MEMORANDUM & ORDER On November 6, 2017, the Court entered an order dismissing pro se plaintiff Mohammed Keita’s original complaint in this action, under 28 U.S.C. §1915(e)(2)(B)(ii), but with leave to file a rule-compliant amended complaint. Dkt. 23. He then filed the instant amended complaint, naming the Federal Emergency Management Agency (“FEMA”), State Farm Fire Insurance (“State Farm”), JPMorgan Chase Bank (“Chase”), Commerce Bank, N.A. (“Commerce”), and the City of New York (the “City”) as defendants. Am. Compl., Dkt. 25. On September 6, 2018, the amended complaint was similarly dismissed. Dkt. 38. Sensing the spark of a claim, the Second Circuit remanded Keita’s claims against FEMA and State Farm. Dkt. 41. This decision considers only FEMA’s motion to dismiss this action and only as to itself, which, for the following reasons, is granted in part and denied in part. A motion for summary judgment by codefendant State Farm will be addressed in a separate decision. Background1 Plaintiff complains that his dwelling, located at 738 Seaview Avenue on Staten Island (the “Seaview property”), suffered a substantial loss from flooding on April 16, 2007. Am. Compl. at 5. Specifically, Keita claims “[t]he dwelling was over flooded, foundation/retaining walls cracked, flood viod (sic) created on the footing of floor and exposing soil to erosion, black mold, meldew (sic), heating system in basement, hot water system, loss of rental income, and loss of used of over 50 percent as a two family dwelling.” Id. (errors in the original). According to Keita, these losses totaled no less than $500,000. Id. FEMA and State Farm, as is obvious from the filing of this lawsuit, saw it differently. In a downward spiral from Keita’s loss estimate, as best can be discerned from plaintiff’s complaint, State Farm and FEMA recognized the loss at $34,518.60. Id. Plaintiff alleges, however, that FEMA and State Farm, collectively, approved a loss payment of only $17,259.30, and that he actually received only $8,629.65. Id. All that is clear in the pleadings from these numbers is that Keita does not believe either FEMA or State Farm paid him for the true value of his loss and, as a result, his first cause of action claims FEMA and State Farm breached their flood and home owner insurance contracts with him and engaged in “fraud and manipulation.” Id. The jumble of numbers Keita provides on this score remains a jumble of numbers. Racing ahead five years in time, and in a factual non-sequitur, Keita gripes about FEMA’s failure to pay a property damage claim in the aftermath of Hurricane Sandy, the super storm that inundated metropolitan New York City and left nearly two dozen dead on Staten Island. Am. Compl. 6. As best understood, Keita’s grievance rests on FEMA’s rejection of his claim under the National Flood Insurance Program (“NFIP”) for damage to property that is presumably the Seaview property. The haggling over that claim would generate a formal letter from Keita’s then-attorney to FEMA demanding payment for the Seaview property loss. See Ex. A Letter from Timothy M. Belknap to FEMA dated February 2016, Dkt. 25 at 3. In further support of his claim against FEMA for the loss, but in derogation of any responsibility by State Farm with respect to that loss, Keita attaches a letter he received from State Farm, dated February 1, 2012, indicating that any NFIP claim or coverage previously under State Farm would be transferred to NFIP Direct, the federal government’s flood insurance program, effective February 28, 2012, eight months before Sandy struck. Ex. B Letter from State Farm to Keita, Dkt. 25 at 4. Amidst the swirl of charges and counter charges Keita lobs at FEMA, he apparently did receive a disaster award for something, which is revealed, left handedly, by his gripe that FEMA, he says, is “garnishing” his SSI benefits seeking repayment of a $31,000 award it previously had made to him. Am. Compl. 6. Based on Keita’s opposition brief, it appears that the award, Keita reveals in opposing this motion, is related to a property located at 863 Father Capodanno Boulevard also on Staten Island (the “Capodanno property”). Pl.’s Opp’n Mem. 4, Dkt. 68.2 Lastly, in a totally conclusory catch-all broadside and without a hint of factual support, Keita appears to allege that FEMA and State Farm Insurance engaged in “[d]iscrimination under Stafforf (sic) Act.” Am. Compl. at 6. Standard of Review “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Although a court “must accept as true all material factual allegations in the complaint,” it must not draw inferences favorable to the party asserting jurisdiction, J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), and it may consider evidence outside the pleadings, Makarova, 201 F.3d at 113. Subject matter jurisdiction is a threshold issue, so when a defendant moves to dismiss under both Rules 12(b)(1) and 12(b)(6), the court must address the 12(b)(1) motion first. See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481 (2d Cir. 2002). In similar fashion, Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” This rule does not compel a litigant to supply “detailed factual allegations” in support of his claims for relief, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965); see also In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). “Nor does a complaint suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 555 U.S. at 557, 127 S.Ct. at 1966). A complaint rooted entirely in conjecture and speculation is worthless. See Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (noting that “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss” (internal quotation marks omitted)). To survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. at 1974). This “plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). Then, as noted earlier, when considering a Rule 12(b)(6) motion, a court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008). The Court, furthermore, is mindful that “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct., 167 L.Ed.2d 1081 (2007) (internal quotation marks and citations omitted). If a liberal reading of the complaint “gives any indication that a valid claim might be stated,” the Court must grant leave to amend the complaint. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). As the circumstances here permit the Court to resolve this matter on Rule 12 grounds, the Court foregoes any discussion of defendants’ alternative strategy to pursue summary judgment. Discussion 1. Programmatic Framework for Disaster Relief Put in the spotlight by Keita’s complaint, the National Flood Insurance Act (“NFIA”) was enacted to address the unavailability of flood insurance from private insurers and the necessity for such insurance to address personal hardships and economic distress arising from flooding. See 42 U.S.C. §4001(a). Explicitly, NFIA’s purpose is to provide “a reasonable method of sharing the risk of flood losses…through a program of flood insurance…and…making flood insurance coverage available on reasonable terms and conditions to persons who have need for such protection.” Id. Consequently, Congress established the National Flood Insurance Program (“NFIP”) to serve this purpose. 42 U.S.C. §4001(b), (c), (d). Since 1979, responsibility for administering NFIP lies with FEMA under presidential delegation. See Exec. Order No. 12127, 44 Fed. Reg. 19,367 (Apr. 3, 1979). In accord with that mandate, FEMA has administered the National Flood Insurance Fund (“NFIF”), which includes “cost incurred in the adjustment and payment of any claims for losses.” 42 U.S.C. §4017. NFIP is administered by the government with private industry assistance. See 42 U.S.C. §§4071-72. FEMA promulgated several regulations under NFIA to dictate the operation of NFIP, see 44 C.F.R. §§59-80 (2021), including the Standard Flood Insurance Policy (“SFIP”) for a dwelling, see 44 C.F.R. §Pt. 61, App. A(1) (2021). In 1983, FEMA created the Write-Your-Own (“WYO”) program, authorizing private insurers to issue SFIPs funded by the NFIF. See 44 C.F.R. §62.23 (2021). WYO companies, like State Farm, sell SFIPs under NFIA and relevant regulations. Id. They act as FEMA’s fiscal agents for these purposes. 44 C.F.R. §62.23(g) (2021). In this convention, the Stafford Act and relevant regulations authorize and prescribe the federal response to major disasters. See 42 U.S.C. §5121 et seq. With particularity, the Stafford Act provides that “[i]n any major disaster, the President may…direct any Federal agency…to…provide accelerated Federal assistance and Federal support where necessary to save lives, prevent human suffering, or mitigate severe damage.” 42 U.S.C. §5170(a). Further, [T]he President…may provide financial assistance, and…direct services, to individuals and households…who, as a direct result of a major disaster, have necessary expenses and serious needs in cases in which the individuals and households are unable to meet such expenses or needs through other means. 42 U.S.C. §5174(a)(1). Specifically, “[t]he President may provide financial assistance for…the repair of owner-occupied private residences, utilities, and residential infrastructure…damaged by a major disaster….” 42 U.S.C. §5174(c)(2)(A)(i). The President has delegated this disaster response authority and responsibility to FEMA. Exec. Order No. 12148, 44 Fed. Reg. 43,239 (July 20, 1979), superseded in part by Exec. Order No. 12919, 59 Fed. Reg. 29,525 (June 3, 1994). Empowered by the Stafford Act, FEMA promulgated regulations setting the parameters for the provision of Individual Assistance, including assistance to individuals and households (“IA” grants). See 44 C.F.R. §§206.110-119 (2021). Notably, in accord with this regulatory framework, “[a] person receiving Federal assistance for a major disaster or emergency shall be liable to the United States to the extent that such assistance duplicates benefits available to the person for the same purpose from another source.” 42 U.S.C. §5155(c). 2. Subject Matter Jurisdiction “[T]he United States may not be sued without its consent and…[that] consent is a prerequisite for jurisdiction.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 205, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983)). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Sovereign immunity generally makes the United States (i.e., FEMA3) absolutely immune from suit. In line with the mandate this doctrine imposes, FEMA contends Keita’s lawsuit seeking to recover damages for its failure to honor his claim under his flood insurance policy is not subject to the limited sovereign immunity waiver under NFIA, and thus, the Court lacks jurisdiction due to sovereign immunity. Def’s Mem., at 19-20. From a practical and important perspective, it must be understood, “[m]oreover, waivers of sovereign immunity must be ‘unequivocally expressed’ in statutory text, and cannot simply be implied.” Adeleke, 355 F.3d at 150 (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S. Ct. 1011, 1014, 117 L.Ed.2d 181 (1992)). “Waivers of sovereign immunity should be strictly construed in favor of the [g]overnment so as not to extend the waiver beyond what Congress intended.” Mendez & DeJesus Grocery Store v. U.S. Dep’t of Agric., No. 97-CV-1099, 1997 WL 250458, at *2 (S.D.N.Y. May 12, 1997) (citing Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct. 1811, 1820, 75 L.Ed.2d 840 (1983)). “[T]he plaintiff bears the burden of establishing that [his] claims fall within an applicable waiver.” Makarova, 201 F.3d at 113. Although NFIA contains a partial waiver of sovereign immunity for suits against FEMA for denial of insurance coverage under 42 U.S.C. §4072, “courts across the country…have consistently held that this provision does not permit WYO program policyholders to sue FEMA when the WYO company denies their claim.” Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717, 724 (E.D.N.Y. 2015) (collecting cases). “In other words, §4072 extends a waiver of sovereign immunity exclusively…where FEMA directly denies an application, and does not extend to suits involving the actions of WYO companies, [like State Farm], in issuing, adjusting, or disallowing claims.” Id. (internal quotation marks omitted); Kronenberg v. Fidelity Nat’l Ins. Co., No. 07-CV-4877, 2008 WL 631277, at *1 (E.D. La. Mar. 5, 2008)). The regulations implementing NFIA also support this conclusion. Pursuant to 44 C.F.R. §62.23(d), “[a] WYO Company issuing flood insurance coverage” is responsible for “arrang[ing] for the adjustment, settlement, payment and defense of all claims arising from policies of flood insurance it issues under the Program, based upon the terms and conditions of the Standard Flood Insurance Policy.” Further,§62.23(g) states that WYO companies are solely responsible for their obligations to their insured under any flood insurance policies issued under agreements entered into with the Administrator, such that the Federal Government is not a proper party defendant in any lawsuit arising out of such policies.” (emphasis added)). Turning to the 2007 flood claim, it was Keita’s WYO company State Farm, not FEMA, that issued Keita’s SFIP policy and adjusted Keita’s 2007 flood loss claim. See Sadler Decl.
