Nonetheless, the second requirement for finality is clearly not met. By announcing a cessation of the manner in which it had reviewed Quicken’s loans for' the stated period, HUD did not make any determination of Quicken’s rights or obligations) “An agency’s determination of ’rights or obligations’ generally stems from an agency action that is directly binding on the party seeking review, such. as. an administrative adjudication (like a recall proceeding) or legislative rulemaking.” Air Brake Sys., Inc. v. Mineta,
For the samé reason, the HUD' announcement created no legal consequence for Quicken. See Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin.,
Although not specifically alleged, the implicit contention in the complaint is that the letter was issued - contemporaneously with the. Defendants’. alleged decision; to “use” sampling.. See Compl. ¶ 73. However, nothing in- the letter addresses sampling. Nor does it discuss how HUD proposes to conduct loan reviews,, either as to, previously issued loans or future ones. Thus, the letter cannot .constitute “final agency action” with regard to sampling.
To the extent Quicken is arguing that the “use” of sampling is itself agency
The complaint also suggests, but does not specifically allege, that sampling is somehow connected to Defendants’ alleged demands for payment by Quicken of a “large financial penalty as supposed reimbursement for losses that did not occur,” Compl. ¶ 75, and that sampling is somehow linked to the FCA action that was ultimately filed. Id. But neither a settlement demand, nor the filing of an enforcement action, constitutes final agency action. New Jersey Hosp. Ass’n v. United States,
In its written response to the motion, Quicken claims it was not seeking to challenge the FCA action. And at the. hearing, Quicken tried to clarify that it was seeking only to compel resumption of the manner in which HUD had administered the loan program. But even this refinement of the complaint’s theories does not save Quicken’s APA claims. For the reasons stated above, HUD’s decision about how to monitor its potential mortgage exposure— through its selection of mortgages to review or the methods selected- for quantifying possible loss — is hardly final agency action; such action results in no final determinations or legal obligations for Quicken. In addition, as explained below, the administration of the loan program is confined to HUD’s discretion, which exempts it from the APA.
Judicial review is unavailable where the “agency action is committed to agency discretion by. law.” 5 U.S.C. § 701(a)(2); see also Norton,
HUD’s monitoring of its FHA program is of a similar discretionary nature. The regulations make it clear that it
Finally, no matter what theory Quicken serves up to justify judicial review, its APA claims are doomed by the principle that relief under the APA is only available if the plaintiff has no adequate remedy at law. 5 U.S.C. § 704; accord Bennett, 520 U.S, at 175,
Here, the FCA action provides an adequate remedy. As stressed above, none of Defendants’ alleged actions can possibly cause any binding legal'consequence for
Accordingly, Quicken has failed to allege plausible claims for relief under the APA, and the Court dismisses those 'claims pursuant to Rule 12(b)(6).
B. Procedural Due Process
The Due Process Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person shall.. .be deprived of life, liberty, or property, without due process of law[.]” U.S. Const, amend. V. Procedural due process requires that the Government’s deprivation “be implemented in a fair manner,” United States v. Salerno,
Quicken’s procedural due process claim is premised .on Defendants’ use of a sampling and.extrapolation methodology in determining the amount and/or percentage of the Subject Loans that were noncompli-
Assuming without deciding that 'Quicken has a cognizable property interest, Quicken’s procedural due process claim fails, because Quicken makes no plausible allegations in its complaint to support, the contention that it has been deprived of that interest. There are no allegations in the complaint that HUD is no longer insuring FHA loans or has threatened that future loans will not be insured. There are no allegations that HUD has denied any claim for insurance relative to the Subject Loans. Thus, there are no plausible allegations that Quicken has been deprived of its interest in insurance coverage.
Quicken’s other deprivation theory is similarly flawed. It claims, in its briefing, that, “to the extent HUD uses sampling and extrapolation in the FHA program... to require Quicken Loans to pay money, to HUD to indemnify HUD for any supposed losses on previously-insured loans, that would deprive Quicken Loans of its property interest in that money.” PI. Resp. at 34 n.28.
However, there is no allegation that HUD or any other Defendant has actually deprived . Quicken of any money. There may have been settlement demands, and there certainly now exists a formal legal demand in the form of an enforcement action. But these actions, qmount merely to internal agency acts from which no legal consequence flows at this time. Unless-and until there is a legally significant consequence from an action, there can be no due-process deprivation premised on that action. See, e.g., Indus. Safety Equip. Ass’n v. Envtl. Prot. Agency,
' Unquestionably, the mere filing of a lawsuit does not amount to the deprivation of a property interest. See, e,g., City of Charleston, S.C. v. Hotels.com, LP,
Therefore, whatever may be Defendants’ alleged use of sampling and extrapolation, it is not a procedural due process violation. Quicken has not yet been deprived of any property interest, and it will have the opportunity to be heard at a meaningful time
Because Quicken has failed to state a plausible procedural due-process claim, that claim is dismissed- pursuant to Rule 12(b)(6).
C. Declaratory Judgment and Injunc-tive Relief for Non-Breach of Contract
■ Lastly^ Quicken’s complaint seeks a declaration that (i) “Defendants cannot use any sampling to determine whether any.. .of the Subject Loans were properly underwritten and originated in compliance with FHA program requirements,” and (ii) Quicken did mot breach any individual insurance contract with HUD because “each Subject Loan was properly underwritten and originated by Quicken Loans in compliance with FHA program requirements.” Compl. at 43 (prayer for relief); see id. ¶¶ 108,. 109.
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction... any court of the United States, upon the filing of'an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.G. § 2201. However, the Court must have'“an independent basis for federal subject matter jurisdiction,” as the Act only provides courts with the discretion to fashion a remedy. Heydon v. MediaOne of Se. Mich., Inc.,
The exercise of jurisdiction in a declaratory judgment action is consigned to the court’s substantial discretion. Wilton v. Seven Falls Co.,
(1) Whether the declaratory action would settle the controversy; .
(2) Whether .the declaratory action would serve a useful purpose in clarifying the legal relations in issue;
(3) Whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an. arena for res judicata;”
(4) Whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction;9 and
(5) Whether there is an alternative remedy which is better or more effective.
Scottsdale Ins. Co. v. Flowers,
The first and second factors — theoretically — 'weigh in favor of the court exercising jurisdiction over Quicken’s non-breach claim. To the extent that Quicken seeks a declaratory judgment that it properly underwrote all of the Subject Loans and, therefore, did not breach its contracts with HUD, such a declaration Could conceivably settle the only legally cognizable controversy between the parties. If the
There is a far superior alternative remedy — the FCA action — which must be considered under the fifth factor of the analysis. Reviewing 'nearly a quarter of a million loans would be a staggering waste of judicial resources. Such a massive review would also require this Court to give an advisory opinion regarding loans for which there 'is no actual case or .controversy, given that the Government is not contending that all the loans are deficient. See, e.g., Coffman v. Breeze Corp.,
By contrast, the FCA action presents itself as the appropriate litigation vehicle to resolve the dispute between the parties, because it is the legal action in which the Government has or will set out those specific loans that the Government is challenging as non-compliant. In fact, the FCA creates the precise procedure Quicken has acknowledged would be appropriate for resolving the issue whether it has breached any of its contracts with HUD.
-In light of the FCA action addressing the precise issue of the quality of any specific Subject Loan, a declaration of rights in this action would be essentially redundant. -The enforcement action will also allow the parties to address the DOJ’s use of sampling for FCA violations, assuming it intends to use sampling for purposes of establishing either liability or damages. The FCA action is, therefore, the preferable arena for the resolution of any legally cognizable, controversy between the parties. AmSouth Bank v. Dale,
Quicken claims that this case is different from the FCA action, because it “does not seek a declaration of non-liability under the FCA.” PI. Resp. at 14. This assertion is disingenuous. The bedrock of the Government’s FCA action concerns Quicken falsely certifying compliance with FHA rules when it came to Subject Loans, which, in turn, violated the FCA. See United States v. Quicken Loans Inc., No. 15-613, Compl. ¶¶ 1-2 (Dkt. 1) (D.D.C.). In order to succeed in that case, the Government will first have to show which of the Subject Loans violated FHA requirements. That is the same issue Quicken asks to be resolved in this action. The redundancy is both obvious and needless.
Weighing all the factors, the Court declines to exercise jurisdiction over Quicken’s Request for declaratory judgment for non-breach of contract.
In its briefing and at the hearing, Quicken contends that its non-breach-of-contract claim is actually a breach-of-contract claim. Pl. Resp. at 9, 16-17; 9/3/2015 Hr’g Tr. at 65-68 (Dkt. 27); see also Pl. Mot. to File Sur-Reply at, 3 (Dkt. 25). Defendants argue that Quicken cannot rework its non-breach claim into “a claim of HUD’s alleged breach.” Defs. Reply at 12- (Dkt. 24); Because there are no “magic words” a plaintiff must use to state a claim, the Court must, instead, “examine the substance of a plaintiff’s allegations” in the complaint. Stevens v. Saint Elizabeth Med. Ctr., Inc.,
Although count IV in Quicken’s complaint does state that Defendants were “acting in a manner inconsistent with the terms of those contracts,” Compl. ¶ 107, there is no allegation that .any Defendant has breached a contract. Nor would a breach claim even be remotely plausible against most of the Defendants — i.e., HUD-OIG, the Inspector General of HUD-OIG, the DOJ, and the Attorney General—
V. CONCLUSION
For the reasons stated above, the Court grants Defendants’ motion to dismiss (Dkt. 15), and denies Defendants’ alternative request to transfer the case as moot. The case is dismissed with prejudice, and judgment will be separately entered.
SO ORDERED.
Attachment
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Notes
. .Because the Court grants Defendants’ motion to dismiss, Defendants’ alternative request to transfer this case to the U!S,- District Court for the District of Columbians moot. Quicken’s motion for leave to file a sur-reply (Dkt. 25) is denied, because the Court concludes that additional .briefing would not aid in the decisio,nal process;
. In particular, the mortgage lender agrees to indemnify HUD for: (i) "an FHÁ insurance claim paid within 5 years of mortgage insurance endorsement, if the mortgagee knew or should have known of a serious and material violation of FHA origination requirements;” or (ii) "if the mortgagee knew or should have known that fraud or misrepresentation was involved in connection with the origination of the.mortgage.. .regardless of when an insurance claim is filed.” 24 . C.R.F. § 203.255(g)(3) — (4). . , .
. Quicken named as Defendants the United States of America, HUD, the Secretary of HUD, HUD-OIG, the Inspector General of HUD-OIG, the DOJ, and the Attorney General.
, The letter — sent by the Deputy Assistant Secretary for Single Family Housing to Quicken’s president —was not attached to the complaint. However, at the Court’s request during the motion hearing, the parties provided the Court with a copy of this letter, with the stipulation that it could be considered by the Court without converting the motion into one for summary judgment. See Fed. R, Civ.. P. 12(d). The letter states, in pertinent part: As you know, the Department of Housing and Urban Development (HUD), HUD Office of Inspector General, and the Department of Justice, Civil Division, is [sic] jointly investigating Quicken Loans, Inc.’s origination and underwriting of FHA-insured loans. As a result of this investigation, please be advised that FHA has ceased Post Endorsement Technical Reviews and Quality Assurance Division reviews of self-reported loans endorsed prior to January 1, 2012.’ FHA'will not respond to reports or inquiries concerning these loans until further notice. This change is, effective immediately.
Quicken Loans, Inc. remains responsible for complying with HUD’s requirements that lenders report to HUD any incidents they discover of fraud, illegal acts, irregularities, unethical practices or serious violations.
See Addendum.
. The cases cited by Quicken on finality, PI. Resp. at 29 n.22, do not counsel a different result, because in each case there was some concrete legal consequence to the agency action. See City of Dania Beach v. F.A.A.,
. Although its prayer for relief asks the Court to issue an injunction prohibiting Defendants from "initiating or pursuing any suit or other proceeding based on or using such any [sic] sampling, including without limitation any . suit under the False Claims Act,” Compl. at 43, Quicken has abandoned that request, stating that it "does not seek to prevent the government from suing under the FCA,... and it does not seek to bar the government from exercising its prosecutorial discretion.” PI. Resp. at 13 (emphasis omitted).
. Quicken offers a related theory that HUD has "abdicated” its role in administering the FHA program to DOJ and HUD-OIG. But this suffers from the same disabilities of Quicken’s other theories. The vagueness of the térm “abdication” fatally undercuts any contention of "discrete, circumscribed” agency action. It is also unaccompanied by any plausible allegation of a binding determination or legal obligation, the necessary prerequisites for final agency action. - Finally, HUD’s apparent decision to suspend PETR while the FCA investigation proceeded — the apparent "abdication” Quicken alleges — is the kind of discretionary agency judgment that involves a "complicated balancing of a number of factors which- are peculiarly'within its expertise.” People for the Ethical Treatment of Animals, Inc.,
. See also Ass'n of Am. Med. Colls. v. United States,
. Because there is no related action pending in a state court, the fourth factor is' not relevant.
. Quicken’s complaint had sought a declaration that all of its loans were compliant. See Compl. ¶ 27 ( "[T]he Court should declare that the FHA loans that Quicken Loans made from 2007-2011 were originated by Quicken Loans properly and in compliance with all requirements, and do not pose an undue risk to the FHA insurance fund.”); see also id. at 43 (prayer for relief) (seeking "declaratoty judgment that each Subject Loan was properly underwritten and originated by Quicken Loans in compliance with FHA program requirements”). However, in its briefing opposing the motion, Quicken claims that its complaint does not require the Court to undertake an individual review-of nearly 250,000 loans; rather, it claims that it is seeking a "declaratory judgment that any specific loans that Defendants identify through the Loan-Level Mandate as uninsurable did in fact comply with FHA program requirements.” PI. Resp. at 21. Putting aside the revisionist characterization of its complaint, the new position Quicken staked out in the briefing supports the conclusion that the FCA is a superior vehicle for resolving the controversy, because the Government will identify, in that action, the loans claimed to be non-compliant.
. Quicken also claims its request for an injunction mqans the Court must retain jurisdiction over the entirety of the complaint. PI. Resp. at 19. Quicken relies on Adrian Energy Associates v. Michigan Public Service Commission,
. Defendants also argue that, under Federal Rule of Civil Procedure 12(b)(1), the Court should dismiss Quicken's non-breach claim because the Court lacks jurisdiction, Defs. Mot. at 32. More specifically, Defendants contend that the Government has not waived its sovereign immunity. Because the Court declines to exercise its jurisdiction over Quicken’s non-breach claim, this additional argument is moot.
. During the hearing, Quicken’s counsel stated that Quicken "can amend” the complaint to add a breach-of-contract claim if the Court “thinks that [Quicken was] unclear.” 9/3/2015 Hr’g Tr. at 68. This does not amount to a request to amend, as counsel did not state unequivocally that Quicken was seeking leave to amend. Even if he had, the oral request would not have been sufficient under Federal Rule of Civil Procedure 15, because that rule requires the filing of a motion. See Willecke v. Kozel,