United States District Court, S.D. Texas, Houston Division
S. HANEN UNITED STATES DISTRICT JUDGE
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.
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).
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).
Procedural History and Rules Governing Unopposed
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.
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.
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)).
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 ...