Derek Christopherson v. Robert Bushner
33f4th495
| 8th Cir. | 2022Background
- In March 2017 Derek and Jennifer Christopherson bought a house in Tecumseh, MO, reviewed FEMA flood documents, and obtained a CoreLogic report stating no LOMA/LOMC existed and the property was outside the SFHA.
- Sellers represented the property was not in a FEMA flood zone and not at risk. Forty days after moving in (April 2017) a flood destroyed the house.
- FEMA records showed a March 11, 2010 LOMA that placed the structure in the SFHA, and an April 8, 2010 LOMA that removed that designation (the "2010 Change"). Plaintiffs allege FEMA or STARR (a FEMA contractor comprised of Stantec, Dewberry, and Atkins) made the 2010 Change and later a 2018 revision that was backdated.
- Plaintiffs sued the sellers, FEMA, Stantec, Dewberry, Atkins, and other parties, pleading Count II against "FEMA, STARR, John Doe" for negligent/fraudulent misrepresentation and under the FTCA.
- Stantec and Atkins moved to dismiss under Rule 12(b)(6) (Dewberry separately moved), arguing among other defenses federal-law preemption via the federal-contractor doctrine; the district court granted dismissal as to Stantec, Atkins, and Dewberry. The Christophersons appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FTCA applicability against contractor defendants | FTCA can provide a remedy for harms caused by FEMA/STARR activity | Contractors are not federal employees; FTCA applies only to government employees | Dismissed: Complaint fails to allege the contractors were federal employees, so no FTCA claim stated |
| Negligent misrepresentation (Missouri law) | STARR/contractors supplied false flood-map information on which Christophersons relied | Defendants acted as STARR; complaint lacks specific acts, role, or communications by each defendant | Dismissed: Complaint fails plausibly to allege key elements (speaker role, intentional targeting, justifiable reliance) against Atkins, Stantec, Dewberry |
| Fraudulent misrepresentation / Rule 9(b) particularity | Fraud claim arises from false map-related representations and backdating | Multiple defendants lumped as "STARR" without identification of who made what representation | Dismissed: Complaint fails Rule 9(b) by not specifying time, place, content, or which defendant made the alleged misrepresentations |
| Federal-contractor defense / Boyle preemption | Plaintiffs dispute preemption or argue the defense does not apply here | Defendants invoke Boyle federal-contractor defense to preempt state-law claims | Court did not reach merits of Boyle defense because pleading fails; noted Boyle inquiry is fact-intensive and may require evidence beyond pleadings |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (establishes federal-contractor preemption/defense framework)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state plausible claim; courts ignore naked conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112 (Mo. banc 2010) (elements for Missouri negligent misrepresentation)
- Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003 (8th Cir. 2015) (fraud claims against multiple defendants must identify each defendant's role)
- In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059 (8th Cir. 2017) (need factual enhancement; identify individuals, acts, conversations to state claim)
- Graves v. 3M Co., 17 F.4th 764 (8th Cir. 2021) (applies Boyle-style contractor-defense analysis)
- Schulte v. Conopco, Inc., 997 F.3d 823 (8th Cir. 2021) (de novo review of Rule 12(b)(6) dismissal)