                               _____________

                               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




      *The HONORABLE LEONARD I. GARTH, United States
      Circuit Judge for the United States Court of
      Appeals   for the  Third  Circuit, sitting  by
      designation.
(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




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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).


       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




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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 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.




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