Schmidt et al v. FedNat Insurance Company, No. 2:2019cv00041 - Document 41 (M.D. Fla. 2020)

Court Description: OPINION AND ORDER denying 35 Motion for Judgment on the Pleadings. The motion is denied as moot as to the claim for interest, which is deemed withdrawn, and denied as to the claim of attorney's fees and costs. Signed by Judge John E. Steele on 12/9/2020. (RKR)

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Schmidt et al v. FedNat Insurance Company Doc. 41 Case 2:19-cv-00041-JES-MRM Document 41 Filed 12/09/20 Page 1 of 4 PageID 188 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION ANDREW T SCHMIDT and JESSICA DUFRESNE, Plaintiffs, v. Case No: 2:19-cv-41-FtM-29MRM FEDNAT INSURANCE COMPANY, Defendant. OPINION AND ORDER This matter comes before the Court on defendant's Dispositive Motion to Dismiss Extra-Contractual Claims Under Federal Rules of Civil Procedure 12(c) (Doc. #35) filed on November 13, 2020. Plaintiffs filed a Response (Doc. #40) on December 7, 2020. In the plaintiffs one-count seek First monetary Amended damages, Complaint interest, (Doc. costs, and #14), other relief for a breach of an insurance contract issued by a WriteYour-Own Program carrier participating in the National Flood Insurance Program and sued as the fiscal agent of the United States. Defendant filed an Answer and Affirmative Defenses (Doc. #17) on April 18, 2019. The deadline to amend the pleadings expired on July 17, 2019, and was not extended by the Amended or Second Amended Case Management and Scheduling Orders. 28, 31.) (Docs. #22, The pleadings are closed. Dockets.Justia.com Case 2:19-cv-00041-JES-MRM Document 41 Filed 12/09/20 Page 2 of 4 PageID 189 Pursuant to Rule 12(c), defendant seeks to dismiss all of plaintiffs’ extra-contractual claims for attorney interest as barred and/or pre-empted by federal law. fees and A party may move for a judgment on the pleadings after the pleadings are closed. Fed. R. Civ. P. 12(c). “Judgment on the pleadings is proper when no issues of material fact exist, and the moving party is entitled to judgment as a matter of law based on the substance of the pleadings and any judicially noticed facts.” Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) (internal citation omitted). 1 In response, plaintiffs withdraw the request for an award of interest based “upon review of the authorities in Defendant’s Motion”. that the interest (Doc. #40, ¶ 5.) “no-interest against As the Eleventh Circuit has recognized rule prohibits Write-Your-Own awards companies of prejudgment administering the National Flood Insurance Program”, Newton v. Capital Assur. Co., 245 F.3d 1306, 1310 (11th Cir. 2001), the Court will deem the request for interest withdrawn and deny the motion as moot. 1 The Court notes, without further discussion, that “the requested relief is more akin to a motion to strike the request for attorney's fees and costs under Federal Rule 12(f).” Arevalo, at *3. As such, the motion must have been filed within 21 days after being served with the pleading at issue. Fed. R. Civ. P. 12(f)(2). In this case, the motion was filed more than a year and a half later. - 2 - Case 2:19-cv-00041-JES-MRM Document 41 Filed 12/09/20 Page 3 of 4 PageID 190 As to fees and costs, defendant relies on cases that pre-date Newton, and decisions in other circuits, primarily the Fifth Circuit. Plaintiffs argue in response that courts have recently found that claims for fees and costs are plausible under the Equal Access to Justice Act. See, e.g., Shapiro v. Wright Nat'l Flood Ins. Co., No. 2:19-CV-679-FTM-38MRM, 2020 WL 224538, at *4 (M.D. Fla. Jan. 15, 2020). The undersigned has also previously determined that if certain assumptions are made, where defendant seeks reimbursement for defense costs from FEMA and an arrangement exists entitling defendant to reimbursement, that “it is at least plausible at this point in the litigation that attorney's fees may be paid from federal funds by FEMA.” Arevalo v. Am. Bankers Ins. Co. of Fla., No. 2:19-CV-159-FTM-99UAM, 2019 WL 2476644, at *4 (M.D. Fla. June 13, 2019). See also Morrissey v. Wright Nat'l Flood Ins. Co., No. 5:19-CV-183-RH-MJF, 2019 WL 8063348, at *1 (N.D. Fla. Oct. 27, 2019) (citing Arevalo); Julian v. Am. Bankers Ins. Co. of Fla., No. 5:19-CV-450-RH-MJF, 2020 WL 6115151, at *1 (N.D. Fla. Jan. 14, 2020) (same). For this reason, the motion will be denied. Accordingly, it is hereby ORDERED: Defendant's Dispositive Motion to Dismiss Extra-Contractual Claims Under Federal Rules of Civil Procedure 12(c) (Doc. #35) is - 3 - Case 2:19-cv-00041-JES-MRM Document 41 Filed 12/09/20 Page 4 of 4 PageID 191 DENIED as moot as to the claim for interest, which is deemed withdrawn, and DENIED as to the claim of attorney’s fees and costs in the First Amended Complaint. DONE and ORDERED at Fort Myers, Florida, this December, 2020. Copies: Counsel of Record - 4 - 9th day of

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