Christopherson v. Bushner

• Decision Date: 02 May 2022
• Docket Number: 21-2441
• Citation: 33 F.4th 495
• Parties: Derek CHRISTOPHERSON; Jennifer Christopherson, Plaintiffs - Appellants v. Robert BUSHNER; Connie Bushner; Federal Emergency Management Agency ; Inez Pahlmann; Missouri Ozarks Realty, Inc. ; John Doe; Stantec Consulting Services, Inc.; Atkins North America, Inc. ; Dewberry Engineers, Inc. ; Corelogic Flood Services, LLC, Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.4th 495

Derek CHRISTOPHERSON; Jennifer Christopherson, Plaintiffs - Appellants

v.Robert BUSHNER; Connie Bushner; Federal Emergency Management Agency ; Inez Pahlmann; Missouri Ozarks Realty, Inc. ; John Doe; Stantec Consulting Services, Inc.; Atkins North America, Inc. ; Dewberry Engineers, Inc. ; Corelogic Flood Services, LLC, Defendants - Appellees

No. 21-2441

United States Court of Appeals, Eighth Circuit.

Submitted: February 17, 2022

Filed: May 2, 2022

Kory D. Stubblefield, Stubblefield Law, LLC, Springfield, MO, argued (Nicole D. Lindsey, Stubblefield Law, LLC, Springfield, MO, Glenn P. Green, N. Austin Fax, Lowther Johnson, Springfield, MO, on the brief), for plaintiffs-appellants.

Ross D. Ginsberg, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA, argued (Anna Idelevich, on the brief), for defendants-appellees Stantec Consulting Services, Inc., Atkins North America, Inc., and Dewberry Engineers, Inc.

Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.

BENTON, Circuit Judge.

Plaintiffs Derek and Jennifer Christopherson bought a lot with a house, near the North Fork of the White River in Tecumseh, Missouri. They did not get flood insurance for the house. Within weeks, the region flooded, destroying the house. The Christophersons sued the property sellers, the Federal Emergency Management Agency, and some private contractors that help FEMA assess flood risk. Those contractors moved to dismiss for failure to state a claim. The district court¹ granted the motion. Having jurisdiction under 28 U.S.C. § 1291, this Court affirms.

I.

In March 2017, Plaintiffs Derek and Jennifer Christopherson purchased a house and property in Tecumseh, Missouri, on the North Fork of the White River.

While purchasing the home, they reviewed the flood certificate from FEMA for the home, and hired Corelogic Flood Services, LLC to do further investigation. They allege that Corelogic provided information "indicat[ing] there had been no Letter of Map Amendment (‘LOMA’) or Letter of Map Change (‘LOMC’) for the Home and Property at any time" and these "were not, and had never been, located within a designated Special Flood Hazard Area" ("SFHA").

FEMA documents "available to" the Christophersons when they bought the home showed that the 100-year flood line was 581.4 feet and the home's foundation was "located at approximately 581.8 feet," thus inches outside the 100-year flood zone and the SFHA.²

Robert and Connie Jo Bushner, who built the home in 2007 and sold it to the Christophersons, assured them it was "not in a FEMA flood zone, had never flooded, and w[as] not at risk for flooding."

In April 2017, 40 days after the Christophersons moved in, a flood "destroyed the [h]ome and all the family's personal property."

Despite the previous information from Corelogic, FEMA in fact had issued a "Letter of Map Amendment Determination Document (Non-Removal)," dated March 11, 2010. It listed the 100-year flood line as 615.4 feet, and designated the home as within flood-map zone "A" and the SFHA. Am. Compl. ¶ 47, DCD 31; see also 3/11/20 LOMA , DCD 26-4 ("[W]e have determined that the structure(s) ... is/are located in the SFHA.").

An April 8, 2010, "Letter of Map Amendment Determination Document (Removal)" from FEMA removed that designation, lowering the 100-year flood line to 581.4 feet ("2010 Change"). This second LOMA placed the home in flood-map zone "X (unshaded)," and outside the SFHA. 4/8/10 LOMA , DCD 26-5 (stating the "structure(s) ... is/are not located in the SFHA," so "the Federal mandatory flood insurance requirement does not apply").

Plaintiffs allege that either FEMA or the Strategic Alliance for Risk Reduction ("STARR")—an independent contractor with FEMA—made the 2010 Change to the 100-year flood-line estimate and SFHA designation. They allege that STARR is a joint venture by Defendants Stantec Consulting Services, Inc., Dewberry Engineers, Inc., and Atkins North America, Inc., but do not name STARR itself as a defendant.

They further allege that FEMA or STARR revised the flood map assessment of the property in 2018 to place it back in the 100-year flood area and "backdated the modification to 2010 to make it appear" that the property "at no time" fell outside that area. They allege this 2018 Change caused further harm by making it impossible to sell the property.

In 2019, the Christophersons sued the Bushners, FEMA, Stantec, Dewberry, Atkins, and the realtor and realty company for the Bushners for various state and federal torts. They later amended the Complaint, including Count II, a claim against "FEMA, STARR, John Doe" for "Fraudulent/Negligent Misrepresentation/Federal Tort Claims Act." Am. Compl. at 18, DCD 31.³

As relevant, Atkins and Stantec filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), extending the federal-contractor defense in Boyle v. United Technologies Corp. , 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), to argue that the state-law claim was preempted by the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001 - 131 ("NFIA"). See Mot. Dismiss Br., DCD 54. Dewberry filed a separate 12(b)(6) motion, arguing it was not a proper defendant because it was not a member of STARR at the time of the alleged 2010 activity and, even if it were, the Christophersons did not identify any acts or omissions by it. The district court granted Stantec's and Atkin's motion, dismissed the claim against them and Dewberry based on preemption, and dismissed Dewberry's motion as moot.

The Christophersons appeal.

II.

The Christophersons fail to state a claim because their Complaint does not contain sufficient factual matter to show they are entitled to relief from Atkins, Stantec, or Dewberry.

This Court reviews "de novo a grant of a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Schulte v. Conopco, Inc. , 997 F.3d 823, 825 (8th Cir. 2021) (quotations omitted). "[A] complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’ " Id. , quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (" Iqbal "). A claim is plausible 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, 129 S.Ct. 1937. "Where a complaint pleads facts that are merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility.’ " Id. (quotations omitted).

This Court "accept[s] as true all factual allegations in the light most favorable to the nonmoving party." Schulte , 997 F.3d at 825 (quotations omitted). However, "naked assertions devoid of further factual enhancement," do not suffice, nor do "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (cleaned up) (quotations omitted). "Rather, the facts alleged ‘must be enough to raise a right to relief above the speculative level.’ " In re Pre-Filled Propane Tank Antitrust Litig. , 860 F.3d 1059, 1063 (8th Cir. 2017) (en banc) (" Propane Tank I "), quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

The Christophersons seek relief against Atkins, Dewberry and Stantec under either the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 - 80, or the "common law for ... fraudulent/negligent misrepresentations" "should the [FTCA] not apply to the STARR Defendants." The Christophersons effectively seek these three alternative forms of relief under one pleaded count. Each fails.

The Christophersons fail to state an FTCA claim against these Defendants because they do not allege STARR or any of these Defendants were employees of the federal government. See 28 U.S.C. §§ 1346(b)(1) , 2679(b)(1) (providing FTCA remedy for an injury caused by "the negligent or wrongful act or omission of any employee of the Government " (emphasis added)).

Meanwhile, for state-law claims, "this [C]ourt applies ‘federal pleading standards ... to the state substantive law to determine if a complaint makes out a claim under state law.’ " Ambassador Press, Inc. v. Durst Image Tech. U.S., LLC , 949 F.3d 417, 421 (8th Cir. 2020), quoting Karnatcheva v. JPMorgan Chase Bank , N.A. , 704 F.3d 545, 548 (8th Cir. 2013).

Under Missouri law, a plaintiff must prove five elements for negligent misrepresentation: (1) "the speaker supplied information in the course of [its] business"; (2) "the information was false" "because of the speaker's failure to exercise reasonable care"; (3) the speaker "intentionally provided" "the information ... for the guidance of limited persons in a particular business transaction"; (4) "the hearer justifiably relied on the information"; and (5) "the hearer suffered a pecuniary loss" due to its "reliance on the information." Renaissance Leasing, LLC v. Vermeer Mfg. Co. , 322 S.W.3d 112, 134 (Mo. banc 2010). The Complaint fails on three of these elements, but failing even just one would be fatal. See id.

The Complaint has no allegations about the acts or omissions Atkins, Stantec or Dewberry committed individually. Instead, it alleges these Defendants acted as the collective, "STARR," and refers to their ostensible participation only by that name or by attributing an act to a single, anonymous "John Doe" who allegedly was "an agent of FEMA and/or STARR" and "represents the individual or individuals responsible for the 2010 Change." The Complaint does not state how Atkins, Stantec and Dewberry work within STARR or which entity was responsible for any acts through STARR, and, notably, does not name STARR as a defendant.

The Complaint offers only three statements detailing STARR. First:

STARR advertises that its joint venture is "comprised of three proven leaders in DFIRM mapping, risk assessment, risk communication, and mitigation planning." Moreover, STARR advertises that

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