MEMORANDUM OPINION

RICHARD BENNETT, District Judge

Pending before this Court is Plaintiff John A. Bruno's ("Bruno") Motion for Leave to File Second Amended Complaint (Paper No. 31) pursuant to Fed.R.Civ.P. 15(a) and Local Rule 103.6. Defendants R. David Paulison, Director of the Federal Emergency Management Agency ("FEMA"), and Nationwide Mutual Fire Insurance Company ("Nationwide") (collectively, "Defendants") oppose the filing of a Second Amended Complaint and have separately moved to dismiss the lawsuit (Paper Nos. 5, 14, 20). The issues have been fully briefed by the parties and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons stated below, Plaintiff's Motion for Leave to File Amended Complaint is GRANTED and Nationwide's Motion to Dismiss is DENIED. However, the action is DISMISSED as to Defendant FEMA for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).

BACKGROUND

Nationwide, a participating WYO Company, issued Bruno a SFIP, effective for the period of June 30, 2003 to June 30, 2004, to protect Bruno's property located on the Severn River in Annapolis, Maryland. On or about September 18, 2003, Bruno suffered property damage as a result of Tropical Storm Isabel. Bruno filed a proof of loss claim for damages with Nationwide. Because of ongoing damages caused to his property after the flood waters receded, Bruno subsequently submitted a revised proof of loss claim. On April 27, 2007, Nationwide notified Bruno that his claim for additional damages had been rejected.

On February 25, 2008, Bruno filed this action against FEMA. On May 7, 2008, FEMA filed a motion to dismiss the complaint, noting that Nationwide was the correct issuer of the SFIP and that FEMA had not waived sovereign immunity under 42 U.S.C. § 4702. In light of FEMA's assertion, Bruno filed an Amended Complaint as a matter of right on July 22, 2008, which was identical to his original Complaint except for the addition of Nationwide as a named defendant.

On August 14, 2008, Nationwide served its own motion to dismiss claiming that a one-year statute of limitations had run against it between the filing of the original Complaint on February 25, 2008 and the Amended Complaint on July 22, 2008. FEMA filed a Motion to Dismiss the Amended Complaint on September 2, 2008, in which it incorporated by reference the arguments from its original motion.

On October 24, 2008, Bruno filed a Motion for Leave to File Second Amended Complaint (Paper No. 31) pursuant to Rule 15(a) and Local Rule 103.6. Bruno claims that he was informed by FEMA that the SFIP attached to his Amended Complaint did not appear to be the policy issued to Bruno, because it was a General Property form and not one of the Dwelling Forms that are issued to residential property owners. Bruno states that his proposed Second Amended Complaint corrects the problem by incorporating the correct SFIP form, as identified by Nationwide, and a correct copy of the Declarations Page to the SFIP. Bruno also claims that the Second Amended Complaint adds allegations revealing that Nationwide had advance notice of Bruno's lawsuit. Bruno claims that neither defendant will be prejudiced by the amendment, because no discovery has taken place and neither defendant has answered his initial pleadings.

In their oppositions to the filing of the Second Amended Complaint, defendants Nationwide and FEMA reiterate their respective arguments in favor of dismissing the action. Nationwide contends that the amendment should be denied on the basis of futility, because even as amended, Bruno's action would be barred by the statute of limitations. FEMA asserts that the amendment should be denied on the grounds of futility as it contains no allegations that establish a waiver of sovereign immunity.

I. Nationwide's Motion to Dismiss and Opposition to the Filing of the Second Amended Complaint

Nationwide argues that the Second Amended Complaint should be denied and Bruno's action should be dismissed because all claims for breach of contract under the SFIP must be filed within one year of the denial or partial denial of the flood claim. In this case, June 24, 2008 is the relevant deadline date, as it marks the end of the 120 day grace period from the filing of Bruno's original Complaint, as designated in Rules 15(c) and 4(m). Because the lawsuit was filed as to Nationwide on July 22, 2008, Nationwide contends that it is barred by the statute of limitations. Bruno acknowledges that his lawsuit, as amended, seeks to add Nationwide as a defendant after the deadline date of June 24, 2008. However, he contends that his claims relate back to the date of the original Complaint, timely filed on February 25, 2008, due to the operation of Fed.R.Civ.P. 15(c). Nationwide counters that the amendments do not relate back under Rule 15, and that because the complaint as amended would still be subject to dismissal, the amendments should be denied on the basis of futility. See Barnes v. Prince George's County, Maryland, 214 F.R.D. 379, 380 (D. Md. 2003).

A. Standard of Review

A plaintiff may amend his or her complaint once "as a matter of course at any time before a responsive pleading is served" or "by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court stated that, "[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be 'freely given.'" Id. at 182. The U.S. Court of Appeals for the Fourth Circuit recently observed that "'leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'" Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). Due to the interconnection of the issues, a Rule 15(a) claim of "[f]utility is governed by the same standard as a Fed.R.Civ.P. 12(b)(6) motion to dismiss." Openshaw v. Cohen, Klingenstein Marks, Inc., 320 F. Supp. 2d 357, 358 (D. Md. 2004). Thus, this Court addresses the Rule 15(a) issue in this case as part of its Rule 12(b)(6) analysis.

As the legal sufficiency of the complaint is challenged under a Rule 12(b)(6) motion, the court assumes "the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." Eastern Shore Mkts. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000) (citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). A Rule 12(b)(6) motion to dismiss "should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325 (4th Cir. 2001). In reviewing the complaint, the court accepts all well-pleaded allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Venkatraman v. REI Systems, Inc., 417 F.3d 418, 420 (4th Cir. 2005).

The defense of statute of limitations is typically raised by the defendant through an affirmative defense, which the defendant bears the burden of establishing. See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc) (citing Fed.R.Civ.P. 8(c)). The Fourth Circuit recently stated in a case involving similar circumstances:

[A] motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense "clearly appear[] on the face of the complaint."

B. Analysis

Under Rule 15(c), an amendment that changes the party against whom a claim is brought relates back to the date of the original pleading if "(1) the claim in the amended complaint arose out of the same transaction that formed the basis of the claim in the original complaint; (2) the party to be brought in by the amendment received notice of the action such that it will not be prejudiced in maintaining a defense to the claim; and (3) it should have known that it would have originally been named a defendant 'but for a mistake concerning the identity of the proper party.'" Goodman, 494 F.3d at 467.

It is clear that the first prerequisite for relating back is satisfied, as Bruno's Second Amended Complaint arises out of the same transaction that gave rise to his original Complaint. However, the question of whether Nationwide received appropriate notice of the action is hotly contested by the parties. The Fourth Circuit has noted that the notice and prejudice factors require a court to consider "whether the rights of the new party, grounded in the statute of limitations, will be harmed if that party is brought in to the litigation." Id. at 471. The court added that "[w]hen that party has been given fair notice of a claim within the limitations period and will suffer no improper prejudice in defending it, the liberal amendment policies of the Federal Rules favor relation-back." Id. See also, Heaton v. USF Corporation, No. 3:08-cv-540, 2008 U.S. Dist. LEXIS 99244, at *9 (E.D. Va. Dec. 9, 2008) ("the proper focus in determining whether an amendment relates back is whether the new party had notice of the action, and whether the amendment would prejudice the parties."). In certain limited situations, constructive notice will suffice for purposes of relation-back. The Fourth Circuit noted that "when a plaintiff alleges a comprehensible claim against one of a group of closely related and functioning business entities or corporations, the other entities in that group, barring a contrary showing, will be charged with knowledge under [Rule 15(c)] of the entity properly answerable to the claim." Goodman, 494 F.3d at 475. See also, Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir. 1989) (stating that notice "may be presumed" when "the added defendant has either a sufficient identity of interest with the original defendant or received formal or informal notice of the claim."). Finally, the form of notice under Rule 15(c) may be either formal or informal; the relation-back doctrine does not require a showing that the actual complaint or summons was served upon the party affected by the amendment. Lackawanna Transp. Co. v. PSC, 2008 U.S. Dist. LEXIS 105084, at *20 (N.D. W. Va. Dec. 23, 2008).

With these legal principles in mind, the question becomes whether there are sufficient facts on the face of the complaint to support a determination of whether or not Nationwide could be deemed to have had notice (formal or informal) of the suit between the filing of the original complaint on February 25, 2008 and the end of the 120-day period prescribed by Rule 4(m) on June 24, 2008.

While there is no specific allegation in the Second Amended Complaint with respect to actual notice of the institution of the lawsuit, it is clearly alleged that on or about February 6, 2008, Bruno's counsel informed Mary Goodnough of the Nationwide Flood Insurance Processing Center that "unless Bruno was paid the full amount of his claim, counsel was instructed to file suit to recover all monies due under Bruno's policy." Second Amend. Compl. ¶ 26. Bruno further alleges that on February 13, 2008, Goodnough formally denied Bruno's claims. Second Amend. Compl. ¶ 28. Bruno contends that these allegations show that Nationwide was notified of the lawsuit. While these allegations may pertain to the threat and not the actual institution of this lawsuit, it is specifically alleged that Nationwide and FEMA were operating together under the WYO program. Thus, the issue to be addressed in this case is whether the relationship of Nationwide and FEMA was sufficiently close for relation-back purposes. Cf. Goodman, 494 F.3d at 474-75 (determining that newly added corporate defendant had constructive notice of lawsuit when it was an affiliate of the originally named defendant and both entities were represented by the same lawyers).

Nevertheless, Nationwide's efforts to dismiss the lawsuit as time-barred could only succeed upon a showing from the amended allegations that there is no possibility of relation-back. See id. at 464. The allegations in the Second Amended Complaint instead convey a definite possibility that Nationwide received notice of the institution of this action. Under WYO-issued plans, suit is typically brought against the WYO insurer and not FEMA — a point that FEMA vigorously emphasizes in its briefs. See FEMA's Motion to Dismiss at 2 ("Nationwide is responsible for payment of any claim to Plaintiff for its obligations under Plaintiff's specific policy, and his remedy, if any, is against Nationwide — not FEMA."). In light of the fact that FEMA and Nationwide were operating under a partnership agreement, there is an issue of fact with respect to notice provided to either FEMA or Nationwide. Because this clear issue of fact remains, dismissal is not appropriate and this Court grants leave to file the Second Amended Complaint. The parties may conduct discovery to determine whether or not Nationwide had actual or constructive notice of the institution of the lawsuit, and the issue of relation-back may be resolved upon summary judgment. See Alberts v. Arthur J. Gallagher Co. (In re Greater Southeast Cmty. Hosp. Corp. I), 2006 Bankr. LEXIS 1578, at *7 (Bank. D.D.C. June 26, 2006) ("[a] final determination of the relation-back issue necessarily requires consideration of matters outside of the pleadings, and is more appropriately disposed of on motion for summary judgment under Rule 56. . . ."); Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1409 (11th Cir. 1998).

II. The Federal Defendant's Motion to Dismiss

Defendant FEMA has moved separately for dismissal of Bruno's claim for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), on the basis that there has been no waiver of sovereign immunity under the National Flood Insurance Act, 42 U.S.C. §§ 4001- 4129 ("NFIA"). In addition, FEMA asserts that Bruno's suit should be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim because Bruno and Nationwide are parties to the contract that is alleged to be breached, and there is no privity of contract between Bruno and FEMA.

Under the doctrine of sovereign immunity, a plaintiff cannot bring suit for money damages against the United States except to the extent that the United States has expressly consented to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). In addition, "[a] waiver of sovereign immunity cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969). The federal government has provided, in 42 U.S.C. § 4072, for a limited waiver of sovereign immunity where FEMA issues a Standard Flood Insurance Policy ("SFIP") and denies claims under that policy. This limited waiver applies "exclusively to the situation where FEMA directly denies an application. . . ." Hower v. FEMA, 2004 U.S. Dist. LEXIS 22486, at *4 (E.D. Pa. Oct. 20, 2004) (emphasis in original). On the other hand, the limited waiver does not extend to suits involving the actions of WYO companies in issuing, adjusting, or disallowing claims. See, e.g., Sutor v. FEMA, No. 06-1371, 2008 U.S. Dist. LEXIS 36723, at *8 (E.D. Pa. May 5, 2008).

Applicable federal regulations clearly state that WYO Companies are considered fiscal agents, but not general agents, of the government. 44 C.F.R. § 62.23(g). In this role, WYO Companies "shall arrange for the adjustment, settlement, payment and defense of all claims arising from policies of flood insurance it issues under the Program." 44 C.F.R. § 62.23(d). As such, the WYO Company is the proper defendant in disputes concerning the administration of such claims:

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.

There is no indication that FEMA played any role or committed any act that would trigger the limited waiver under 42 U.S.C. § 4072. The allegations instead reveal that Nationwide, as the WYO Company, was the entity that processed Bruno's claim and finally disallowed it. Bruno purchased his flood insurance policy through Nationwide. The declarations page of the SFIP clearly references the Nationwide Flood Insurance Program. See Bruno's Mot. for Leave to File Second Amend. Compl., Ex. 1. Nationwide is a participating private insurance company in the WYO program and is therefore legally responsible for the "adjustment, settlement, payment and defense" of any claims on the SFIPs it issues. 44 CFR § 62.23(d). Bruno submitted his claims for flood loss under his flood insurance policy to Nationwide, not FEMA. Second Amend. Compl. ¶ 17. On April 27, 2007, Nationwide notified Bruno that it had denied his claim for damages. Id. at ¶¶ 21, 31. Bruno then appealed Nationwide's disallowance of its claim to FEMA pursuant to 44 C.F.R. § 62.20. Id. at ¶ 22. On October 11, 2007, FEMA informed Bruno that it had affirmed Nationwide's disallowance of Bruno's claim. Id. at ¶ 23. FEMA's administrative review of Nationwide's disallowance does not trigger the limited waiver under 42 U.S.C. § 4072. See 44 C.F.R. § 62.20(b).

Courts have confirmed that FEMA is not a proper party when WYO Companies handle the claim adjustment and denial process. See Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998) ("The statute provides that an insured may sue FEMA if it adjusts a claim and improperly refuses to pay benefits."); Banks v. Paulison, No. 3:06cv178/MCR, 2006 U.S. Dist. LEXIS 67584, at *3 (N.D. Fla. Sept. 20, 2006) (finding waiver of sovereign immunity from "those actions which stem from FEMA's direct denial of an application, not actions in which a private corporation independent of FEMA denies a claim"). As a result, when addressing factually similar cases, courts have repeatedly denied subject matter jurisdiction over claims against FEMA. See, e.g., Kronenberg v. Fidelity Nat'l Ins. Co., No. 07-4877, 2008 U.S. Dist. LEXIS 16971, at *3-4 (E.D. La. Mar. 5, 2008) ("In cases involving disputes arising out of a standard flood insurance policy issued by a W[Y]O provider, the WYO insurer, not the federal government, is the only real party of interest and is solely liable for the coverage of the standard policy that it provided."); Loree v. Fidelity Nat'l Prop. Cas. Co., No. 06-250, 2007 U.S. Dist. LEXIS 35308, at *1 n. 2 (N.D. Fla. May 15, 2007) ("[T]here is no waiver of sovereign immunity to sue FEMA under the National Flood Insurance Act and thus subject matter jurisdiction is lacking with respect to plaintiff's claim against the federal defendant."); Hower v. FEMA, No. 04-2222, 2004 U.S. Dist. LEXIS 22486, at *6 (E.D. Pa. Oct. 20, 2004) (finding that the court lacked subject matter jurisdiction over the plaintiff's claims against FEMA because "[t]he applicable federal regulations consistently state that if a claim is issued under a WYO policy, the WYO Company stands in for FEMA and is the proper party to be sued").

Bruno argues that even if Nationwide executed a WYO policy, FEMA is still a proper party defendant. In support of this argument, Bruno cites to language from a recent Fourth Circuit decision:

If a WYO company disallows a claim under an SFIP, the statute allows the policyholder to sue FEMA in district court. 42 U.S.C. § 4072. FEMA regulations require the pertinent WYO company to defend the suit, and FEMA reimburses the company for defense costs. 44 C.F.R. § 62.23(i)(6). NFIP policyholders routinely sue the WYO company directly, and "a suit against a WYO company is the functional equivalent of a suit against FEMA," Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 166 (3d Cir. 1998), because a WYO company is a "fiscal agent[] of the United States," 42 U.S.C. § 4071(a)(1). By the same token, a money judgment against a WYO company for SFIP coverage is a charge on the federal treasury. Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir. 1998).

Bruno's arguments in favor of naming FEMA as a defendant do not square with the governing statute, regulations, and case law. Bruno fails to assert any proper basis of jurisdiction over FEMA, and his lawsuit is accordingly dismissed as to FEMA pursuant to Fed.R.Civ.P. 12(b)(1).

A separate Order follows.

ORDER

1. Plaintiff John A. Bruno's Motion for Leave to File Second Amended Complaint (Paper No. 31) is GRANTED.

2. The Motion to Dismiss Complaint filed by Defendant Nationwide Mutual Fire Insurance Company (Paper No. 14) is DENIED.

3. The Motion to Dismiss Complaint filed by Defendant Federal Emergency Management Agency (Paper No. 5) is GRANTED.

4. The Motion to Dismiss Amended Complaint filed by Defendant Federal Emergency Management Agency (Paper No. 20) is GRANTED.

5. That the Defendant file an answer the Second Amended Complaint within 20 days of the date of this Order.

6. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties.