Gloston v. Department of Homeland Security et al
Filing
23
ORDER & REASONS granting 14 Motion for partial dismissal. Signed by Judge Martin L.C. Feldman on 4/25/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PEARL GLOSTON
CIVIL ACTION
v.
13-6471
DEPARTMENT OF HOMELAND SECURITY,
ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is defendants' motion for partial dismissal.
For the reasons that follow, the motion is GRANTED.
Background
Pearl Gloston directly purchased through FEMA pursuant to the
National Flood Insurance Program two Standard Flood Insurance
Policies for her properties located at 812 and 816 Revere Drive,
LaPlace, Louisiana.
The policies were in effect on August 28,
2012, when Hurricane Isaac made landfall, causing damage to the
properties.
After Hurricane Isaac, Ms. Gloston registered a claim for her
losses and FEMA sent an independent adjuster to the properties to
survey the damage.
Based on the adjuster's report, FEMA made a
partial payment of her claim.
In August 2013, Gloston filed suit against the Department of
Homeland Security and FEMA for breach of contract and declaratory
relief, asserting that defendants underpaid her claim.
now move for partial dismissal.
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Defendants
I.
A motion brought under Rule 12(b)(1) targets the Court’s lack
of subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1).
An
attack upon a complaint under Rule 12(b)(1) can be either facial or
factual.
See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981). A defendant makes a facial attack upon a complaint when the
defendant does nothing more than file the motion. See id. A
defendant makes a factual attack upon a complaint when a defendant
“submits affidavits, testimony, or other evidentiary materials.”
Id.
When
a
facial
attack
is
made,
courts
only
consider
the
allegations in the complaint, presuming them to be true. See id. If
a court confronts a factual attack, the plaintiff must “submit
facts through some evidentiary method and has the burden of proving
by a preponderance of the evidence that the trial court does have
subject
matter
jurisdiction.”
Id.;
see
also
Anderson
v.
KPA
Consulting, No. 02-850, 2002 WL 31246813, at *1 (N.D. Tex. Oct. 3,
2002).
Federal Rule of Civil Procedure 12(b)(6) calls for dismissal
when the plaintiff “fail[s] to state a claim upon which relief can
be granted.” When considering a motion to dismiss under Rule
12(b)(6), courts must accept the “plaintiff’s factual allegations
as true,” and will not grant a motion to dismiss “unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Drs.
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Bethea, Moustoukas & Weaver LLC v. St. Paul Guardian Ins. Co., 376
F.3d 399, 403 (5th Cir. 2004) (quoting Blackburn v. Marshall, 42
F.3d 925, 931 (5th Cir. 1995)). “[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.” Id. (quoting Fernandez-Montes v.
Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
Federal Rule of Civil Procedure 12(f) permits the Court to
strike
“from
any
pleading
any
insufficient
defense
or
any
claim
for
redundant, immaterial, impertinent, or scandalous matter.”
II.
A.
Defendants
first
contend
that
plaintiff's
declaratory relief should be dismissed because it is redundant and
immaterial.
The Court agrees.
Despite plaintiff's contentions to
the contrary, her declaratory relief claim, as presently styled,
seeks precisely the same relief requested in her breach of contract
claim. Fed. R. Civ. P. 12(f); Scritchfield v. Mut. of Omaha Ins.
Co.,
341
F.
Supp.
2d
675,
682
(E.D.
Tex.
2004)(dismissing
plaintiffs' claim for declaratory relief because they "would get
nothing from a declaratory judgment that they would not get from
prevailing on their breach of contract claims").
B.
Defendants
also
seek
extracontractual damages.
dismissal
of
any
request
for
Defendants contend that there is no
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waiver of sovereign immunity under 42 U.S.C. § 4072 to allow
damages beyond those for breach of contract.
Even assuming Ms.
Gloston requests extracontractual damages, she has not responded in
opposition to defendants' request, which appears to have merit.
See Gallup v. Omaha Prop. & Cas. Ins. Co., 434 F.3d 341 (5th Cir.
2005); Wright v. Allstate Ins. Co., 415 F.3d 384, 389-90 (5th Cir.
2005)(NFIA preempts extracontractual claims).
Accordingly, defendants' motion for partial dismissal is
GRANTED.
New Orleans, Louisiana, April 25, 2014
____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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