Rudolph v. Federal Emergency Management Agency

Filing 14

ORDER & REASONS denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 1/27/2014. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD RUDOLPH

CIVIL ACTION

v.

13-6255

FEDERAL EMERGENCY MANAGEMENT AGENCY

SECTION "F"

ORDER AND REASONS
Before the Court is The Federal Emergency Management Agency's
motion to dismiss for failure to state a claim or, alternatively,
for summary judgment.

For the reasons that follow, the motion is

DENIED.
Background
Donald Rudolph purchased a Standard Flood Insurance Policy for
his home issued directly through FEMA pursuant to the National
Flood Insurance Program. The policy provided building and contents
coverage for Rudolph's home in LaPlace, Louisiana, and was in
effect at the time of Hurricane Isaac.
After Hurricane Isaac, Rudolph notified FEMA of his losses,
and FEMA sent an "independent adjuster" to Rudolph's home to survey
the damage.

After completing his inspection, the independent

adjuster submitted a final report estimating Rudolph's losses at
$58,252.93.

He also sent Rudolph two proofs of loss for that

amount, with instructions to sign and return the forms in order to
file a claim.
Rudolph did not sign and return those forms, but instead hired
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a "public adjuster" to assist him in filing his claim.

In October

2012, the public adjuster sent the independent adjuster a signed,
sworn

to

proof

of

loss,

$161,668.95 in damages.

indicating

that

Rudolph

sustained

FEMA contends that this proof of loss was

just a single page document that did not contain any photographs,
estimates, invoices, or other supporting documentation.

Rudolph,

however, maintains that he, through his public adjuster, sent not
just the proof of loss form but also a letter detailing the damages
to his house and justifying the amount claimed, and a detailed,
itemized estimate of his property and contents damages.
Ultimately, FEMA rejected Rudolph's proof of loss and accepted
the independent adjuster's estimate. FEMA sent a letter to Rudolph
explaining that "there were no documents to support [the public
adjuster's] amount," but that independent adjuster's amount was
"backed by itemized estimates of covered flood damage." The letter
also informed Rudolph that if he disagreed with FEMA's decision, he
could sue.

So he did.

In October 2013, Rudolph filed suit against FEMA for breach of
contract and for declaratory relief. FEMA now seeks to dismiss for
failure to state a claim or, alternatively, for summary judgment.
I.
A.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state

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a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).

In considering a Rule 12(b)(6)

motion, the Court “accepts ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464 (5th Cir.
2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)). But, in deciding whether dismissal is warranted, the Court
will not accept conclusory allegations in the complaint as true.
Kaiser, 677 F.2d at 1050.

Indeed, the Court must first identify

allegations that are conclusory and, thus, not entitled to the
assumption of truth.
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678-79

A corollary: legal conclusions “must be supported by

factual allegations.” Id. at 678.

Assuming the veracity of the

well-pleaded factual allegations, the Court must then determine
“whether they plausibly give rise to an entitlement to relief.”
Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

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raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678 (“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.”).

This

is

a

“context-specific

task

that

requires the reviewing court to draw on its judicial experience and
common sense.”

Id. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings.”

That is,

any documents attached to or incorporated in the plaintiff’s
complaint that are central to the plaintiff’s claim for relief.

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Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted to

consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.

See United States ex rel. Willard v. Humana

Health Plan of Tex. Inc.,

336 F.3d 375, 379 (5th Cir. 2003).

However, if the Court considers matters outside of the pleadings,
it must convert a motion to dismiss into a motion for summary
judgment.

Burns v. Harris Cnty. Bail Bond Bd., 139 F.3d 513, 517

(5th Cir. 1998).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported

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motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents do not

qualify as competent opposing evidence.

Martin v. John W. Stone

Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in
evaluating the summary judgment motion, the Court must read the
facts

in

the

light

most

favorable

to

the

non-moving

party.

Anderson, 477 U.S. at 255.
II.
The law governing recovery for flood loss under the National
Flood Insurance Program is well-settled: the conditions precedent
to filing suit to recover for flood damage are strictly enforced.
See, e.g., Marseille Homeowners Condominium Ass., Inc. v. Fidelity
Nat’l Ins. Co., 542 F.3d 1053 (5th Cir. 2008); Wright v. Allstate
Ins. Co., 415 F.3d 384, 387-88 (5th Cir. 2005); Gowland v. Aetna,
143 F.3d 951, 954 (5th Cir. 1998); Forman v. FEMA, 138 F.3d 543,

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545-46 (5th Cir. 1998).
“A NFIP participant [like the plaintiff] cannot file a lawsuit
seeking

further

participant

federal

can

requirements.”

show

benefits
prior

under

the

compliance

SFIP
with

unless
all

the

policy

Richardson v. Am. Baners. Ins. Co. of Fla., 279

Fed. Appx. 295, 298 (5th Cir. 2008) (citing 44 C.F.R. pt. 61, app.
A(1) art. VII(R)).

“In case of a flood loss to insured property,

[the insured] must” satisfy several requirements before bringing a
lawsuit.

44 C.F.R. pt. 61, app. A(1) art. VII(J).

Foremost, the

insured must provide a signed and sworn Proof of Loss within 60
days after the loss, “or within any extension authorized by FEMA.”
Forman v. FEMA, 138 F.3d at 545.

The failure to submit a complete,

sworn proof of loss with supporting documentation is fatal to a
plaintiff’s claim for flood damage. See Marseilles Homeowners, 542
F.3d at 1053.
Between October 23, 2012 and March 19, 2013, the Acting
Federal Insurance Administrator issued several written orders
extending the proof of loss submission deadline for Hurricane Isaac
related claims, resulting in the deadline being extended from 60
days to 240 days.

These extensions meant that plaintiff had until

April 28, 2013 to submit his completed proof of loss.
FEMA insists that plaintiff never submitted a timely proof of
loss with supporting documentation, even in accordance with the
extended deadlines. Plaintiff counters that he did submit a timely

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proof of loss, along with multiple supporting documents including
a letter describing his losses in detail and an itemized estimate
of his damages. In support of his contention, plaintiff includes a
declaration from his public adjuster affirming that he timely
submitted the proof of loss form with supporting documentation.
Plaintiff also produces copies of the proof of loss form, the
letter, and the itemized estimate.

The Court is persuaded that a

material factual dispute exists regarding whether plaintiff timely
submitted a sworn proof of loss with supporting documentation. The
record precludes summary judgment.
Accordingly, defendant's motion to dismiss or, alternatively,
for summary judgment is DENIED.
New Orleans, Louisiana, January 27, 2014
____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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