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Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 1 of 6 PageID #: 1498

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
IN RE HURRICANE SANDY CASES
:
:
-------------------------------------------------------------- x
DEBORAH RAIMEY and LARRY RAISFELD
:
:
Plaintiffs,
:
:
WRIGHT NATIONAL FLOOD INSURANCE
:
CO.
:
:
Defendant.
:
----------------------------------------------------------------x
THIS DOCUMENT APPLIES TO:
:
:
ALL SANDY CASES WITH FEMA
:
DEFENDANTS 1
:
----------------------------------------------------------------x

14 MC 41

14 CV 461 (JFB)(SIL)(GRB)

NOTICE OF MOTION
PLEASE TAKE NOTICE that pursuant to Rule 72 of the Federal Rules of Civil
Procedure, on the Memorandum of Law in Support of the Federal Emergency Management
Agencys Motion to Set Aside Paragraph 3 of the Pretrial Order dated November 7, 2014,
defendant W. Craig Fugate, in his capacity as Administrator of the Federal Emergency
Management Agency, by his attorney Loretta E. Lynch, United States Attorney for the Eastern
District of New York, Orelia E. Merchant, Assistant United States Attorney, of counsel, moves
this Honorable Court to set aside Paragraph 3 of the Memorandum and Order dated November 7,
2014 (14-CV-461, Docket Entry No. 82 & 14-MC-41, Docket Entry No. 637), at 27, 3
(Paragraph 3 of the November 7th Order), on submission, before the Honorable Joseph F.
Bianco, at the United States Federal Courthouse, Eastern District of New York, 2100 Federal
Plaza, Central Islip, New York 11722, for an Order withdrawing Paragraph 3 of the November

The Federal Emergency Management Agency and various other officers and agencies of the
United States (collectively FEMA), are named as defendants in approximately 90 of the above1

Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 2 of 6 PageID #: 1499


7th Order, which applies to defendants in all Hurricane Sandy cases.
Specifically, FEMA moves this court to set aside the following portion of the
November 7th Order:
3. Within thirty days of this Order, defendants in all Hurricane Sandy cases shall
provide plaintiffs with copies of all reports described in CMO 1 not previously
produced plus any drafts, redlines, markups, reports, notes, measurements,
photographs and written communications related thereto prepared, collected or
taken by any engineer, adjustor or other agent or contractor affiliated with any
defendant, relating to the properties and damage at issue in each and every case,
whether such documents are in the possession of defendant or any third party.
Paragraph 3 of the November 7th Order (emphasis in original).
Alternatively, FEMA requests that the Court modify the order to: (1) only permit
the parties to inquire into the existence of documents maintained by a nonparty engineer, adjuster
or contractor affiliated with any party, relating to the properties and damage at issue in a case,
where there is a prior showing of an earlier conclusion different from the one that was the basis
of the whole or partial denial of a claim; and/or (2) limit the scope Paragraph 3 of the November
7th Order to only those Hurricane Sandy flood insurance cases in which engineering reports were
provided by U.S. Forensic.
Dated: Brooklyn, New York
November 21, 2014
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:

__________/s/_________________
ORELIA E. MERCHANT
Assistant U.S. Attorney
Tel.: (718) 254-6058
Email: orelia.merchant@usdoj.gov

referenced actions. See Attached List of Cases with FEMA defendants.


2

Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 3 of 6 PageID #: 1500


To:

Judge Joseph F. Bianco (VIA ECF & Hard Copy)


Magistrate Judges Brown, Pollak and Reyes (VIA ECF & Hard Copy)
All parties (VIA ECF)

Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 4 of 6 PageID #: 1501


ATTACHMENT
Case Name
III, Duncan A. & Fraser, Margaret Glenda v. NFIP
Ahearn, Sean v. NFIP
Annarelli, Richard v. NFIP
Apdiroglu, Ismet v. NFIP
Auletta, Anthony & Magna v. NFIP
Baldeo, Thakur v. NFIP
Benn, Michael & Kimberly v. NFIP
Bicocchi, Nancy v. Fugate
Braverman, Ivan v. Johnson
Bryan, Olayemi v. NFIP
Buttaro, Lucia v. Fugate
Campbell, Roger & McNamee, Kathleen v. NFIP
Campisi, Christine v. NFIP
Cardona, John
Carney, Martin & Diana v. NFIP
Carter, George v. NFIP et al
Christiano, James & Meg v. FEMA
Chu, Christine v. NFIP
Cossuto Mark & Susan v. Fugate
Crystal, Regina v. NFIP
Cuttler, Henry & Carolyn v. NFIP
D'Amaro, Frank and Anna v. NFIP
Dante, Joseph & Gusmorino v. NFIP
DiFranco, Olivia v. Traveler's Indemnity & Johnson
Duhl, Jeffrey v. FEMA
Ellis, Dwayne & Vernadee v. NFIP
Erber, Barry & Susan v. NFIP
Erle, Steven & Kim v. Fugate
Esposito, Richard & Dorothy
Esposito, Robert and Ann v. NFIP
Fallon, James & Teresa v. NFIP
Fetter, Agnes v. NFIP
Foster, Thomas & Coraline v. All State & FEMA
Fraser, Duncan & Maureen
Fugelsang, Kathleen v. NFIP
Galimi, Karen & Borrello, John v. Fugate
Galimi, Karen v. Fugate

Docket Number
USDC EDNY 13-6580
USDC EDNY 13-6573
USDC EDNY 14-0287
USDC EDNY 13-6620
USDC EDNY 13-6572
USDC EDNY 13-6579
USDC EDNY 14-0153
USDC EDNY 14-5189
USDC EDNY 14-3592
USDC EDNY 13-6584
USDC EDNY 14-2569
USDC EDNY 14-0154
USDC EDNY 14-0334
USDC EDNY 14-607
USDC EDNY 14-3425
USDC EDNY 13-6591
USDC EDNY 14-4311
USDC EDNY 13-6576
USDC EDNY 14-6356
USDC EDNY 14-2767
USDC EDNY 13-6577
USDC EDNY 14-383
USDC EDNY 13-6297
USDC EDNY 14-0511
USDC EDNY 14-2568
USDC EDNY 14-3367
USDC EDNY 13-6592
USDC EDNY 14-5285
USDC EDNY 14-1970
USDC EDNY 14-4627
USDC EDNY 14-0155
USDC EDNY 13-6593
USDC EDNY 14-1750
USDC EDNY 13-6578
USDC EDNY 13-6373
USDC EDNY 14-3371
USDC EDNY 14-3412

Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 5 of 6 PageID #: 1502


Giordano, Donna v. Johnson
Governale, Lynann v. Johnson
Greco, George & Daniela v. NFIP
Gyasi, Louisa & Twenehoah, Amo
Halligan, Thomas & Irene v. NFIP
Hernandez, Israel & Maria v. NFIP
Hoban, Vincent & Maureen
Iodice, Lucille & Louis v. NFIP
Jacobs, Steven v. FEMA
Johnson, George & Patricia v. NFIP
Keating, John v. NFIP
Lefkowitz, Barry & Bonnie v. NFIP
Little, Josephine v. NFIP
Losito, Debora & Anthony v. NFIP
Maijeh, Chucks v. NFIP
Manzo, Charles v. FEMA
Mayrose, Arthur & Eileen v. NFIP
McKeever, Maura v. NFIP
Meeks, Spencer & Packman, Michelle v. NFIP
Meyerson, Melvin & Barbara v. FEMA
Milashouskas, Dennis & Patricia v. Johnson
Monks, Richard W. v. Fugate
Morales, Marie v. Johnson
Moran, John & Teresa v. NFIP
Mulholland, Catherine v. NFIP
Murphy, Joan v. NFIP
Murphy, Kevin & Jeane v. NFIP

USDC EDNY 14-2577


USDC EDNY 14-2622
USDC EDNY 13-6595
USDC EDNY 13-6581
USDC EDNY 13-6596
USDC EDNY 13-6599
USDC EDNY 13-6600
USDC EDNY 13-6582
USDC EDNY 13-5870
USDC EDNY 13-6602
USDC EDNY 13-6583
USDC EDNY 13-6585
USDC EDNY 13-6603
USDC EDNY 13-6586
USDC EDNY 14-1251
USDC EDNY 13-5867
USDC EDNY 14-0156
USDC EDNY 14-134
USDC EDNY 13-6605
USDC EDNY 14-1796
USDC EDNY 14-2532
USDC EDNY 14-6061
USDC EDNY 14-1422
USDC EDNY 13-6587
USDC EDNY 14-1250
USDC EDNY 13-6757
USDC EDNY 13-6606

Case 2:14-cv-00461-JFB-SIL Document 91 Filed 11/21/14 Page 6 of 6 PageID #: 1503

Murphy, Michael & Mary Ann v. Johnson


Naas, Peter & Elcyv. NFIP
Oceana Condominium NO One v. FEMA.
Olowe, Ifedola O. v. NFIP
O'Sullivan, Daniel v. Fugate
Passavia, Vincent JR v. Fugate & NFIP
Perricone, Joanna v. NFIP
Planz, Charles & Geraldine v. Fugate
Ramirez, Marilyn & Lopez, Hyacith & Vera, Percival v. NFIP
Regan, Matthew G. and Elizabeth M. v. NFIP
Ryan, Gerard v. NFIP
Shoshanna, Mordechai v. NFIP
Skibinski, Veronica v. Johnson
Sweeney, James v. FEMA
Thies, Allison and Arthur v. NFIP

USDC EDNY 14-3145


USDC EDNY 13-6607
USDC EDNY 14-2535
USDC EDNY 13-6608
USDC EDNY 14-5380
USDC EDNY 14-6340
USDC EDNY 14-1253
USDC EDNY 14-5808
USDC EDNY 13-6609
USDC EDNY 14-1254
USDC EDNY 13-6611
USDC EDNY 14-4426
USDC EDNY 13-7367
USDC EDNY 14-385
USDC ED NY 136363

Viktorenkov, Slava v. NFIP


Viktorenkov, Slava v. NFIP
Walthers, Maureen v. NFIP
Walthers, Maureen v. NFIP
Wernick, Gale v. NFIP
Werther, Thomas & Patricia v. NFIP
Yohay, Julie v. FEMA
Zwibel, David v. FEMA

USDC EDNY 14-2635


USDC EDNY 14-2635
USDC EDNY 13-6613
USDC EDNY 13-6613
USDC EDNY 13-6590
USDC EDNY 13-6614
USDC EDNY 14-1592
USDC EDNY 13-6532

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 1 of 13 PageID #: 1504

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
:
IN RE HURRICANE SANDY CASES
:
:
-------------------------------------------------------------- x
DEBORAH RAIMEY and LARRY RAISFELD
:
:
Plaintiffs,
:
:
WRIGHT NATIONAL FLOOD INSURANCE
:
CO.
:
:
Defendant.
:
----------------------------------------------------------------x
THIS DOCUMENT APPLIES TO:
:
:
ALL SANDY CASES WITH FEMA
:
1
DEFENDANTS
:
----------------------------------------------------------------x

14 MC 41

14 CV 461 (JFB)(SIL)(GRB)

FEDERAL EMERGENCY MANAGEMENT AGENCYS


MEMORANDUM IN SUPPORT OF MOTION TO SET ASIDE
THE PORTION OF THE COURTS NOVEMBER 7, 2014 ORDER
APPLICABLE TO ALL HURRICANE SANDY CASES

LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201

ORELIA E. MERCHANT
Assistant U.S. Attorney
(Of Counsel)
1

The Federal Emergency Management Agency and various other officers and agencies of
the United States (collectively FEMA), are named as defendants in approximately 90 of the
above-referenced actions. See Attached List of Cases with FEMA defendants.

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 2 of 13 PageID #: 1505

PRELIMINARY STATEMENT
W. Craig Fugate, in his capacity as Administrator of the Federal Emergency Management
Agency, by and through his attorney, Loretta E. Lynch, United States Attorney, Eastern District
of New York, Orelia E. Merchant, Assistant United States Attorney, of counsel, files this
Memorandum in Support of FEMAs Motion to Set Aside the Portion of the Courts November
7, 2014 Memorandum and Order in Deborah Raimey and Larry Raisfeld v. Wright National
Flood Insurance Co., No. 14-CV-461 (JFB)(SIL)(GRB), Docket Entry No. 82, that was spread to
all In Re: Hurricane Sandy Cases, 14-MC-41 (CLP-GRB-RER), Docket No. 637 (November
7th Order). 2
The Federal Emergency Management Agency and various other officers and agencies of
the United States (collectively FEMA), are named as defendants in approximately 90 of the
above-referenced actions. However, FEMA is not a party in the Raimey case.
In response to an unsuccessful mediation in the Raimey case, plaintiffs counsel filed a
Motion to Set Discovery Schedule and Set for Trial. See November 7th Order at 3. In its
motion, plaintiffs Raimey and Raisfeld informed the court for the first time that they had
evidence of an engineering report that provided a conclusion contrary to the report upon which
Wright National Flood Insurance Company (Wright) based its denial of much of their flood
insurance claim. Id. Wright responded to said motion. Id. After review of the submissions of
the parties, the Court ordered an evidentiary hearing, and on October 16, 2014, at an evidentiary
hearing with plaintiffs Raimey and Raisfeld represented, this Court heard testimony from three
2

It is unclear whether the filing of a motion for reconsideration of the Case Management
Orders (CMOs) and discovery rulings in the Hurricane Sandy cases pursuant to Local Civil
Rule 6.3 stays the computation of time for an appeal of an order of a magistrate judge pursuant to
Rule 72 of the Federal Rules of Civil Procedure (Rule 72). Consequently, in addition to filing
this motion to set aside Paragraph 3 of the November 7th Order, FEMA simultaneously filed a
Local Civil Rule 6.3 Motion for Reconsideration today, and it is currently pending before
Magistrate Judge Brown.
2

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 3 of 13 PageID #: 1506

witnesses. Id. Following the hearing, the parties, plaintiff Raimey and Raisfeld and defendant
Wright, were permitted to submit post-hearing briefs and supporting materials. 3 Id.
On November 7, 2014, as part of its memorandum and order deciding issues presented by
the parties in the Raimey case, the Court issued an order that applied to defendants in all
Hurricane Sandy cases. Id. at 27 (emphasis in original). Specifically, the Court ordered
3. Within thirty days of this Order, defendants in all Hurricane Sandy cases shall
provide plaintiffs with copies of all reports described in CMO 1 not previously
produced plus any drafts, redlines, markups, reports, notes, measurements,
photographs and written communications related thereto prepared, collected or
taken by any engineer, adjustor or other agent or contractor affiliated with any
defendant, relating to the properties and damage at issue in each and every case,
whether such documents are in the possession of defendant or any third party.
Id. (emphasis in original) (Paragraph 3 of the November 7th Order).
As discussed below, FEMA objects to Paragraph 3 of the November 7th Order and
respectfully requests that the Court set aside this portion of the November 7th Order.

To the

extent that this paragraph impacts all Hurricane Sandy defendants, not just the parties in the
Raimey case, the Paragraph 3 of the November 7th Order is clearly erroneous.
First, FEMA did not have an opportunity to be heard and weigh in on the issues
addressed at the evidentiary hearing in the Raimey case. Second, the actions of one engineering
firm in one particular case cannot be imputed on all engineers, and certainly not all adjusters,
involved in investigating Hurricane Sandy claims. Third, as a practical matter, FEMA does not
have the authority to directly obtain the materials described in Paragraph 3 of the November 7th
Order from third party independent adjusters and engineers. Moreover, attempts to comply with
Paragraph 3 of the November 7th Order would prove costly to FEMA and may further delay

The evidence adduced at the October 16, 2014 evidentiary hearing is summarized in the
November 7th Order, and in the interest of brevity, that summary is incorporated by reference and
not restated here. See November 7th Order at 4-14.
3

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 4 of 13 PageID #: 1507

resolution of cases. Accordingly, FEMA requests that the Court set aside Paragraph 3 of the
November 7th Order or, in the alternative, FEMA requests that the Court modify its scope.
APPPLICABLE STANDARD OF REVIEW
Rule 72 of the Federal Rules of Civil Procedure and the Federal Magistrates Act, 28
U.S.C. 631-639, provide the standard from a district courts review of a nondispositive order of a
magistrate judge. When a pretrial matter not dispositive of a partys claim or defense is referred
to a magistrate judge to hear and decide, the magistrate judge conducts required proceedings and,
when appropriate, issues a written order stating the decision. See Fed. R. Civ. P. 72(a). A party
may serve and file objections to the order within 14 days after being served with a copy of the
order, and the district judge in the case must consider timely objections and modify or set aside
any part of the order that is clearly erroneous or is contrary to law. Id. Clear error may be
found if, on the entire evidence, the reviewing court is left with the definite and firm
conviction that a mistake has been committed. See Mental Disability Law Clinic v. Hogan, 739
F. Supp. 2d 201, 203 (E.D.N.Y. 2010) (ILG)(JO) (quoting Easley v. Cromartie, 532 U.S. 234,
235 (2001)). An order is contrary to law when it fails to apply or misapplies relevant statues,
case law or rules of procedure. In re: Vitamin C Antitrust Litigation: Animal Science Products,
Inc., v. Hebei Welcome Pharmaceutical Co. Ltd., 2012 WL 5879149, at * 1 (E.D.N.Y. Nov. 21,
2012) (BMC)((JO) (citation omitted).

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 5 of 13 PageID #: 1508

ARGUMENT
I.
PARAGRAPH 3 OF THE NOVEMBER 7th ORDER IS CLEARLY ERRONEOUS
BECAUSE PLAINTIFFS MOTION DID NOT SEEK TO ENLARGE THE SCOPE OF
DISCOVERY IN ALL HURRICANE SANDY CASES AND, AS A RESULT, ALL
OTHER DEFENDANTS WERE NOT AFFORDED DUE PROCESS ON THIS ISSUE
FEMA, and participating Write-Your-Own (WYO) carrier defendants (collectively
other defendants), were not parties to the discovery dispute raised by plaintiffs in the Raimey
case. The discovery dispute and the Courts resolution of it turned on the specific facts,
decisions, and discovery tactics of the parties in the Raimey case. Other defendants had no
opportunity to participate at the evidentiary hearing during which George Hernemar, the
engineer who examined plaintiffs property, testified that the peer review he obtained from U.S.
Forensic colleague Michael Garove was standard. See November 7th Order at 13 (quoting Hrg
Tr. at 58). Counsel for the other defendants were not given the opportunity to dispute or probe
Hernemars characterizations or cross-examine Hernemar and Garove about their experience,
their specific knowledge of peer review across the engineering field, or their training. Further,
the other defendants could not offer their own witnesses to educate or inform the Court on the
appropriate conduct of peer review among engineers.
Without the opportunity to hear opinions of experienced engineers from other firms in
other Hurricane Sandy cases, the Court was left with the testimony of Hernemar, which it found
to be at times, confused. See November 7th Order at 7. The testimony offered at the hearing in
Raimey was relied upon by the court to represent the experience and practice of hundreds of
engineers, and even extrapolated to independent adjusters, employed by numerous firms that
provided their services to plaintiffs and defendants in other Hurricane Sandy cases. Importantly,
Paragraph 3 of the November 7th Order greatly increases the automatic disclosure obligations of
5

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 6 of 13 PageID #: 1509

FEMA and other defendants, overlooking whether such a broad and burdensome requirement is
appropriate in all Hurricane Sandy cases and without giving all defendants, not just the defendant
in the Raimey case, the opportunity to be heard on this issue.
II.
PARAGRAPH 3 OF THE NOVEMBER 7th ORDER ERRONEOUSLY AND
UNJUSTLY APPLIES THE CONDUCT OF ONE ENGINEERING FIRM TO
SUGGEST SYSTEMIC MISCONDUCT BY ALL ENGINEERING FIRMS
WITHOUT A GOOD CAUSE SHOWING, THE CONDUCT OF ONE ENGINEERING
FIRM SHOULD NOT ENLARGE AUTOMATIC DISCOVERY
OBLIGATIONS OF DEFENDANTS IN OTHER CASES
Paragraph 3 of the November 7th Order overlooks the diversity of facts and circumstances
among individual Hurricane Sandy flood litigation cases.

The Courts order extrapolates

evidence uncovered in the Raimey case to all cases (wind and flood) and imputes the conduct of
U.S. Forensic and the testimony of one engineer, George Hernemar, to all engineering firms and
to all independent adjustors.
Prior to the Courts entry of Paragraph 3 of the November 7th Order across all Hurricane
Sandy cases (wind and flood), the procedural history of this matter was confined to a discovery
dispute between two parties, in a flood related case, over a third partys engineering report.
Defendant Wright, a participating WYO carrier, and plaintiffs Deborah Raimey and Larry
Raisfeld were the only parties to the discovery process that preceded the dispute. They were the
only parties with the opportunity to move the Court for additional discovery in their case; to
oppose such discovery; to participate in an evidentiary hearing explicitly focused on U.S.
Forensic Report No. 12.22.1304 and [its] various incarnations, see November 7th Order at 4; to
offer witness testimony on the practice of peer review; and to file post-hearing briefs prior to
the Courts November 7, 2014 memorandum and order.

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 7 of 13 PageID #: 1510

The November 7, 2014 Order is best suited to ensure fairness to plaintiffs who actually
show good cause for additional discovery and who establish in the record of their case the
occurrence of obfuscating tactics. The Raimey plaintiffs supported their request for additional
discovery with their photograph of a report that allegedly directly contradicted the factual
observations and conclusions of the reports produced by defendant Wright.

An alleged

contradiction between the reports produced by Wright and the report photographed by the
plaintiffs showed good cause for the Court to inquire into the peer review process utilized in that
individual case. However, similar facts have not been asserted by plaintiffs in all the Hurricane
Sandy cases to which Paragraph 3 of the November 7th Order now applies.
Accordingly, FEMA respectfully requests that the court reconsider and modify Paragraph
3 of the November 7th Order to permit parties to only inquire into the existence of documents
maintained by a nonparty engineer, adjuster or contractor affiliated with any party, relating to the
properties and damage at issue in a case, where there is a prior showing of an earlier conclusion
different from the one that was the basis of the whole or partial denial of a claim, such as the
photographed report provided in the Raimey case.
III.
PARAGRAPH 3 OF THE NOVEMBER 7th ORDER IS
UNDULY BURDOMESOME AND CONTRARY TO LAW
BECAUSE FEMA LACKS CONTROL OVER THIRD PARTIES
Evidence of a partys control has been interpreted to mean evidence that the party has
the legal right, authority, or practical ability to obtain by virtue of its relationship with the party
in possession of the evidence. In re: Vitamin C Antitrust Litigation: Animal Science Products,
Inc., v. Hebei Welcome Pharmaceutical Co. Ltd., 2012 WL 5879149, at * 2 (citation omitted).
The law is clear that [i]t is the discovering partys burden to demonstrate that the requested

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 8 of 13 PageID #: 1511

entity has either the legal right or practical ability to obtain the documents in question from their
custodian. Id.
Magistrate Judge Brown mistakenly concluded that because the defendant in Raimey did
not assert that they lacked the legal right and/or practicable ability to obtain documents from US
Forensic that all other defendants have the ability to obtain documents from third party
engineers, adjusters, or contractors such as US Forensics. See November 7th Order at 19 (There
has been no claim here, nor does one seem likely, that defendant lacked the legal right and/or
practical ability to obtain these documents from U.S. Forensic.). However, this has not been
established as it relates to FEMA, and other WYO carriers, and this is simply not the case.
Given that FEMA, and the participating WYO carriers, do not have direct access to draft,
redlined, and marked-up versions of engineering reports generated during the adjustment
process, taking efforts to obtain these materials would come at a greatand, as mentioned,
largely unnecessarycost to the public fisc. FEMA does not have a contractual relationship
with engineering firms, such as U.S. Forensic, that sometimes are hired to help investigate flood
claims. FEMA also does not have a contractual relationship with independent adjusting firms
that investigate claims. FEMA only contracts with its Direct Servicing Agent (DSA) to
manage the claims handling process.

Thus, FEMA has no power to direct adjusting or

engineering firms involved in NFIP claims investigations to provide pre-final reports and related
materials.
As the administrator of the National Flood Insurance Program (NFIP), FEMA will
incur all defendants costs in procuring materials to comply with Paragraph of the November 3,
2014 Order, directly in cases it is a direct party to and indirectly through the efforts of WYO
carriers in cases they are defending. Under the NFIP, [s]pecial allocated loss expenses

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 9 of 13 PageID #: 1512

including litigation expensesare reimbursed to WYO carriers. See 44 C.F.R. pt. 62, App. A,
III(c)(3). Thus, the WYO carriers costs of complying with the November 7th Order will be
passed on to FEMA, adding additional and, FEMA submits, unnecessary litigation costs that will
be borne by the federal government.
Here, FEMA and other defendants were not given the opportunity to deny that they had
position, custody or control of documents prior to the November 7th Order. This is a clear error
and contrary to law. See In re: Vitamin C Antitrust Litigation: Animal Science Products, Inc., v.
Hebei Welcome Pharmaceutical Co. Ltd., 2012 WL 5879149, at * 3 (Court set aside magistrate
judges order insofar as they found control of a contractor work papers and compelled a party to
produce them).
CONCLUSION
FEMA respectfully requests that the Court set aside Paragraph 3 of the November 7th
Order. FEMA reiterates that it did not have a chance to weigh in on the issues addressed at the
Raimey hearing and respectfully asserts that, given its inability to obtain the materials described
in Paragraph 3 of the November 7th Order, the Courts order is clearly erroneous, excessively
broad and unduly burdensome.
Alternatively, FEMA requests that the Court modify the order to: (1) only permit the
parties to inquire into the existence of documents maintained by a nonparty engineer, adjuster or
contractor affiliated with any party, relating to the properties and damage at issue in a case,
where there is a prior showing of an earlier conclusion different from the one that was the basis
of the whole or partial denial of a claim; and/or (2) limit the scope Paragraph 3 of the November
7th Order to only those Hurricane Sandy flood insurance cases in which engineering reports were
provided by U.S. Forensic.

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 10 of 13 PageID #: 1513

Dated:

Brooklyn, New York


November 21, 2014
LORETTA E. LYNCH
United States Attorney
Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201
By:

To:

/s Orelia E. Merchant
ORELIA E. MERCHANT
Assistant U.S. Attorney
Tel.: (718) 254-6528

Magistrate Judges Brown, Pollak and Reyes (VIA ECF & Hard Copy)
All parties (VIA ECF)

10

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 11 of 13 PageID #: 1514

ATTACHMENT
Case Name
III, Duncan A. & Fraser, Margaret Glenda v. NFIP
Ahearn, Sean v. NFIP
Annarelli, Richard v. NFIP
Apdiroglu, Ismet v. NFIP
Auletta, Anthony & Magna v. NFIP
Baldeo, Thakur v. NFIP
Benn, Michael & Kimberly v. NFIP
Bicocchi, Nancy v. Fugate
Braverman, Ivan v. Johnson
Bryan, Olayemi v. NFIP
Buttaro, Lucia v. Fugate
Campbell, Roger & McNamee, Kathleen v. NFIP
Campisi, Christine v. NFIP
Cardona, John
Carney, Martin & Diana v. NFIP
Carter, George v. NFIP et al
Christiano, James & Meg v. FEMA
Chu, Christine v. NFIP
Cossuto Mark & Susan v. Fugate
Crystal, Regina v. NFIP
Cuttler, Henry & Carolyn v. NFIP
D'Amaro, Frank and Anna v. NFIP
Dante, Joseph & Gusmorino v. NFIP
DiFranco, Olivia v. Traveler's Indemnity & Johnson
Duhl, Jeffrey v. FEMA
Ellis, Dwayne & Vernadee v. NFIP
Erber, Barry & Susan v. NFIP
Erle, Steven & Kim v. Fugate
Esposito, Richard & Dorothy
Esposito, Robert and Ann v. NFIP
Fallon, James & Teresa v. NFIP
Fetter, Agnes v. NFIP
Foster, Thomas & Coraline v. All State & FEMA
Fraser, Duncan & Maureen
Fugelsang, Kathleen v. NFIP
Galimi, Karen & Borrello, John v. Fugate
Galimi, Karen v. Fugate
Giordano, Donna v. Johnson

Docket Number
USDC EDNY 13-6580
USDC EDNY 13-6573
USDC EDNY 14-0287
USDC EDNY 13-6620
USDC EDNY 13-6572
USDC EDNY 13-6579
USDC EDNY 14-0153
USDC EDNY 14-5189
USDC EDNY 14-3592
USDC EDNY 13-6584
USDC EDNY 14-2569
USDC EDNY 14-0154
USDC EDNY 14-0334
USDC EDNY 14-607
USDC EDNY 14-3425
USDC EDNY 13-6591
USDC EDNY 14-4311
USDC EDNY 13-6576
USDC EDNY 14-6356
USDC EDNY 14-2767
USDC EDNY 13-6577
USDC EDNY 14-383
USDC EDNY 13-6297
USDC EDNY 14-0511
USDC EDNY 14-2568
USDC EDNY 14-3367
USDC EDNY 13-6592
USDC EDNY 14-5285
USDC EDNY 14-1970
USDC EDNY 14-4627
USDC EDNY 14-0155
USDC EDNY 13-6593
USDC EDNY 14-1750
USDC EDNY 13-6578
USDC EDNY 13-6373
USDC EDNY 14-3371
USDC EDNY 14-3412
USDC EDNY 14-2577
11

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 12 of 13 PageID #: 1515

Governale, Lynann v. Johnson


Greco, George & Daniela v. NFIP
Gyasi, Louisa & Twenehoah, Amo
Halligan, Thomas & Irene v. NFIP
Hernandez, Israel & Maria v. NFIP
Hoban, Vincent & Maureen
Iodice, Lucille & Louis v. NFIP
Jacobs, Steven v. FEMA
Johnson, George & Patricia v. NFIP
Keating, John v. NFIP
Lefkowitz, Barry & Bonnie v. NFIP
Little, Josephine v. NFIP
Losito, Debora & Anthony v. NFIP
Maijeh, Chucks v. NFIP
Manzo, Charles v. FEMA
Mayrose, Arthur & Eileen v. NFIP
McKeever, Maura v. NFIP
Meeks, Spencer & Packman, Michelle v. NFIP
Meyerson, Melvin & Barbara v. FEMA
Milashouskas, Dennis & Patricia v. Johnson
Monks, Richard W. v. Fugate
Morales, Marie v. Johnson
Moran, John & Teresa v. NFIP
Mulholland, Catherine v. NFIP
Murphy, Joan v. NFIP
Murphy, Kevin & Jeane v. NFIP

USDC EDNY 14-2622


USDC EDNY 13-6595
USDC EDNY 13-6581
USDC EDNY 13-6596
USDC EDNY 13-6599
USDC EDNY 13-6600
USDC EDNY 13-6582
USDC EDNY 13-5870
USDC EDNY 13-6602
USDC EDNY 13-6583
USDC EDNY 13-6585
USDC EDNY 13-6603
USDC EDNY 13-6586
USDC EDNY 14-1251
USDC EDNY 13-5867
USDC EDNY 14-0156
USDC EDNY 14-134
USDC EDNY 13-6605
USDC EDNY 14-1796
USDC EDNY 14-2532
USDC EDNY 14-6061
USDC EDNY 14-1422
USDC EDNY 13-6587
USDC EDNY 14-1250
USDC EDNY 13-6757
USDC EDNY 13-6606

12

Case 2:14-cv-00461-JFB-SIL Document 91-1 Filed 11/21/14 Page 13 of 13 PageID #: 1516

Murphy, Michael & Mary Ann v. Johnson


Naas, Peter & Elcyv. NFIP
Oceana Condominium NO One v. FEMA.
Olowe, Ifedola O. v. NFIP
O'Sullivan, Daniel v. Fugate
Passavia, Vincent JR v. Fugate & NFIP
Perricone, Joanna v. NFIP
Planz, Charles & Geraldine v. Fugate
Ramirez, Marilyn & Lopez, Hyacith & Vera, Percival v. NFIP
Regan, Matthew G. and Elizabeth M. v. NFIP
Ryan, Gerard v. NFIP
Shoshanna, Mordechai v. NFIP
Skibinski, Veronica v. Johnson
Sweeney, James v. FEMA
Thies, Allison and Arthur v. NFIP

USDC EDNY 14-3145


USDC EDNY 13-6607
USDC EDNY 14-2535
USDC EDNY 13-6608
USDC EDNY 14-5380
USDC EDNY 14-6340
USDC EDNY 14-1253
USDC EDNY 14-5808
USDC EDNY 13-6609
USDC EDNY 14-1254
USDC EDNY 13-6611
USDC EDNY 14-4426
USDC EDNY 13-7367
USDC EDNY 14-385
USDC ED NY 136363

Viktorenkov, Slava v. NFIP


Viktorenkov, Slava v. NFIP
Walthers, Maureen v. NFIP
Walthers, Maureen v. NFIP
Wernick, Gale v. NFIP
Werther, Thomas & Patricia v. NFIP
Yohay, Julie v. FEMA
Zwibel, David v. FEMA

USDC EDNY 14-2635


USDC EDNY 14-2635
USDC EDNY 13-6613
USDC EDNY 13-6613
USDC EDNY 13-6590
USDC EDNY 13-6614
USDC EDNY 14-1592
USDC EDNY 13-6532

13