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Moore v. Federal Emergency Management Agency

United States District Court, S.D. Texas, Houston Division

August 6, 2019

JAMES MOORE, et al, Plaintiffs,
v.
FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendant.

          ORDER

          ANDREW S. HANEN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant FEMA's Motion to Dismiss (Doc. No. 14). Plaintiff has not responded in opposition to the motion and the deadline to respond has now passed. Upon careful consideration of the arguments, pleadings, and applicable law, the Court herein grants the Motion to Dismiss.

         I. Background

         Plaintiffs James and Mary Moore ("Plaintiffs" or "the Moores") filed this suit against the Federal Emergency Management Agency ("FEMA") for breach of a flood insurance contract issued pursuant to the National Flood Insurance Program. They filed their Complaint on October 21, 2018 before this Court. (Doc. No. 1). In brief, Plaintiffs allege that their home was devastated by water damage and flooding during Hurricane Harvey in August 2017, and that Plaintiffs submitted a claim to FEMA to cover the property damage. (Id. ¶¶ 12-14). FEMA's agents conducted an evaluation and determined that Plaintiffs' net claim amount should total $85, 086.70 for damages. (Id. ¶ 14). Plaintiffs dispute that the damages award fully accounts for the extent of damage, which they argue was valued in excess of $246, 948.00. (Id. ¶¶ 15-16). Accordingly, the Plaintiffs filed suit for breach of contract. (Id. ¶¶ 19-24).

         FEMA has now moved to dismiss on two grounds. First, FEMA argues that the Court should dismiss the Complaint for insufficient service of process under Rule 12(b)(5). Second, FEMA asks the Court to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, as it argues that FEMA is an improper defendant in the case under federal law. (Doc. No. 14 at 2).

         II. Procedural History and Rules Governing Unopposed Motions

          FEMA's Motion to Dismiss was filed on July 12, 2019. (Doc. No. 14). This Court's Local Rules state that "Opposed motions will be submitted to the judge 21 days from filing without notice from the clerk and without appearance by counsel.... Failure to respond to a motion will be taken as a representation of no opposition." S. Dist. Tex. L.R. 7.3, 7.4 (emphasis added); see also Hanen L.R. 7(D). Accordingly, the Moore's response in opposition was due no later than August 2, 2019. That deadline has passed with no response or requests for extensions filed by Plaintiffs.

         Therefore, the local rules would allow the Court to grant FEMA's motion as it should be considered unopposed. However, the Fifth Circuit has explained that "although we have endorsed the adoption of local rules that require parties to file responses to opposed motions, we have not approved the automatic grant, upon failure to comply with such rules, of motions that are dispositive of the litigation." See Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (citing Johnson v. Louisiana, 757 F.2d 698, 707-09 (5th Cir. 1985)); Ramsey v. Signal Delivery Serv., 631 F.2d 1210, 1213-14 (5th Cir. 1980)). In other words, where a party does not respond to a motion to dismiss, such failure does not warrant a severe measure, such as dismissal with prejudice. Ramsey, 631 F.2d at 1214. In accordance with Fifth Circuit precedent, this Court will turn to the merits of the motion to dismiss and Plaintiffs' Complaint, and because dismissal is still warranted on the merits, the Court will grant it without prejudice.

         III. Legal Standard

         a. Rule 12(b)(5)

         Federal Rule of Civil Procedure 12(b)(5) permits a named defendant to challenge proper service of the summons and complaint in a case. For a federal court to have personal jurisdiction over a defendant, the defendant must have been served with process in accordance with Rule 4. Starred v. Lockheed Martin Corp., No.3:17-cv-988-D, 2017 WL 4174812, at *1 (N.D. Tex. Aug. 16, 2017), aff'd 735 Fed.Appx. 169 (5th Cir. 2018). "The party making service has the burden of demonstrating its validity when an object to service is made." Quinn v. Miller, 470 Fed.Appx. 321, 323 (5th Cir. 2012) (citing Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)).

         Federal Rule of Civil Procedure 4(i), which governs method of service on the United States, its agencies, and employees, provides:

(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought - or to an assistant United States attorney or clerical employee whom the United States attorney ...

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