### *The HONORABLE LEONARD I. GARTH, United State s

Circu it Judge for the United States Court o f Appeals for the Third Circuit, sitting b y 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. On e building contained Davis's office and residence, and the other building ha d several m otel rooms. After both buildings were destroyed by a flood i n 1993, Davis filed a claim for insurance benefits under his federal flood insurance policy. The Federal Emergency Managem ent Agency (FEMA) paid for the dama ge to Davis's residence, but denied coverage for the mote l building. Davis then brought this action against FEMA. See 42 U.S.C
. § 4072

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(1988). The district court decided FEMA properly denied coverage an d 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 ha d not occurred. See Fed. R. App. P. 43(a).

The distr ict court concluded only one of Davis's buildings could be insured under the ter ms of his policy, which provides, "Only one building [descri bed by the applicant] may be insured under this policy, unles s app lication to cover more than one building is made on a form or in a format a pproved 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.
Contraryto the district court's view, Davis asserted in hi s 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 fo r that purpose by [FEMA]." 44 C.F.R. § 61 app. A(1) (1993). According to the undisputed affidavit of Davis's insurance ag ent, Robert Martin, Martin told a FEMA representative that Davis wanted flood insurance for bot h bu ildings on Davis's property, the FEMA representative helped Marti n complete Davis's application form "block by bloc k," and the representative ind icated that Davis's application would obtain coverage for bot h buildings. Like FEMA's motion, the district court's summary judgment orde r did not pay any attention to Davis's claim that FEMA had approved the form Martin used to insure more than one building. T hus, we must reinstate and remand this claim to the district court. Burke v. Warner & Swasey Co. , 86 8 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

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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).

Ac cordingly, we vacate the district court's summary judgment orde r and remand for further proceedings consistent with this opinion.
GARTH, Circuit Judge, concurring.

I concu r in the court's opinion and write separately to express my concern with the district court's having rendere d 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 th e plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for dis coveryand upon motion, against a party who fails to make a s howing sufficient to establish the existence of an elemen t
ess ential to that party's case, and on which that party will bear th e burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 32 2 (1986 ). Thus, "[s]ummary judgment may not be granted if the nonmovin g 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 no t permit discovery to be completed prior to entering summary judgment for FEMA. On July 11, 1994, only weeks after Davis sough t 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 r equests until such time as the district court ruled on the motion. Davis d id the only thing he could under the circumstances. He opposed FEMA's motion and waited for th e district court's ruling. However, the district

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court never ruled on the motion to stay discovery prior to ruling on the summary judgment motion. FEMA's motion to stay discovery was pendin g 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 judgmen t motion, was an abuse of discretion.
It may be that if discovery had beenallowed 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, amon g other things, Davis's insurance coverage was increased from $180,000 t o $185,0 00 and why FEMA accepted premiums for two and a half years fo r $18 5,000 of coverage but now claims that only about $40,000 can b e considered.

A true copy.

Attest:

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