Phillips v. Federal Emergency Management Agency

Filing 28

ORDER & REASONS: Defendant's Motion to Dismiss or, alternatively Motion for Summary Judgment (Rec. Doc. 16 ) is GRANTED IN PART, DENIED IN PART and DENIED AS MOOT IN PART. IT IS ORDERED that Plaintiff's claims for declaratory judgment are hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 1/24/14. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

EDWARD PHILLIPS

CIVIL ACTION

VERSUS

NO: 13-5291

FEDERAL EMERGENCY MGMT
AGENCY, ET AL.

SECTION: “J” (1)

ORDER & REASONS
Before the Court is defendant Federal Emergency Management
Agency ("FEMA")'s Motion to Dismiss or, alternatively Motion for
Summary Judgment (Rec Doc. 16), and Plaintiff Edward Phillips'
opposition thereto. (Rec. Doc. 26) The motion is set for hearing on
January 29, 2014, on the briefs. Having considered the motions and
memoranda of counsel, the record, and the applicable law, the Court
finds that FEMA's motion should be granted in part and denied in
part for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
It

undisputed

that

Plaintiff

purchased

a

Dwelling

Form

Standard Flood Insurance Policy ("SFIP") for his home in LaPlace,
Louisiana and that the SFIP was in effect in August 2012 when
Hurricane Isaac made landfall in southeast Louisiana. Further, it
is undisputed that Plaintiff submitted a valid Proof of Loss form
on October 17, 2012, and that FEMA sent Plaintiff a check for the
majority of the losses claimed in the October Proof of Loss.

1

However, Plaintiff alleges that, because he thought the original
adjuster underestimated his losses, he attached an affidavit to the
October Proof of Loss indicating that he disputed several of the
amounts therein. Later, but still within the time for filing a
proof of loss, Plaintiff engaged a public adjuster to inspect his
home and submitted the new estimate to FEMA. After FEMA refused to
consider the new estimate, Plaintiff filed suit in this Court on
August 7, 2013, alleging breach of contract and demanding damages
and

a

declaratory

[Plaintiff's]

judgment

claims

loss

that
and

"FEMA

is

damages,

obligated

less

any

to

pay

applicable

deductible amount." (Rec. Doc. 1) FEMA filed the instant motion on
November 8, 2013.
PARTIES' ARGUMENTS
Defendant

asserts

that

the

Plaintiff's

suit

should

be

dismissed because: (1) Defendant has not waived its sovereign
immunity

to

permit

lawsuits

under

28

U.S.C.

§

1331

or

the

Declaratory Judgment Act, 28 U.S.C. §§ 2201-02; and (2) Plaintiff's
claim for breach of contract is barred because he failed to timely
submit proof of loss to FEMA for the damages that he seeks in the
instant suit. Additionally, FEMA asserts that Plaintiff's jury
demand should be dismissed because he does not have a right to a
jury in this matter and that Plaintiff named the wrong defendant in
this action.
Plaintiff contends that he is entitled to a declaratory

2

judgment because this Court may issue such a judgment in any case
in which they have original jurisdiction. As to his breach of
contract claim, Plaintiff argues that the second estimate was
merely a supplement to the original proof of loss, so a second
proof of loss is not required. Finally, Plaintiff asserts that his
amended complaint remedies any pleading defects that exist.
LEGAL STANDARD & DISCUSSION
A. Defects in the Complaint
In his amended complaint, Plaintiff removed his jury request
and named the proper defendant; therefore, inasmuch as FEMA raises
arguments concerning these defects, the motion is denied as moot.
B. Declaratory Judgment
Plaintiff

seeks

a

declaratory

judgment

that

"FEMA

is

obligated to pay [Plaintiff's] claims loss and damages, less any
applicable deductible amount;" however, Defendant argues that a
declaratory judgment is not an available remedy under the National
Flood Insurance Act. (Rec. Doc. 1, p. 4) In Scritchfield v. Mut. of
Omaha Ins. Co., 341 F. Supp. 2d 675, 682 (E.D. Tex. 2004), the
court, dealing with a nearly identical issue, stated that:
Defendants acknowledge the policy and the breach of
contract claim under 42 U.S.C. § 4072, but obviously
dispute its merits. Even though there is a dispute about
the rights and obligations of the parties under the
contract, that does not automatically ripen into an
affirmative remedy under the Declaratory Judgment Act,
especially if other adequate remedies already exist. 10B
Charles A. Wright Arthur R. Miller & Mary Kay Kane, Fed.
Prac. & Proc. §§ 2751, 2758 (3d ed.1998). Plaintiffs
3

would get nothing from a declaratory judgement [sic] that
they would not get from prevailing on their breach of
contract claims. There is no claim that there is a need
to interpret the contract language because of possible
future events.
Scritchfield, 341 F. Supp. 2d 675, 682 (E.D. Tex. 2004).
In

the

instant

matter,

the

Court

finds

this

reasoning

persuasive; therefore, Defendant's motion is granted inasmuch as
Defendant seeks to dismiss the portions of the claim in which
Plaintiff seeks a declaratory judgment. This, however, is not
grounds to dismiss the entire suit as this Court has exclusive
jurisdiction to hear Plaintiff's breach of contract claim pursuant
to the NFIA. 42 U.S.C. § 4072; Smith v. Nat'l Flood Ins. Program,
796 F.2d 90, 92 (5th Cir. 1986).
C. Proof of Loss
1. Legal Standard
Defendant's argument concerning Plaintiff's failure to timely
submit proof of loss must be treated as a motion for summary
judgment. Berger v. Nat'l Flood Ins. Program, No. 12-2158, 2013 WL
499310,

*3

(E.D.

La.,

Feb.

7,

2013).

Summary

judgment

is

appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to
judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (citing FED. R. CIV. P. 56(c)); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

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When assessing whether

a dispute as to any material fact exists, the Court considers “all
of the evidence in the record but refrains from making credibility
determinations or weighing the evidence.” Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but a party cannot defeat summary judgment with
conclusory allegations or unsubstantiated assertions.
F.3d

at

1075.

A

court

ultimately

must

be

Little, 37

satisfied

that

“a

reasonable jury could not return a verdict for the nonmoving
party.”

Delta, 530 F.3d at 399.

If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party “must come
forward with evidence which would ‘entitle it to a directed verdict
if the evidence went uncontroverted at trial.’”

Int’l Shortstop,

Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991)
(citation omitted). The nonmoving party can then defeat the motion
by either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.”

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the

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nonmoving party’s claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists.

See id. at 324.

The nonmovant may not rest

upon the pleadings, but must identify specific facts that establish
a genuine issue for trial.

See, e.g., id. at 325; Little, 37 F.3d

at 1075.
2. Discussion
The circumstances of the instant case are similar to those in
Copeland v. FEMA, No. 03-2704, 2004 WL 325577 (E.D. La. Feb. 18,
2004) (Barbier, J.). In Copeland, FEMA contested the adequacy of
Plaintiff's proof of loss only because the proof of loss failed to
provide an exact dollar amount of damages claimed. Id. at *2. This
Court denied FEMA's motion for summary judgment, finding that
because "the plaintiff provided at least enough information to FEMA
to

evaluate

the

merits

of

the

claim,"

summary

judgment

was

inappropriate. Id. at *3. Here, it is undisputed that Plaintiff
originally submitted a timely and valid proof of loss and that FEMA
paid certain amounts toward satisfying that claim but has not paid
all monies allegedly due. Plaintiff then submitted a supplemental
proposal for additional amounts due under his claim and has sued to
recover outstanding amounts allegedly due. Plaintiff has submitted
adequate information for FEMA to evaluate the merits of his claims,

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and therefore, summary judgment is inappropriate in this case.1
Accordingly,
Defendant's Motion to Dismiss or, alternatively Motion for
Summary Judgment (Rec. Doc. 16) is GRANTED IN PART, DENIED IN PART
and DENIED AS MOOT IN PART.
IT IS ORDERED that Plaintiff's claims for declaratory judgment
are hereby DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 24th day of January, 2014.

_____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

1

See also Reichert v. Fidelity National Property, No. 06-5448, 2007 WL
763706 (E.D. La. Mar. 8, 2007) (Zainey, J.) (finding that where the insurance
company challenged the validity of the plaintiffs' proof of loss but had already
paid some of the money owed on the claim, it was clear that the plaintiffs
submitted sufficient information for the insurance company to evaluate the
claim).

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