Evangelista v. Tolson et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

D.N.J.June 16, 2017

1 WILLIAM E. FITZPATRICK Acting United States Attorney CHRISTOPHER D. AMORE Assistant United States Attorney 970 Broad Street Newark, New Jersey 07102 Tel.: (973) 645-2757 Fax: (973) 297-2010 christopher.amore@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARC EVANGELISTA, Plaintiff, v. DAN TOLSON and the FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendants. HON. ROBERT B. KUGLER Civil Action No. 17−03734 (RBK) (JS) To: Mr. Marc Evangelista Mr. Dan Tolson 1216 Lincoln Avenue 3605 Penbrooke Lane Pleasantville, NJ 08232 Ocean City, NJ 08226 Plaintiff Pro Se Defendant Pro Se PLEASE TAKE NOTICE, that on July 17, 2017, at 10:00 AM, or as soon thereafter as counsel may be heard, WILLIAM E. FITZPATRICK, United States Attorney for the District of New Jersey, CHRISTOPHER D. AMORE, Assistant United States Attorney, appearing as attorney for Defendant Federal Emergency Management Agency (“FEMA”), will apply to this court for an order dismissing the complaint in this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Case 1:17-cv-03734-RBK-JS Document 5 Filed 06/16/17 Page 1 of 2 PageID: 25 2 In support of this motion, Defendant FEMA respectfully refers the Court to the brief in support of the motion to dismiss, the supporting declaration and exhibits, and requests that this motion be decided on the papers submitted, without oral argument, pursuant to Rule 78 of the Federal Rules of Civil Procedure. Dated: Newark, New Jersey June 16, 2017 WILLIAM E. FITZPATRICK Acting United States Attorney By: /s/ Christopher D. Amore CHRISTOPHER D. AMORE Assistant United States Attorney Case 1:17-cv-03734-RBK-JS Document 5 Filed 06/16/17 Page 2 of 2 PageID: 26 WILLIAM E. FITZPATRICK Acting United States Attorney CHRISTOPHER D. AMORE Assistant United States Attorney 970 Broad Street Newark, New Jersey 07102 Tel.: (973) 645-2757 Fax: (973) 297-2010 christopher.amore@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARC EVANGELISTA, Plaintiff, v. DAN TOLSON and the FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendants. HON. ROBERT B. KUGLER Civil Action No. 17−03734 (RBK) (JS) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT FEMA’S MOTION TO DISMISS WILLIAM E. FITZPATRICK ACTING UNITED STATES ATTORNEY Attorney for FEMA On the Brief: CHRISTOPHER D. AMORE Assistant United States Attorney Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 1 of 16 PageID: 27 i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................... ii PRELIMINARY STATEMENT ..................................................................................... 1 STATEMENT OF FACTS ............................................................................................. 1 I. The Flood Loss Claim ......................................................................................... 1 II. The NFIP’s Purpose and Framework ................................................................ 2 ARGUMENT .................................................................................................................. 4 I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFF EVANGELISTA’S CLAIMS AGAINST FEMA BECAUSE THERE IS NO WAIVER OF SOVEREIGN IMMUNITY ............... 4 A. Standard of Review for Fed R. Civ. P. 12(b)(1) ............................................ 4 B. No Waiver of Sovereign Immunity Under the Standard Flood Insurance Policy ............................................................................................ 4 C. No Waiver of Sovereign Immunity Under the Tucker Act, 28 U.S.C. § 1491(a) or the Little Tucker Act, 28 U.S.C. § 1346(a)(2) .......... 7 II. THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P 12(b)(1) BECAUSE PLAINTIFF LACKS STANDING ........... 7 III. PLAINTIFF EVANGELISTA’S COMPLAINT FAILS TO STATE A CLAIM FOR WHICH THIS COURT CAN GRANT RELIEF ........................ 9 A. Standard of Review for Fed. R. Civ. P. 12(b)(6) ........................................... 9 B. Plaintiff’s Claim Against FEMA Is Not Viable As a Matter of Law ......... 10 CONCLUSION ............................................................................................................. 12 Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 2 of 16 PageID: 28 ii TABLE OF AUTHORITIES CASES ACLU-NJ v. Township of Wall, 246 F.3d 258 (3d Cir. 2001) ....................................... 8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................... 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................ 10 California Sand and Gravel, Inc. v. United States, 22 Cl. Ct. 19 (1990) ..................... 7 Cohen v. Kurtzman, 45 F. Supp. 2d 423 (D.N.J. 1999) ................................................ 8 Cudjoe ex rel. Cudjoe v. Dep’t of Veterans Affairs, 426 F.3d 241 (3d Cir. 2005) ...... 4, 6 Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) ............................................... 11 Erickson Air Crane Co. of Washington, Inc. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984) ............................................................................. 7 Ervinwood Marine, Inc. v. Fireman’s Fund Ins. Co., 750 F. Supp. 278 (N.D. Ohio 1990) ............................................................... 5-6, 7, 12 Eubanks v. United States, 25 Cl. Ct. 131 (1992) .......................................................... 7 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) .......................................... 10 Frederico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) ............................................... 11 Gotha v. United States, 115 F.3d 176 (3d Cir. 1997) .................................................... 4 Gould Elecs., Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) ................................. 4 Haines v. Kerner, 404 U.S. 519 (1972) ........................................................................ 11 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................. 8-9 Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884 (3d Cir. 1977) ................ 4 Mun. Ass’n of S. Carolina v. USAA Gen. Indem. Co., 709 F.3d 276 (4th Cir. 2013) .................................................................................... 2-3 New Jersey Protection & Advocacy, Inc. v. New Jersey Dep’t of Educ., 563 F. Supp. 2d 474, 479 (D.N.J. 2008) ..................................................................... 8 Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 3 of 16 PageID: 29 iii Studio Frames Ltd. v. Standard Fire Ins. Co., 483 F.3d 239 (4th Cir. 2007).............. 3 Suopys v. Omaha Property and Cas., 404 F.3d 805 (3d Cir. 2005) .............................. 5 United States v. Craig, 694 F.3d 509 (3d Cir. 2012) ..................................................... 5 Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................ 9 STATUTES 28 U.S.C. § 1346(a)(2) .................................................................................................... 7 28 U.S.C. § 1491(a) ........................................................................................................ 7 42 U.S.C. § 4001–4129 ............................................................................................... 2, 3 42 U.S.C. § 4072 ....................................................................................................... 5, 12 REGULATIONS 44 C.F.R. § 61, Appendix A ................................................................................... 3-4, 12 RULES Fed R. Civ. P. 12(b)(1) .......................................................................................... passim Fed R. Civ. P. 12(b)(6) ................................................................................... 12, 9-10, 12 MISCELLANEOUS H.R.Rep. No. 90–1585 (1968), reprinted in 1968 U.S.C.C.A.N. 2873 .......................... 3 Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 4 of 16 PageID: 30 PRELIMINARY STATEMENT Defendant Federal Emergency Management Agency (“FEMA” or “Defendant”) respectfully requests that the Court dismiss the complaint (“Complaint” or “Compl.”) of Marc Evangelista (“Plaintiff” or “Evangelista”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Complaint should be dismissed pursuant to Rule 12(b)(1) because there has been no waiver of sovereign immunity with respect to Plaintiff’s claim against FEMA and Plaintiff lacks standing to bring a claim against FEMA. The Complaint should also be dismissed pursuant to Rule 12(b)(6) because Plaintiff fails to state a claim for breach of contract. STATEMENT OF FACTS I. The Flood Loss Claim As alleged in the Complaint, this action is predicated on an “unpaid invoice related to FEMA claim #RL00059454.” Compl. [ECF No. 1-1] at 7. Plaintiff claims he is owed $7,930.11 from the Defendants, id., presumably for repairs made to the insured property located at 3605 Pembroke Lane in Ocean City, New Jersey 08226 (“3605 Pembroke”). The co-defendant, Dan Tolson (“Tolson”), insured his property at 3605 Pembroke with a dwelling Standard Flood Insurance Policy (“SFIP”) issued by FEMA through the National Flood Insurance Program (“NFIP”) for the period of June 18, 2015 to June 18, 2016. See Open Coverage Verification Sheet, attached to the Declaration of Don Wimberley (“Wimberley Decl.”) as Exhibit A. Tolson’s SFIP, bearing policy number RL00059454, had a $250,000 limit for building coverage and a $100,000 limit for contents coverage. Id. Each coverage carried a $5,000 deductible. Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 5 of 16 PageID: 31 2 Id. Tolson is the only named insured on SFIP RL00059454. Id. Plaintiff, Marc Evangelista, is not a named insured on SFIP RL00059454. See id. On January 25, 2016, Tolson’s premises at 3605 Pembroke sustained a flood loss due to Winter Storm Jonas. See id.; Wimberley Decl. ¶ 3. Shortly thereafter, Tolson submitted a claim to FEMA under the SFIP for his property loss. Wimberley Decl. ¶ 4. FEMA then sent a certified independent adjuster to 3605 Pembroke to assess the property damage. See id. On February 20, 2016, Tolson signed a Proof of Loss claiming net damages in the amount of $21,934.61. See Proof of Loss attached to Wimberley Decl. as Exhibit B. On February 29, 2016, FEMA made payments to Tolson in the amount of $16,171 for building damage and $7,333 for contents damage. See id. ¶ 5, Claim Summary attached to Wimberley Decl. as Exhibit C. Tolson did not appeal this claim or the amounts paid by FEMA. See id. ¶ 6. As a result of a second flood event at 3605 Pembroke on February 8, 2016, Tolson submitted another claim for flood loss damages. See id. ¶ 7. An independent adjuster reviewed the damage for FEMA and found the damage to total $1,262.92. See id. ¶ 8. Because the damage amount was lower than the $5,000 deductible, FEMA did not issue any payment for this claim. See id. Tolson did not submit an appeal or request review of the denial of this claim. See id. ¶ 9. II. The NFIP’s Purpose and Framework “The NFIP was created by the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001–4129, (‘NFIA’), in part to make ‘federally subsidized flood insurance available in flood-prone areas,’ and reduce the burden on the nation for unforeseen disaster relief[.]” Mun. Ass’n of S. Carolina v. USAA Gen. Indem. Co., 709 F.3d 276, 279 (4th Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 6 of 16 PageID: 32 3 Cir. 2013) (citing Studio Frames Ltd. v. Standard Fire Ins. Co., 483 F.3d 239, 243 (4th Cir. 2007) and 42 U.S.C. § 4001(a)-(e)). “Prior to its enactment, flood insurance was generally unavailable from private insurance companies as those companies were unwilling to underwrite and bear flood risks due to the catastrophic nature of floods.” Mun. Ass’n of S. Carolina, 709 F.3d at 279 (citing 42 U.S.C. § 4001(b); H.R.Rep. No. 90–1585 (1968), reprinted in 1968 U.S.C.C.A.N. 2873, 2965–73). “To the extent possible, the NFIP is designed to pay operating expenses and flood insurance claims with premiums collected on flood insurance policies rather than with tax dollars.” Studio Frames, 483 F.3d at 243 (quotation and citation omitted). The SFIP is itself a Federal Regulation promulgated by FEMA. The Dwelling form, at issue here, is found at 44 C.F.R. § 61, Appendix A(1). It states that FEMA “provides flood insurance under the terms of the National Flood Insurance Act of 1968 and its Amendments, and Title 44 of the Code of Federal Regulations.” 44 C.F.R. § 61, Appendix A(1)(I). Further, FEMA “will pay you for direct physical loss by or from flood to your insured property.” Id. (emphasis added). The SFIP defines “you” and “your” as follows: “you” and “your” refer to the insured(s) shown on the Declarations Page of this policy and your spouse, if a resident of the same household. Insured(s) includes: Any mortgagee and loss payee named in the Application and Declarations Page, as well as any other mortgagee or loss payee determined to exist at the time of loss in the order of precedence. Id. § 61, Appendix A(1)(II)(A). Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 7 of 16 PageID: 33 4 The SFIP does not provide for payments to third parties not named in the application and declarations pages. In fact, the SFIP explicitly states that FEMA “will adjust all losses with you” (i.e., the insured). Id. § 61, Appendix A(1)(VII)(M) (emphasis added). “We [FEMA] will pay you unless some other person or entity is named in the policy or is legally entitled to receive payment.” Id. (emphasis added). ARGUMENT I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFF EVANGELISTA’S CLAIMS AGAINST FEMA BECAUSE THERE IS NO WAIVER OF SOVEREIGN IMMUNITY A. Standard of Review for Fed R. Civ. P. 12(b)(1) The court must dismiss a case when the plaintiff fails to establish subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may make a factual challenge to the court’s subject matter jurisdiction. See Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). The court is permitted to review evidence outside of the pleadings when reviewing a factual attack. Gould Elecs., 220 F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79) (3d Cir. 1997). A court lacks subject matter jurisdiction over claims against the Government unless there is an “express and unambiguous” waiver of sovereign immunity. Cudjoe ex rel. Cudjoe v. Dep’t of Veterans Affairs, 426 F.3d 241, 246 (3d Cir. 2005). B. No Waiver of Sovereign Immunity Under the Standard Flood Insurance Policy The United States has not waived sovereign immunity to allow Plaintiff, a non- Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 8 of 16 PageID: 34 5 policyholder, to bring a lawsuit against FEMA under the SFIP. The limited waiver of sovereign immunity, found at 42 U.S.C. § 4072, provides as follows: In the event the program is carried out as provided in section 4071 of this title, the Administrator shall be authorized to adjust and make payment of any claims for proved and approved losses covered by flood insurance, and upon the disallowance by the Administrator of any such claim, or upon the refusal of the claimant to accept the amount allowed upon any such claim, the claimant, within one year after the date of mailing of notice of disallowance or partial disallowance by the Administrator, may institute an action against the Administrator on such claim in the United States district court for the district in which the insured property or the major part thereof shall have been situated, and original exclusive jurisdiction is hereby conferred upon such court to hear and determine such action without regard to the amount in controversy. 42 U.S.C. § 4072 (emphasis added). As Section 4072 constitutes a limited waiver of sovereign immunity, the Court must strictly construe and enforce its provisions. See United States v. Craig, 694 F.3d 509, 511 (3d Cir. 2012) (“Waivers of the government’s sovereign immunity, to be effective, must be unequivocally expressed, and any such waiver must be construed strictly in favor of the sovereign) (quotations and citations omitted); Suopys v. Omaha Property and Cas., 404 F.3d 805, 810 (3d Cir. 2005) (strictly construing provisions of the SFIP). Section 4072 only allows a claimant (i.e. the named insured of a SFIP) – not a contractor who performed repairs on the insured property – to bring a breach of contract claim against FEMA where a claim for policy benefits has been denied in whole or in part. Nothing in Section 4072’s limited waiver of sovereign immunity allows a non-policyholder to bring a lawsuit of any kind against FEMA. See Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 9 of 16 PageID: 35 6 Ervinwood Marine, Inc. v. Fireman’s Fund Ins. Co., 750 F. Supp. 278 (N.D. Ohio 1990). In Ervinwood Marine, the plaintiff’s insurance agent, a defendant in the case, filed a third-party complaint against FEMA contending that the plaintiff’s losses were covered under the SFIP. See id. at 279. Construing strictly the limited waiver of sovereign immunity, the court found that the “claimant” (i.e. the named insured) was “the only party authorized to challenge FEMA’s actions in this Court.” Id. at 280. “To allow a third party . . . to maintain this action would require this Court to read the terms of the statute beyond their plain meaning, and to do so would violate the principal that waivers of sovereign immunity must be construed narrowly.” Id. Accordingly, FEMA’s motion to dismiss was granted. Id. Here, the only named insured on the SFIP RL00059454 covering the property at 3605 Pembroke is Tolson. See Wimberley Decl. ¶ 3, Exh. A (Open Coverage Verification Sheet). Moreover, the only person who has ever submitted a claim under SFIP RL00059454 is Tolson. See id. ¶¶ 4, 7, Exh. B (Proof of Loss). Likewise, the only person who can receive, and has received, payments from FEMA under SFIP RL00059454 is also Tolson. See id. ¶ 5, Exh. C (Claim Summary). Plaintiff Evangelista is not a named insured, he has never made (nor could he make) a claim for insurance coverage under SFIP RL00059454, and he has never received (nor could he receive) payments from FEMA under SFIP RL00059454. Because there has been no waiver of sovereign immunity with respect to any claim that Plaintiff could make against FEMA, this Court lacks subject matter jurisdiction over Plaintiff’s claims. See Cudjoe, 426 F.3d at 246; Ervinwood Marine, 750 F. Supp. Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 10 of 16 PageID: 36 7 at 280. D. No Waiver of Sovereign Immunity Under the Tucker Act, 28 U.S.C. § 1491(a) or the Little Tucker Act, 28 U.S.C. § 1346(a)(2) To the extent the Court construes Plaintiff’s claim as a breach of contract claim, Plaintiff’s Complaint must be dismissed on Rule 12(b)(1) grounds because FEMA has not waived its sovereign immunity under the Tucker Act. Under the Tucker Act, 28 U.S.C. §1491(a), and the Little Tucker Act, 28 U.S.C. § 1346(a)(2), the United States and its agencies, such as FEMA, can be sued for breach of contract only by those who have contractual privity with the United States or, at the very least, can prove that they were a third-party beneficiary of the applicable contract. Erickson Air Crane Co. of Washington, Inc. v. United States, 731 F.2d 810, 813 (Fed. Cir. 1984); Eubanks v. United States, 25 Cl. Ct. 131, 137 (1992); California Sand and Gravel, Inc. v. United States, 22 Cl. Ct. 19, 24, 26 (1990) (under the Tucker Act, only a party with direct contractual relationship with the United States may bring a breach of contract claim). Here, Plaintiff does not – and cannot – allege that they are in contractual privity with FEMA or that they are a third-party beneficiary of Tolson’s SFIP issued by FEMA. Because the Court lacks subject matter jurisdiction over Plaintiff’s claim, the Complaint should be dismissed. II. THE COMPLAINT SHOULD BE DISMISSED PURSUANT TO FED. R. CIV. P 12(b)(1) BECAUSE PLAINTIFF LACKS STANDING To the extent any claims against FEMA are not dismissed on the bases discussed above, they should be dismissed pursuant to Rule 12(b)(1) because Plaintiff Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 11 of 16 PageID: 37 8 lacks standing. Under Rule 12(b)(1), a defendant may move to dismiss a claim for lack of subject matter jurisdiction where the plaintiff fails to establish standing. New Jersey Protection & Advocacy, Inc. v. New Jersey Dep’t of Educ., 563 F. Supp. 2d 474, 479 (D.N.J. 2008) (citations omitted). “[N]o presumptive truthfulness attaches to the allegations of a plaintiff” where the defendant challenges the factual basis of the plaintiff’s allegations of subject matter jurisdiction. Cohen v. Kurtzman, 45 F. Supp. 2d 423 (D.N.J. 1999) (citations omitted). The Court is not limited to the allegations in the complaint and may consider “[c]onflicting written and oral evidence” and “decide for itself the factual issues which determine jurisdiction.” See id. (internal citations and quotations omitted). Where subject matter jurisdiction is challenged under Rule 12(b)(1), “the plaintiff must bear the burden of persuasion.” Id. (citations and quotations omitted); see also ACLU-NJ v. Township of Wall, 246 F.3d 258, 261, 266 (3d Cir. 2001) (a party who seeks to invoke federal jurisdiction bears the burden of proving standing). Here, it is clear from the face of the Complaint that Plaintiff lacks standing and therefore the Court has no subject matter jurisdiction over Plaintiff’s claim. The standing requirement consists of three elements. First, “the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). Second, “there must be a causal connection Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 12 of 16 PageID: 38 9 between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (citation and quotations omitted). Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (citation and quotations omitted). Plaintiff does not – and cannot – satisfy any of these elements. Plaintiff alleges no concrete, particularized, actual or imminent invasion of a legally protected interest by FEMA. Further, Plaintiff fails to specify what conduct by FEMA allegedly caused the injuries he alleges. Finally, he fails to specify how the relief he seeks from FEMA will redress his alleged injury. After all, FEMA currently has no connection to Plaintiff. Plaintiff is not a named insured on the SFIP policy at issue, and FEMA was not a party to the underlying transaction resulting in Plaintiff’s “unpaid invoice.” Because Plaintiff lacks standing, the Court has no subject matter jurisdiction and the Complaint should be dismissed pursuant to Rule 12(b)(1). Id. at 560 (noting that the standing requirement is “an essential and unchanging part of the case-or- controversy requirement of Article III”); Warth v. Seldin, 422 U.S. 490, 499 (1975) (holding that, in the absence of an actual case or controversy, the Court is without jurisdiction to decide it). III. PLAINTIFF EVANGELISTA’S COMPLAINT FAILS TO STATE A CLAIM FOR WHICH THIS COURT CAN GRANT RELIEF A. Standard of Review for Fed. R. Civ. P. 12(b)(6) Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 13 of 16 PageID: 39 10 A court may dismiss a complaint for “failure to sate a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A plaintiff’s claim will be “plausible” if the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. The complaint must present factual allegations that are “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555-57 (citations omitted). Factual allegations must be enough “to raise a right to relief above the speculative level,” id. at 555; and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not survive a motion to dismiss. Iqbal, 556 U.S. at 678. Plaintiff’s claim for damages for an alleged “unpaid invoice” does not meet this standard. B. Plaintiff’s Claim Against FEMA Is Not Viable As a Matter of Law Beyond the fact that there is no waiver of sovereign immunity to allow Plaintiff’s Complaint to proceed, it is clear on its face that Plaintiff’s Complaint presents no viable claim. The Complaint merely consists of one line that states: “Unpaid invoice related to FEMA flood claim #RL00059454.” Compl. [ECF No. 1-1] at 7. The Complaint sets forth no cause of action against FEMA, provides no factual content to support the Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 14 of 16 PageID: 40 11 claim, and raises no right to relief. Additionally, the Complaint wrongly characterizes the SFIP’s policy number – RL00059454 – as an alleged claim number. See id. Moreover, because Plaintiff does not allege in the Complaint that he is a policyholder or a named insured on the SFIP at issue, Plaintiff’s Complaint also fails to state a claim for which this Court may grant relief. Defendant recognizes, however, that the Court may hold Plaintiff to a less stringent pleading standard because of his pro se status, and liberally construe a breach of contract claim in the Complaint, though not expressly pled. See Haines v. Kerner, 404 U.S. 519 (1972) (pro se complaints should be held to “less stringent standards than formal pleadings drafted by lawyers); see also Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (pro se complaints must be “liberally construe[d]” and courts “will apply applicable law, irrespective of whether the pro se litigant has mentioned it by name”). In the event the Court interprets Plaintiff’s Complaint as raising a breach of contract claim, such claim must nonetheless be dismissed because Plaintiff has not alleged the existence of any contract between Plaintiff and Defendant. To state a claim for breach of contract under New Jersy law, a plaintiff must allege (1) the existence of a contract between the parties; (2) a breach of that contract; (3) damages as a result of the breach; and (4) that the party bringing the claim performed its own contractual obligations. Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007). Here, Plaintiff’s Complaint is devoid of any allegations to support any element of a breach of contract claim. Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 15 of 16 PageID: 41 12 Although Plaintiff claims he is owed $7,930.11 for an unpaid invoice, see Compl. [ECF No. 1-1] at 7, Plaintiff does not allege that he and FEMA are parties to a contract. The only contract that Plaintiff appears to reference is SFIP RL00059454, to which Plaintiff is not a named insured. Tolson is the only named insured on SFIP RL00059454, and, therefore, only Tolson can bring a claim against FEMA for damages under the policy. See 42 U.S.C. § 4072; see also Ervinwood Marine, 750 F. Supp. at 280. Additionally, only Tolson is authorized to receive payments from FEMA for any loss claimed under the SFIP. See 44 C.F.R. § 61, Appendix A(1)(VII)(M). Finally, the Complaint does not allege the Plaintiff performed any activity as part of a contractual obligation he had with FEMA. Because Plaintiff’s Complaint fails to state a claim for breach of contract, it should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). CONCLUSION For the reasons set forth above, Defendant FEMA respectfully requests dismissal of the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dated: Newark, New Jersey June 16, 2017 Respectfully submitted, WILLIAM E. FITZPATRICK Acting United States Attorney By: /s/ Christopher D. Amore CHRISTOPHER D. AMORE Assistant United States Attorney Attorneys for Defendant FEMA Case 1:17-cv-03734-RBK-JS Document 5-1 Filed 06/16/17 Page 16 of 16 PageID: 42 WILLIAM E. FITZPATRICK Acting United States Attorney CHRISTOPHER D. AMORE Assistant United States Attorney 970 Broad Street Newark, New Jersey 07102 Tel.: (973) 645-2757 Fax: (973) 297-2010 christopher.amore@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MARC EVANGELISTA, Plaintiff, v. DAN TOLSON and the FEDERAL EMERGENCY MANAGEMENT AGENCY, Defendants. HON. ROBERT B. KUGLER Civil Action No. 17−03734 (RBK) (JS) [PROPOSED] ORDER This matter having been raised before the Court on the motion of Defendant Federal Emergency Management Agency (“FEMA”), for an order dismissing Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the Court having considered the matter, the pleading herein, and the submissions of the parties on the motion, IT IS on this day of , 2017, ORDERED that Plaintiff’s complaint as to FEMA is dismissed with prejudice. _____________________________________________ HONORABLE ROBERT B. KUGLER, U.S.D.J. Case 1:17-cv-03734-RBK-JS Document 5-2 Filed 06/16/17 Page 1 of 1 PageID: 43 Case 1:17-cv-03734-RBK-JS Document 5-3 Filed 06/16/17 Page 1 of 3 PageID: 44 Case 1:17-cv-03734-RBK-JS Document 5-3 Filed 06/16/17 Page 2 of 3 PageID: 45 Case 1:17-cv-03734-RBK-JS Document 5-3 Filed 06/16/17 Page 3 of 3 PageID: 46 EXHIBIT A Case 1:17-cv-03734-RBK-JS Document 5-4 Filed 06/16/17 Page 1 of 2 PageID: 47 FD 00 79 (09-99) 000561(5535:0):95004.412 OPEN COVERAGE VERIFICATION SHEET DATE: 01/25/2016 POLICY NUMBER: RL00059454 LOSS DATE: 01/25/2016 POLICY PERIOD: 06/18/2015 TO 06/18/2016 FICO NO.: EFFECTIVE DATE: 06/18/2015 EXAMINER: hgo POLICY TYPE: Dwelling RATING METHOD: Manual AGENT: McMahon Agency Inc PO Box 239 Ocean City, NJ 08226-0239 Agent Phone: 609-399-0060 ADJUSTER: Administrative Strategies, LLC Date Assigned: INSURED: Dan Tolson 3605 Pembroke Lane Ocean City, NJ 08226-1815 Home Phone: 609-226-0080 Work Phone: PROPERTY LOCATION: 3605 Pembroke Ln Ocean City, NJ 08226-1815 COVERAGE LIMIT DEDUCTIBLE RESERVE PAYMENT BUILDING $ 250,000 $ 5,000 $ 16,000.00 0 CONTENTS $ 100,000 $ 5,000 $ 6,000.00 0 ICC PROPERTY INFORMATION BUILDING DESCRIPTION: Single family Three or more floors CONTENTS LOCATION: Basement and above ground level PROGRAM: Regular RISK ZONE: A07 COMMUNITY NO: 3453100004D ELEVATED: Y LOWEST FLOOR ELEV: BASE FLOOD ELEV: CONSTRUCTION DATE: 05/01/1949 POST FIRM: N OBSTRUCTION CODE: 50 OCCUPANCIES/UNITS: 2 PRINCIPLE RESIDENCE: CONDO ID: YNot A Condo REPLACEMENT VALUE: $ 350,00 THIRD PARTY INFORMATION CONTACT INFORMATION Siwell, Inc. Dba Capital Mort Its Successors And/or Assigns Po Box 6338 Lubbock, TX 79493-6338 Dan Tolson Home Phone: 609-226-0080 Work Phone: 732-673-8853 Cell Phone: REMARKS Major flood damage to insured's property. Insured Because the loss was reported 30 or more days after the event we have reserved rights. Please talk with the insured to determine if there is a valid reason for the late report and comment in your Prelim. 0 PRIOR LOSS HISTORY ATTACHED National Flood Insurance Program U.S. Department of Homeland Security P.O. Box 2965 Shawnee Mission, KS 66201-1365 *0 5 5 3 5 6 0 0 0 * Case 1:17-cv-03734-RBK-JS Document 5-4 Filed 06/16/17 Page 2 of 2 PageID: 48 EXHIBIT B Case 1:17-cv-03734-RBK-JS Document 5-5 Filed 06/16/17 Page 1 of 2 PageID: 49 Case 1:17-cv-03734-RBK-JS Document 5-5 Filed 06/16/17 Page 2 of 2 PageID: 50 EXHIBIT C Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 1 of 6 PageID: 51 Insured: Dan Tolson Policy Number: RL00059454 Agency: McMahon Agency Inc Policy Type: Dwelling; REPETITIVE LOSS PROGRAM Property: 3605 Pembroke Ln Ocean City, NJ 082261815 US Effective Date: 6/18/2017 Task List Claim Summary Building Contents Current Reserves: $0.00 Closed $0.00 Closed Paid Losses: $26,890.94 $7,333.01 Page 1 of 5View Claim Summary 6/8/2017https://www.nfipservices.com/net/ViewClaimSummary.aspx?lossFileNumber=209048 Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 2 of 6 PageID: 52 10/11/2016 12:00 AM Loss Payment $10,719.43 Issued check #0003014963; Requested 10/11/2016; Paid to: Dan Tolson & Siwell, Inc. Dba Capital Mort; Mailed to: Dan Tolson & Siwell, Inc. Dba Capital Mort; Address: 3605 Pembroke Lane; Ocean City NJ 082261815 ;Check status: Cleared System User 582431 Page 2 of 5View Claim Summary 6/8/2017https://www.nfipservices.com/net/ViewClaimSummary.aspx?lossFileNumber=209048 Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 3 of 6 PageID: 53 Page 3 of 5View Claim Summary 6/8/2017https://www.nfipservices.com/net/ViewClaimSummary.aspx?lossFileNumber=209048 Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 4 of 6 PageID: 54 2/29/2016 12:00 AM Loss Payment $16,171.51 Issued check #0002270236; Requested 02/29/2016; Paid to: Dan Tolson & Siwell, Inc. Dba Capital Mort; Mailed to: Dan Tolson & Siwell, Inc. Dba Capital Mort; Address: 3605 Pembroke Lane; Ocean City NJ 082261815 ;Check status: Cleared System User 536720 2/29/2016 12:00 AM Loss Payment $7,333.01 Issued check #0002270237; Requested 02/29/2016; Paid to: Dan Tolson; Mailed to: Dan Tolson; Address: 3605 Pembroke Lane; Ocean City NJ 082261815 ;Check status: Cleared System User 536720 Page 4 of 5View Claim Summary 6/8/2017https://www.nfipservices.com/net/ViewClaimSummary.aspx?lossFileNumber=209048 Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 5 of 6 PageID: 55 Back Help Refresh Create Log Note Upload Documents National Flood Services © 2013 | Terms of Use | Privacy Statement Page 5 of 5View Claim Summary 6/8/2017https://www.nfipservices.com/net/ViewClaimSummary.aspx?lossFileNumber=209048 Case 1:17-cv-03734-RBK-JS Document 5-6 Filed 06/16/17 Page 6 of 6 PageID: 56 CERTIFICATE OF SERVICE I, Christopher Amore, hereby certify that the Defendant FEMA’s Notice of Motion to Dismiss, Brief in Support of the Defendants’ Motion to Dismiss with supporting Declaration and Exhibits, and Proposed Order were served on the following parties on or about June 16, 2017, by causing a copy of the above to be sent via Electronic Case Filing and First Class Mail to the following: Mr. Marc Evangelista Mr. Dan Tolson 1216 Lincoln Avenue 3605 Penbrooke Lane Pleasantville, NJ 08232 Ocean City, NJ 08226 Plaintiff Pro Se Defendant Pro Se Dated: Newark, New Jersey June 16, 2017 /s/ Christopher D. Amore CHRISTOPHER D. AMORE Assistant United States Attorney Case 1:17-cv-03734-RBK-JS Document 5-7 Filed 06/16/17 Page 1 of 1 PageID: 57