Derek Christopherson v. Robert Bushner ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2441
___________________________
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
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: February 17, 2022
Filed: May 2, 2022
____________
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 court 1 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 Busher, 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.”
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
2
A 100-year flood is a flood with a 1 in 100 chance of being equaled or
exceeded in any year. During such a flood, the flood line is the maximum elevation
that water would reach, and the flood zone is everything that would be underwater
at that point. The SFHA label designates this 100-year flood zone.
-2-
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
-3-
“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 (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 (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
3
In this opinion, this Court refers to the Amended Complaint as “the
Complaint.”
-4-
678. “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 (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 (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).
-5-
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 its partners “work as one in a
common vision and purpose to reduce the loss of life and
property caused by floods. STARR is helping FEMA and
its partners create a flood-savvy nation, one community at
a time . . . . through leveraging ongoing partnerships and
inspiring local action to mitigate flood risk.”
Second: “the STARR Defendants acted in conjunction with FEMA agents, and as
the general contractor for FEMA Region VII (including Missouri), in creating
[flood] maps,” including “Flood Insurance Rate Maps” (“FIRMs”) and the
-6-
“Standard Flood Hazard Determination Form” (“SFHDF”), both of which FEMA
“publishes.” Third: “the STARR Defendants specifically provided hazard
identification and mapping in connection with FEMA, and acted as general
contractor for FEMA, as will be detailed herein.”
These obtuse statements say nothing about STARR’s or these Defendants’
specific roles in assessing flood risks, let alone in assessing flood risk for the
Christopherson’s property. Worse, the Complaint does not elaborate how the
Defendants “act[] in conjunction with FEMA . . . in creating [flood] maps.” The
Complaint never delivers its promised “detail[s] herein.”
Even assuming that, for the purposes of Rule 8(a), attributing acts to STARR
would suffice to state a claim against any one of that entity’s constituent partners—
the actual Defendants—based on these three anemic passages, the Complaint still
fails because it contains at best naked assertions and conclusory statements about
STARR’s role here. It does not satisfy the first, third, or fourth elements of negligent
misrepresentation.
On the first element of negligent misrepresentation: the Complaint does not
allege STARR supplied the information “in the course of [its] business,”
Renaissance Leasing, 322 S.W.3d at 134. Indeed, it never states what particular
business STARR was conducting when any information was supplied, let alone how
the information was supplied “in the course of” that business. Nor does the
Complaint identify, in any detail, what information STARR allegedly provided.
Instead, the Complaint provides only repeated, naked assertions that “FEMA and/or
STARR” made the 2010 and 2018 Changes.
“Plaintiffs need not provide specific facts in support of their allegations,” but
they must provide “sufficient factual information . . . to raise a right to relief above
a speculative level.” Propane Tank I, 860 F.3d at 1070 (quotations omitted). For
example, “list[ing] relevant individuals, acts, and conversations” may provide
sufficient “‘factual content’ to support ‘the reasonable inference that the defendant
-7-
is liable for the misconduct alleged,’” but mere “‘naked assertion[s] devoid of further
factual enhancement’” do not. Id. (quoting Iqbal, 556 U.S. at 678); see id.(contrasting conclusory general statements—which formed only naked assertions—
with allegations of particular communications and assurances defendants made to
one another in a price-fixing scheme—which stated a claim); see also In re Pre-
Filled Propane Tank Antitrust Litig., 893 F.3d 1047, 1057 (8th Cir. 2018)
(affirming Rule 12(c) dismissal where plaintiffs failed to “list relevant individuals,
acts, and conversations” to provide adequate “factual content”). Here, the
Christophersons identify no particular acts by STARR, in the course of its business
as a FEMA contractor, that support a reasonable inference that STARR “is liable for
the misconduct alleged.” See Propane Tank I, 860 F.3d at 1070; see also Iqbal, 556
U.S. at 683 (finding plaintiff failed to “nudge his claim . . . across the line from
conceivable to plausible” where defendants could “not be held liable unless they
themselves acted” with discriminatory intent—regardless of their subordinates’
actions—but plaintiff’s “only factual allegation” did not plausibly suggest this
(quotations omitted)). Without further factual enhancement, the Christophersons’
naked assertions do not suffice. See Propane Tank I, 860 F.3d at 1070.
On the third element: the Complaint does not adequately allege STARR
“intentionally provided” “the information . . . for the guidance of limited persons in
a business transaction,” Renaissance Leasing, 322 S.W.3d at 134. The Complaint
contains only repeated, conclusory statements that STARR was involved in the 2010
Change. See Am. Compl. ¶ 49 (“The 2010 Change was based on a LOMC/LOMA
by FEMA and/or STARR.”). It does not provide any further detail about STARR’s
awareness of, let alone participation in, the 2010 LOMAs. Those documents
themselves are on FEMA letterhead, tell recipients to contact the “FEMA Map
Assistance Center” for additional information, and are signed by FEMA’s “Acting
Chief” of the “Engineering Management Branch” “Mitigation Directorate.”
Indeed, the Complaint frames FEMA—not STARR—as the decisionmaker. See
Am. Compl. ¶ 93 (“At all pertinent times mentioned herein, FEMA was responsible
for creating, maintaining, promulgating, and distributing its flood maps, including
the SFHDF and FIRM, and ensuring the data therein was accurate for the public.”).
-8-
To be sure, a defendant may be liable where it knew of an upcoming
transaction between a third-party seller and buyer, and knew the buyer “w[as]
relying on [its] representations.” Renaissance Leasing, 322 S.W.3d at 135. But the
Christophersons do not allege this. Instead, they provide only “naked assertions”
and threadbare recitals of elements supported by “conclusory statements.” Iqbal,
556 U.S. at 678; see Am. Compl. ¶ 55 (alleging, without elaboration, that “[t]he
2010 change was intentionally . . . made by FEMA and/or STARR . . . to deceive
future purchasers”—despite the fact that purchase did not occur until 2017); see also
Richardson v. BNSF Ry. Co., 2 F.4th 1063, 1069 (8th Cir. 2021) (finding complaint
failed to state claim for intentional infliction of emotional distress where “allegations
of expletive laced language and threats of physical violence” were “too general to
warrant anything more than speculation that [defendant’s] conduct” met state-law
outrageousness requirement for the claim (quotations omitted)).
On the fourth element: the Christophersons’ own allegations preclude the
necessary inference that they “justifiably relied on the information” provided by
STARR. See Renaissance Leasing, 322 S.W.3d at 134. The Christophersons allege
that they reviewed the “FEMA flood certificate, FIRMs, [and] SFHDF”—all
documents published by FEMA. They further allege that they “relied on the official
‘Flood Certificate’ from Corelogic, which . . . specifically indicated there had been
no [LOMA] or [LOMC] at any time,” and that they “precisely verified the Home”
“had never received any changes” to its flood-risk “expectancy by way of any
LOMA/LOMC.”
With these allegations, the Christophersons aver that: (1) the documents they
reviewed came either from FEMA or Corelogic, not STARR, and (2) they had no
knowledge of the 2010 Change at the time of the purchase. Their only justifiable
reliance must be premised on documents from FEMA or Corelogic. However, once
again, they provide no factual details about STARR’s role in helping produce these
documents. Vague, naked assertions and conclusory statements about STARR’s
involvement do not suffice. See Iqbal, 556 U.S. at 678. Moreover, even if STARR
played a role in the 2010 Change, the Christophersons do not allege they relied on
-9-
the LOMAs, which form that change, because they explicitly state Corelogic found
no LOMAs at the time of the purchase. Thus, the Complaint fails to state this
element as well.
The Complaint fails to state a claim for negligent misrepresentation against
Atkins, Dewberry, and Stantec because the Christophersons provide “only naked
assertions devoid of further factual enhancement” for three elements. See Iqbal, 556
U.S. at 678. At base, negligent misrepresentation focuses on misdeeds by “the
speaker” of the information, but the Christophersons do not plausibly allege that
STARR spoke any of the allegedly tortious information. See Renaissance Leasing,
322 S.W.3d at 134 (framing elements in terms of “the speaker” and “the hearer”).
Insofar as Count II is for negligent misrepresentation against these three Defendants,
the Complaint fails “to state a claim to relief that is plausible on its face,” Iqbal, 556
U.S. at 678.
The Complaint similarly fails to state a claim for fraudulent misrepresentation
against these Defendants because it does not plead with particularity which
defendant made what representation to the Christophersons, let alone the nature of
any Defendant’s participation in a specific misrepresentation. See Fed. R. Civ. P.
9(b) (requiring a plaintiff “state with particularity the circumstances constituting
fraud” when “alleging fraud”); Streambend Properties II, LLC v. Ivy Tower
Minneapolis, LLC, 781 F.3d 1003, 1013 (8th Cir. 2015) (requiring under Rule 9(b)
that “[w]here multiple defendants are asked to respond to allegations of fraud,” the
complaint “inform each defendant of the nature of his alleged participation in the
fraud”—that is, “specify the time, place, and content of” each defendant’s false
representations, “including when the acts occurred, [and] who engaged in them”
(quotations omitted)); see also Renaissance Leasing, 322 S.W.3d at 131-32 (listing
elements of fraudulent misrepresentation, including a false representation, and “the
speaker’s knowledge of [that representation’s] falsity or ignorance of its truth”).
Lumping Atkins, Dewberry, and Stantec together under the opaque header of
“STARR” flouts Federal Rule of Civil Procedure 9(b). See Streambend Props., 781
-10-
F.3d at 1013 (holding complaint failed to state a fraud claim where it alleged multiple
defendants “took action directly or indirectly” through other entities because
“[c]asting such a broad net in pleading a claim grounded in fraud does not satisfy
Rule 9(b)” (quotations omitted)).
Finally, insofar as the Christopherson seek to recover for the alleged 2018
backdating of flood-map corrections that placed the property back in the 100-year
flood zone, they also fail to state a claim for this act. The FTCA does not apply
because they do not allege these Defendants were employees of the federal
government. Neither negligent nor fraudulent misrepresentation apply because they
allege the 2018 change was a correct revision that now accurately reflects the flood
risk to their land—and do not allege they somehow relied on this 2018 change. Thus,
the Complaint fails to state any claim against Atkins, Dewberry, or Stantec.
Because the Complaint fails on its face, this Court need not conduct the
involved, multistep process of assessing whether Boyle’s federal contractor defense
extends to FEMA flood mapping. See, e.g., In re KBR, Inc., Burn Pit Litig., 744
F.3d 326, 347 (4th Cir. 2014) (explaining Boyle’s “three-step process to determine
whether federal law preempt[s] state law”); id. at 346-51 (applying process to create
test for FTCA combatant-activities-contractor defense); Saleh v. Titan Corp., 580
F.3d 1, 6-9 (D.C. Cir. 2009) (conducting similar analysis and crafting preemption
test for military-prison contractors); Badilla v. Midwest Air Traffic Control Serv.,
Inc., 8 F.4th 105, 127-29 (2d Cir. 2021) (applying “Boyle’s useful analytic process
for determining whether federal law preempts state-law claims against government
contractors” to air-traffic-control contractor (quotations omitted)).
Even if the defense applied, however, it would not be dispositive on the
limited record presented because it requires: a federal entity, acting with discretion,
delegate a specific act to the contractor; the contractor undertake that specific act as
instructed by the entity; and the contractor warn of any risks associated with the act
and known to it but not the entity. See, e.g., Boyle, 487 U.S. at 512 (“Liability for
design defects in military equipment cannot be imposed, pursuant to state law, when
-11-
(1) the United States approved reasonably precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were known to the supplier but
not to the United States.”); Graves v. 3M Co., 17 F.4th 764, 772 (8th Cir. 2021)
(requiring similar three elements for failure-to-warn federal contractor defense).
This fact-intensive inquiry often requires evidence well beyond the pleadings
and documents integral to them. See Graves, 17 F.4th at 772 (reviewing evidence
presented); see also Boyle, 487 U.S. at 513 (stating, that where Boyle already went
to trial, “[i]f the evidence presented in the first trial would not suffice, as a matter
of law, to support a jury verdict under the properly formulated defense,” then
judgment could be entered immediately for the contractor). Compare In re KBR,
744 F.3d at 351 (reversing district court where it “erred in resolving [federal
contractor defense] issue before discovery took place”), with Columbia Venture,
LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 831-32 (4th Cir. 2010)
(concluding—at pleading stage—that NFIA preempted suit against flood-mapping
contractor with a lone citation to Boyle, but not discussing Boyle’s analytical process,
three-element test, or emphasis on evidentiary showing).
*******
Because the Complaint fails to state a claim against Atkins, Stantec, or
Dewberry, the judgment is affirmed.
______________________________
-12-