McCarthy v. First Protective Insurance Company
6:17-cv-01568
M.D. Fla.Aug 31, 2017Background
- Plaintiff Brian McCarthy sued First Protective Insurance Company in federal court, asserting jurisdiction under the National Flood Insurance Act (NFIA), 42 U.S.C. § 4001.
- The Complaint did not identify a specific NFIA provision that creates a private right of action, nor allege facts supporting federal-question jurisdiction.
- The Court sua sponte reviewed jurisdictional predicates and found no properly pleaded federal question on the face of the complaint.
- The Court noted § 4001 does not create an implied private right of action and other courts have dismissed similar attempts to invoke that provision.
- The Court identified that another NFIA provision, 42 U.S.C. § 4072, can support a private cause of action but the plaintiff did not plead it.
- The Complaint also failed to plead facts necessary for diversity jurisdiction (complete diversity and amount in controversy > $75,000).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal-question jurisdiction exists under cited NFIA provision | McCarthy invoked § 4001 as the basis for federal jurisdiction | First Protective argued plaintiff failed to plead a federal cause of action (and Court scrutinized jurisdiction sua sponte) | Dismissed: § 4001 does not provide a private right of action; plaintiff failed to plead a proper federal question |
| Whether any NFIA provision pleads a federal cause of action | Plaintiff did not identify § 4072 or any other claim | Defendant (and Court) noted § 4072 can create a private right, but was not pled | Dismissed without prejudice; plaintiff may amend to plead a specific federal provision (e.g., § 4072) |
| Whether diversity jurisdiction exists | Plaintiff alleged federal jurisdiction but did not plead diversity facts | Defendant noted lack of complete diversity and no amount in controversy pleaded | Dismissed: diversity prerequisites not alleged; complaint deficient |
| Whether leave to amend should be allowed | N/A (plaintiff did not plead correctly) | N/A | Court granted leave: amend by specified deadline to cure jurisdictional defects |
Key Cases Cited
- Taylor v. Appleton, 30 F.3d 1365 (11th Cir. 1994) (federal courts exercise limited subject-matter jurisdiction)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (federal-question jurisdiction requires a federal question on the face of a properly pleaded complaint)
- Mims v. Arrow Fin. Servs., LLC, 556 U.S. 368 (2012) (federal law creates jurisdiction when it creates a private right of action and supplies substantive rules)
- Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) (courts should be reluctant to infer private rights of action not clearly provided)
- Cort v. Ash, 422 U.S. 66 (1975) (framework for determining implied private rights of action)
- Howell v. State Farm Ins. Cos., 448 F. Supp. 2d 676 (D. Md. 2006) (NFIA § 4001 does not provide a private cause of action)
- Scritchfield v. Mut. Omaha Ins. Co., 341 F. Supp. 2d 675 (E.D. Tex. 2004) (no right of action under NFIA § 4001; recognizing § 4072 as a possible private remedy)