*The HONORABLE LEONARD I. GARTH, United States

Circuit Judge for the United States Court of

Appeals for the Third Circuit, sitting by

designation.

_____________

No. 95-1743EM

_____________

Gregory Davis, Personal *

Representative of the Estate *

of Nelson Davis, Deceased, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

James Lee Witt, Director of the *

Federal Emergency Management *

Agency; Robert L. Martin, doing *

business as Hawkins Insurance *

Agency, individually, *

*

Appellees. *

_____________

Submitted: December 14, 1995

 Filed: April 10, 1996

_____________

Before FAGG, GARTH, and WOLLMAN, Circuit Judges. *

_____________

FAGG, Circuit Judge.

Nelson Davis owned and operated a small motel near Brunswick,

Missouri. Davis's motel property consisted of two separate buildings. One

building contained Davis's office and residence, and the other building had

several motel rooms. After both buildings were destroyed by a flood in

1993, Davis filed a claim for insurance benefits under his federal flood

insurance policy. The Federal Emergency Management Agency (FEMA) paid for

the damage to Davis's residence, but denied coverage for the motel

building. Davis then brought this action against FEMA. See 42 U.S.C.

§ 4072
-2-

(1988). The district court decided FEMA properly denied coverage and

granted FEMA's motion for summary judgment. Although Davis died shortly

after taking this appeal, we refer to Davis in this opinion as if death had

not occurred. See Fed. R. App. P. 43(a).

The district court concluded only one of Davis's buildings could be

insured under the terms of his policy, which provides, "Only one building

[described by the applicant] may be insured under this policy, unless

application to cover more than one building is made on a form or in a

format approved for that purpose by [FEMA]." 44 C.F.R. § 61 app. A(1)

(1993); see Davis v. Witt, 873 F. Supp. 223, 226 (E.D. Mo. 1995). Because

Davis marked a box on his application that described his property as a

single family residence, the district court decided FEMA only had to pay

for the flood damage to Davis's residence. Davis, 873 F. Supp. at 226. 

Contrary to the district court's view, Davis asserted in his

complaint and in his response to FEMA's motion for summary judgment that

he complied with the terms of his policy because an application "to cover

more than one building [was] made on a form or in a format approved for

that purpose by [FEMA]." 44 C.F.R. § 61 app. A(1) (1993). According to

the undisputed affidavit of Davis's insurance agent, Robert Martin, Martin

told a FEMA representative that Davis wanted flood insurance for both

buildings on Davis's property, the FEMA representative helped Martin

complete Davis's application form "block by block," and the representative

indicated that Davis's application would obtain coverage for both

buildings. Like FEMA's motion, the district court's summary judgment order

did not pay any attention to Davis's claim that FEMA had approved the form

Martin used to insure more than one building. Thus, we must reinstate and

remand this claim to the district court. Burke v. Warner & Swasey Co., 868

F.2d 1008, 1010 (8th Cir. 1989). We do note, however, the district court

properly decided Davis cannot recover on his reasonable expectations claim,

see Nelson v. Becton, 929 F.2d 1287, 1291 (8th Cir. 1991), or on his
-3-

claim that Martin was FEMA's agent, see 44 C.F.R. 61.5 (i) (1993). Having

reinstated Davis's federal claim, we also reinstate Davis's supplemental

state law claim against Martin. See 28 U.S.C. § 1367(c)(3) (1994).

 Accordingly, we vacate the district court's summary judgment order

and remand for further proceedings consistent with this opinion.

GARTH, Circuit Judge, concurring.

I concur in the court's opinion and write separately to express my

concern with the district court's having rendered summary judgment in this

case before it resolved the outstanding discovery matters. See, e.g., Fed.

Rule Civ. Proc. 56(f). The Supreme Court has stated: "In our view the

plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear the

burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Thus, "[s]ummary judgment may not be granted if the nonmoving

party has had inadequate time to conduct discovery." United States v.

Bliss, 667 F. Supp. 1298, 1311 (E.D. Mo. 1987).

In the instant case, although Davis had timely sought discovery, the

district court did not permit discovery to be completed prior to entering

summary judgment for FEMA. On July 11, 1994, only weeks after Davis sought

discovery, FEMA moved to stay all discovery pending the district court's

ruling on the summary judgment motion. This motion prevented the conduct

of any discovery or responses to any discovery requests until such time as

the district court ruled on the motion. Davis did the only thing he could

under the circumstances. He opposed FEMA's motion and waited for the

district court's ruling. However, the district
-4-

court never ruled on the motion to stay discovery prior to ruling on the

summary judgment motion. FEMA's motion to stay discovery was pending

before the district court for seven months prior to its summary judgment

ruling. The district court's failure to resolve the motion for stay (and

thus the issue of discovery) prior to ruling on the summary judgment

motion, was an abuse of discretion.

It may be that if discovery had been allowed to proceed, as I assume

it will proceed on remand, Davis's claims might well have been fleshed out.

An explanation, not yet afforded, could be forthcoming as to why, among

other things, Davis's insurance coverage was increased from $180,000 to

$185,000 and why FEMA accepted premiums for two and a half years for

$185,000 of coverage but now claims that only about $40,000 can be

considered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.