The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
On January 29, 2001, plaintiffs Edward R. Smith and Debra L.
Smith, husband and wife, sued the Federal Emergency Management
Agency ("FEMA") and its Director Joe M. Allbaugh*fn1 under
their Standard Flood Insurance Policy and the National Flood
Insurance Act, 42 U.S.C. § 4001 et seq., claiming that
defendants failed to provide coverage and indemnification in the
amount of $150,000 for damage sustained to their home in a flood
that occurred on September 16, 1999. Plaintiffs also seek a
declaratory judgment against the defendants, stating they have
suffered damages of $150,000.
On June 25, 2001, defendants filed a motion to dismiss
plaintiffs' complaint, arguing that the court lacks jurisdiction
to hear plaintiffs' claims because the plaintiffs failed to file
their lawsuit within the one year statute of limitations and (2)
plaintiffs failed to provide the necessary documentation to
support their claim of damages. Defendants also argue that, to
the degree that plaintiffs seek to recover costs, interest, and
attorneys' fees, that claim should be dismissed as the National
Flood Insurance Act does not provide compensation for such
items. Plaintiffs respond that they filed their complaint within
the one-year statutory deadline and that they provided FEMA
sufficient documentation under their policy and the National
Flood Insurance Act. Therefore, they argue that the court has
jurisdiction to hear their
claims. However, plaintiffs failed to address defendants
argument that plaintiffs are not entitled to costs, interest,
and attorneys' fees.
The court will grant in part and deny in part defendants'
motion to dismiss as follows. One, because plaintiffs filed
their complaint within the one-year statutory deadline as
established in 42 U.S.C. § 4072, the complaint was timely filed
under the appropriate statute of limitations. Two, because
plaintiffs filed a proof of loss statement together with
sufficient documentation, the court can exercise jurisdiction
over plaintiffs' claims. Three, because plaintiffs failed to
address defendants' motion to dismiss with respect to
defendants' argument that costs, interest, and attorneys' fees
are not recoverable under the National Flood Insurance Act, the
court will grant this aspect of the defendants' motion to
dismiss as unopposed. Fourth, because a motion for summary
judgment is premature as the parties have had no opportunity to
take discovery, the court will deny without prejudice
defendants' motion, in the alternative, for summary judgment.
Defendants' have brought their motion to dismiss pursuant to
Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure ("Rule 12(b)(1)" and "Rule 12(b)(6)") without
explaining how each of these rules applies to this case.
However, at the conclusion of their motion, defendants assert
that "this Court . . . [should] dismiss plaintiffs' [c]omplaint
in its entirety for lack of subject matter jurisdiction under
Rules 12(b)(1) and 12(b)(6) . . ., because plaintiffs failed to
follow the jurisdictional prerequisites for filing suit."
Df.'s Motion at 16 (emphasis added). Given that defendants are
challenging this court's jurisdiction to hear plaintiffs'
complaint and are relying on factual allegations outside
plaintiffs' complaint, the court will treat defendants' motion
as a factual challenge to this court's subject matter
jurisdiction pursuant to Rule 12(b)(1). See Gould Electronics,
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)) ("A Rule 12(b)(1) motion may be treated as
either a facial or factual challenge to the court's subject
matter jurisdiction."). "In reviewing a factual attack, the
court may consider evidence outside the pleadings." Id.
(citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.
With respect to the one-year statute of limitations,
defendants argue that, under Section 4072 of the National Flood
Insurance Act, 42 U.S.C. § 4072 ("Section 4072"), a claimant
must bring suit in federal court "within one year after the date
of mailing of notice of disallowance or partial disallowance by
the Director." The parties agree that defendants mailed the
notice denying their claim on January 29, 2000 and plaintiffs
did not file their lawsuit until January 29, 2001. Defendants
argue that, given that plaintiffs failed to file their claim by
11:59 p.m. on January 28, 2001, the plaintiffs failed to file
"within one year," and, therefore, their claim is time-barred.
Defendants further state that plaintiffs have raised no facts
that the statute of limitations was tolled or that
FEMA waived the one-year statute of limitations.
In response, plaintiff argue that the word "within" in Section
4072 is ambiguous, and, therefore, should be construed against
FEMA, the insurer in this case. Furthermore, plaintiffs argue
that, even if January 28, 2001 was the last day to file their
complaint, pursuant to Rule 6(a) of the Federal Rules of Civil
Procedure ("Rule 6(a)"),*fn3 the permissible filing date
should be Monday, January 29, 2001.
No court has interpreted the meaning of "within" in Section
4072 or has determined whether Rule 6(a) is applicable to
Section 4072's statute of limitations. However, the Third
Circuit in Frey V. Woodard, 748 F.2d 173 (3d Cir. 1984) found
that the method of computation provided in Rule 6(a) for
determining the end of the statutory limitations period was
applicable to the Federal Tort Claims Act, 28 U.S.C. § 2401(b)
("FTCA"). The FTCA directs that a claim must be brought "within
two years after such claim accrues" or the cliam is barred. The
Frey court dismissed as "frivolous" the government's argument
that application of Rule 6(a) expanded the jurisdiction of the
federal courts in violation of the government's sovereign
immunity as well as Rule 82 of the Federal Rules of Civil
Procedure.*fn4 Consequently, the Frey court found that
Rule 6(a) which "exclud[es] at the front end of the day of the
critical event, and exclud[es] at the back end Saturdays,
Sundays, and legal holidays," Frey, 748 F.2d at 175, should be
applied in determining the end of a statutory limitations
The court finds that, for the same reasons enumerated by the
Frey court, Rule 6(a) applies in computing when the statute of
limitations expires under Section 4072. Given that the parties
agree that the plaintiffs were mailed the notice of denial on
January 29, 2000, the date the statute of limitations began to
run in this case, plaintiffs had until January 29, 2001 to file
their complaint. See Rule 6(a) (excluding "the day of the act,
event, or default from which the designated period of time
begins to run"); Trueman v. Lekberg, No. CIV.A. 97-1018, 1998
WL 181816, *5 n. 13 (E.D.Pa. April 16, 1998) (noting that FTCA
statutory limitation period ends on the two-year anniversary of
the day the claim began to accrue). Because plaintiffs filed
their complaint on January 29, 2001, the court concludes that
plaintiffs filed their complaint within the mandated statutory
period of time. Therefore, the defendants' motion to dismiss on
the grounds of untimeliness will be denied.
Plaintiffs seemingly admit that (1) they did not provide bills
and receipts regarding repairs made for prior flood damage and
that (2) their flood insurance policy includes Article 9,
paragraph J(5) quoted above. However, plaintiffs argue the
policy does not make it a condition precedent that receipts and
bills for prior losses be submitted prior to receiving benefits
under the policy. Plaintiffs argue that because the policy must
be construed in their favor the policy should not be read to
make receipts and bills for prior losses a condition precedent
for receiving coverage.
The court rejects defendants' jurisdictional argument.
Defendants confuse the requirement under Rule 8(a) of the
Federal Rules of Civil Procedure that a complaint set forth a
short and plain statement of the claim so as to put defendants
on notice of the claim, with the requirement under plaintiffs'
policy that they "document the loss." Although defendants may
ultimately prevail in showing that plaintiffs have not provided
sufficient documentation to prove the losses identified in the
proof of loss statement submitted by plaintiffs — including,
perhaps, the lack of bills or other documentation that repairs
were in fact made to the property damaged by an earlier flood —
an issue not before this court at this time, the mere failure to
submit such bills and receipts with the proof of loss does not
raise a jurisdictional barrier to plaintiffs' claim warranting
dismissal of the plaintiffs' complaint at this point in the
litigation.*fn5 Nor do the cases cited by the defendants
stand for the proposition that a claim should be dismissed if
the claimant fails to provide receipts and bills regarding prior
losses for which FEMA had compensated those claimants. See,
e.g., Gowland v. Aetna, 143 F.3d 951, 954 (5th Cir. 1998)
(finding plaintiff failed to file a timely proof of loss);
Forman v. FEMA, 138 F.3d 543, 545 (5th Cir. 1998) (finding
plaintiffs' failure to assign a value to claimed losses was
grounds for dismissal); Wagner v. Director, Federal Emergency
Management Agency, 847 F.2d 515, 520-521 (9th Cir. 1988)
(finding plaintiffs who failed to file proofs of loss forms and
plaintiffs who filed untimely proof of loss forms are barred
from commencing any action based on those claims); Maloney v.
FEMA, Civ. A. No. 96-1879, 1996 WL 626325 *4 (E.D.La. Oct. 24,
1996) (finding plaintiffs failure to file timely proof of loss
form barred his claim); Holeman v. Director, FEMA, 699 F. Supp. 98,
99 (N.D.Tex. 1988) (finding plaintiffs failure to provide
signed, sworn statement with proof of loss form barred his
claim); Cohen v. Federal Insurance Administration, 654 F. Supp. 824,
827 (E.D.N.Y. 1986) (finding plaintiffs failure to file
timely proof of loss form barred his claim). In fact, the court
has found no cases that held that failure to provide bills and
receipts for prior losses is grounds for dismissal of a claim.
Finally, defendants also argue that plaintiffs are not
entitled to recover costs, interest and attorney fees.
Defendants argue that prejudgment and post-judgment interest
awards as well as attorneys fees are not permissible for
plaintiffs seeking recovery under the National Flood Insurance
Act. Because plaintiffs have failed to file any ...