Christopherson v. Bushner
| Decision Date | 26 April 2021 |
| Docket Number | Case No. 6:19-03267-CV-RK |
| Parties | DEREK CHRISTOPHERSON, JENNIFER CHRISTOPHERSON, Plaintiffs, v. ROBERT BUSHNER, CONNIE JO BUSHNER, FEDERAL EMERGENCY MANAGEMENT AGENCY, INEZ PAHLMANN, MISSOURI OZARKS REALTY, INC., JOHN DOE, STANTEC CONSULTING SERVICES, INC., ATKINS NORTH AMERICA, INC., DEWBERRY ENGINEERS, INC.,and CORELOGIC FLOOD SERVICES, LLC, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Before the Court are various Defendants' motions to dismiss (Docs. 33, 48, 49, 50, 53); Plaintiffs' motion for leave to file a second amended complaint (Doc. 75); and Plaintiffs' motion for default judgment (Doc. 46). After careful consideration and for the reasons below, the claims against Defendants Federal Emergency Management Agency ("FEMA"), John Doe, Stantec Consulting Services, Inc. ("Stantec"), Atkins North America, Inc. ("Atkins"), and Dewberry Engineers, Inc. ("Dewberry")1 are DISMISSED; Plaintiffs' motion for leave to amend the complaint (Doc. 75) is DENIED; the case is DISMISSED for lack of subject-matter jurisdiction; and the remaining motions are DENIED as moot.
Background
The Court draws the following background from the allegations in the First Amended Complaint. (Doc. 31.) In March 2017, Plaintiffs Derek and Jennifer Christopherson bought a home from Defendants Robert and Connie Jo Bushner. The home was near a river and a lake, so Plaintiffs, before purchasing the house, wanted to confirm the property was not in a 100-year floodplain. Specifically, Plaintiffs obtained documents from FEMA stating that the home was not in a 100-year flood plain.
Plaintiffs also obtained a "Flood Certificate" from Defendant Corelogic Flood Services, LLC ("Corelogic"). The Flood Certificate allegedly stated that, not only was the home outside the 100-year flood plain, but also FEMA had never issued a "Letter of Map Amendment" ("LOMA") or "Letter of Map Change" ("LOMC") for the property. Furthermore, the Bushners, who owned the property, and their realtors (Defendants Inez Pahlman and Missouri Ozarks Realty, Inc.) allegedly told Plaintiffs the following: (1) the property had never flooded; (2) it was not in a FEMA flood zone; (3) sellers of real estate do not sign sellers' disclosure statements; and (4) all disclosures are made in the real estate sales contract. In reliance on these documents and oral statements, Plaintiffs bought the property in March 2017 without obtaining flood insurance. Forty days later, the home was destroyed by a flood.
Plaintiffs then discovered there was a floodplain map change (i.e., a LOMA or LOMC) for the property in 2010. According to Plaintiffs, the 2010 change lowered the Base Flood Elevation ("BFE") of the property by 34 feet, which recategorized the house from within the 100-year flood plain to outside it. Plaintiffs claim this change was not disclosed on any documents from Corelogic, FEMA, or STARR, which served as FEMA's contractor.
In 2018, FEMA and STARR then allegedly changed the designation for the property back to its pre-2010 status—i.e., placing the house within the 100-year floodplain—and allegedly backdated documents to suggest the BFE had never changed. Plaintiffs claim the correct BFE for the property places the house within the 100-year floodplain; they would not have bought the property if they had known this; and the 2018 recategorization back to within the 100-year floodplain now makes it impossible for them to sell the property.
The First Amended Complaint (Doc. 31) alleges the following claims:
Plaintiffs also request leave to add the following claims to the case (see Doc. 75-1):
The following motions are before the Court:
Pending a ruling on these motions, the Court stayed the scheduling order. (Doc. 88, 104.) All motions are now fully briefed and ready for decision.2
Discussion
In Count II, Plaintiffs allege claims against FEMA and others for "Fraudulent/Negligent Misrepresentation/Federal Tort Claims Act." (Doc. 31 at 18-21.) Plaintiffs also seek leave to add claims against FEMA for negligence under the FTCA (proposed Count VII), inverse condemnation/taking (proposed Count VIII), and prima facie tort under the FTCA (proposed Count IX). (Doc. 75-1 at 30-34.)
All of these claims are barred by the Flood Control Act of 1928's sovereign immunity provision. 33 U.S.C. § 702c. But even if that were not the case, these claims are also barred for several alternative reasons. Specifically, the FTCA claims against FEMA in Count II and proposed Count VII fall within the "misrepresentation exception" to the FTCA's sovereign immunity waiverand are barred by the more general sovereign immunity enjoyed by government agencies. 28 U.S.C. § 2680(h). Furthermore, all of Plaintiffs' FTCA claims (Count II and proposed Counts VII and IX) also fall within the "discretionary function" exception to the FTCA's immunity waiver. 28 U.S.C. § 2680(a). The only remaining claim if § 702c of the Flood Control Act did not apply would be proposed Count VIII, for inverse condemnation/taking, but the Court of Federal Claims has exclusive jurisdiction over this claim under the Tucker Act. 28 U.S.C. § 1491.
Sovereign immunity is a threshold jurisdictional issue. Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680, 686 (8th Cir. 2011). "A Rule 12(b)(1) motion challenges the federal court's subject matter jurisdiction over a cause of action." Bass v. United States, 428 F. Supp. 3d 162, 167 (W.D. Mo. 2019) (quotation marks and citation omitted). Plaintiffs bear the burden of proving jurisdiction exists. Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019) (citation omitted). "It is to be presumed that a cause lies outside [of the Court's] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
In deciding a Rule 12(b)(1) motion, a district court is required to distinguish between a facial attack and a factual attack. Croyle by & through Croyle v. United States, 908 F.3d 377, 380 (8th Cir. 2018); see generally Bass, 428 F. Supp. 3d at 167. "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). Here, however, FEMA levels a factual attack to jurisdiction. (Doc. 34 at 9 n.2.)
In a factual attack, the Court "may look outside the pleadings to affidavits or other documents." Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). A factual attack does not convert a Rule 12(b)(1) motion into one for summary judgment. Id. (citation omitted). Instead, the party invoking federal jurisdiction must prove jurisdictional facts by a preponderance of the evidence. Id. "Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). "[No presumption of] truthfulness attaches to plaintiff'sallegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Titus, 4 F.3d at 593 n. 1.
The Flood Control Act provides that "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place . . . ." 33 U.S.C. § 702c. Section 702c applies "only if governmental control of flood waters was a substantial factor in causing the plaintiff's injuries." Fisher v. U.S. Army Corps of Eng'rs, 31 F.3d 683, 684-85 (8th Cir. 1994) (applying immunity); Henderson v. United States, 965 F.2d 1488, 1492 (8th Cir. 1992) (denying immunity).
Here, governmental control of flood waters was a substantial factor in causing the plaintiffs' damages. Plaintiffs allege they were harmed by FEMA's flood mapping activities. The Fourth Circuit summarized FEMA's flood mapping duties in Columbia Venture, LLC v. Dewberry & Davis, LLC:
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