ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Before the Court is Defendant United States' Motion to Dismiss the Remaining FTCA Claims of All "Mississippi Plaintiffs" for Lack of Subject-Matter Jurisdiction Based Upon No Analogous Private Liability (Rec. Doc. 7690). This motion is opposed. (See Rec. Doc. 9405). After considering the memoranda filed by the parties and the applicable law, the Court grants this motion.1

I. INTRODUCTION

First, the undersigned notes that the motion presently before the Court addresses all of the remaining Federal Tort Claims Act ("FTCA") claims brought by the "Mississippi Plaintiffs" against the United States of America ("the Government" or "FEMA"). Based on the wording of the applicable Mississippi law, and on the showing made, this motion affects all of the Mississippi Plaintiffs' FTCA claims, not merely the standard of care to be applied to FEMA for the purposes of assessing liability under state law, as was the case in the similar motion filed by the "Louisiana Plaintiffs." The issue presented herein is indeed the dismissal of the Government as a defendant in the Mississippi Plaintiffs' cases. Essentially, this motion seeks dismissal of all Mississippi Plaintiffs' FTCA claims, regardless of whether they are grounded in simple negligence or otherwise.

II. BACKGROUND

In this multi-district litigation ("the MDL"), referred to as "In Re: FEMA Trailer Formaldehyde Products Liability Litigation," Plaintiffs are individuals who resided in emergency housing units ("EHUs") provided by the Federal Emergency Management Agency ("FEMA") after Hurricanes Katrina and Rita. In general, Plaintiffs claim injuries resulting from alleged exposure to the release of formaldehyde and/or formaldehyde vapors in these EHUs. (Rec. Doc. 109, ¶ 30). In their Third Supplemental and Amended Administrative Master Complaint (Rec. Doc. 4486), Plaintiffs have sued over 100 entities, including the Government.2 (Rec. Doc. 4486, ¶¶ 10-115). The Complaint cites 28 U.S.C. §§ 1346 and 2671, et seq., and alleges that the Government is subject to the jurisdiction of this Court through the limited waiver of sovereign immunity, found in the FTCA. (Id. ¶ 116).

Plaintiffs have alleged that they were provided housing units by FEMA because "[t]he residence of each Named Plaintiff was rendered unhabitable following Hurricanes Katrina and/or Rita." (Id., ¶ 124, 128). As a result of what Plaintiffs describe as "the greatest natural disaster in the history of the United States," each and every Plaintiff was essentially left "homeless." (Id., ¶¶ 128, 171). Plaintiffs further allege that FEMA's provision of housing to these homeless "individuals and families displaced by hurricanes Katrina and Rita" created "a duty on the part of the Federal Government to insure that such housing was habitable in a safe and sanitary condition," and that the Government was under a duty to: "use due care and caution for the safety of the ... occupants of the subject housing units"; "provide reasonably safe, functional and habitable housing units"; "ensure that the housing units ... were free of defects"; and "warn ... of any defects in the housing units." (Id., ¶¶ 150, 162, 201-205).

Specifically, Plaintiffs allege that the Government was negligent in: "continuing to provide unreasonably dangerous housing units"; "failing to adequately warn ... of the unreasonably dangerous nature of the housing units"; "failing to remedy the dangerous nature of the housing units"; "failing to timely implement adequate safety measures and procedures to address/remove the defects in the housing units"; and "continuing to house [Plaintiffs] in hazardous, unreasonably dangerous temporary housing units." (Id., ¶ 209). They also assert that the Government was "grossly negligent, reckless, willful and/or wanton."3 (Id., ¶ 206).

III. SUMMARY OF THE ARGUMENTS

The Government has filed the instant motion seeking the dismissal of all the remaining FTCA claims brought by the "Mississippi Plaintiffs'"4 negligence based upon lack of subject-matter jurisdiction. Noting that the FTCA requires the Government's liability to be measured in accordance with the law of the state where the alleged act or omission occurred, the Government contends that all remaining FTCA claims of these plaintiffs are limited by the provisions set forth in Mississippi tort law. See 28 U.S.C. § 1346(b); Cleveland ex rel. Cleveland v. United States, 457 F.3d 397, 403 (5th Cir. 2006); Alexander v. United States, 605 F.2d 828, 832 (5th Cir. 1979) ("[L]iability under the FTCA is governed by state law."); see also Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Any alleged negligent acts or omissions on the part of the Government in these cases will have occurred within the State of Mississippi (where the "Mississippi Plaintiffs'" EHU were located).

Further, the Government stresses that in assessing liability, the FTCA places the United States on equal footing with private persons.5 Thus, the Government asserts that its liability is measured by referencing the state law liability of a private person under similar circumstances. As a result, the Government claims that it is entitled to raise any and all defenses available to a private person under state law.

Here, the Government argues that, even if the Mississippi Plaintiffs could prove that the Government was negligent, there is no analogous tort liability against a "private individual under like circumstances" under Mississippi law. See 28 U.S.C. §§ 2674, 1346(b). The Government asserts that the State of Mississippi has sought to encourage the gratuitous provision of shelter to homeless disaster victims by promulgating Miss. Code § 33-15-21(b) of the "Mississippi Emergency Management Law ("MEML"). This section abrogates the potential tort liability of all private persons who, voluntarily and without compensation, allow their property or premises to be used as shelter in response to an emergency, such as a natural disaster:

Miss. Code § 33-15-21(b)6. The Government argues that this law squarely applies to the facts of this case, barring all remaining FTCA claims (and all negligence claims in general) that stem from the "of rent-free emergency shelters that were provided voluntarily. Specifically, the Government asserts that it, through FEMA: (1) owned or controlled "real estate or other premises"; (2) acted "voluntarily and without compensation"; (3) granted "a license or privilege, or otherwise permit[ted] the designation or use" thereof; and (4) did so "for the purpose of sheltering" or "providing assistance to persons during or in recovery from" a natural disaster. See Miss. Code § 33-15-21(b). Thus, the Government argues that because there is no analogous private liability under Mississippi state law, there is no subject-matter jurisdiction under the FTCA.

The Mississippi Plaintiffs, on the other hand, oppose the motion and argue that the Court would arrive at an absurd outcome by strictly interpreting this limitation of liability statute in consideration of the Government's effort to apply its protective language to FEMA under the "private person analogy" of the FTCA. The Mississippi Plaintiffs argue that no private person doing or failing to do what FEMA did or failed to do in connection with this litigation could ever be said to fall within the meaning and scope of this statute. They contend that the private person to which the statute applies would have to act voluntarily and without compensation, would be protected only as to personal injury claims occurring during an actual emergency, and would be open to suit in his capacity as a property owner. Conversely, the Mississippi Plaintiffs assert that here, FEMA did not act "voluntarily," did not proceed "without compensation," is not sued for personal injuries occurring during the actual emergency of Hurricanes Katrina and Rita, and is not sought to be held liable for conduct predicated upon the ownership of travel trailers. Mississippi Plaintiffs argue that the objective of Miss. Code Ann. § 33-15-21(b) is not furthered by limiting the liability of FEMA. In Plaintiffs' view, such a limitation would not encourage "Good Samaritan" behavior. Indeed, the Mississippi Plaintiffs assert that FEMA's further involvement in emergency response is required as a matter of law, and does not constitute voluntary altruism. Essentially, the Mississippi Plaintiffs contend that imposing this limitation of liability on their FTCA cases would be inconsistent with the requirement of the FTCA that FEMA be held accountable in tort just as a private citizen would be held accountable under similar circumstances.

IV. DISCUSSION

A. Standard of Review

The Government urges the dismissal of the Mississippi Plaintiffs' remaining FTCA claims for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, requests the granting of summary judgment in its favor, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Because federal courts are inherently courts of limited jurisdiction, the Court begins with the presumption that a cause lies outside its limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Jurisdiction is of course a threshold issue, and a federal court is tasked with determining whether it has jurisdiction as soon as possible before reaching the merits of a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

"Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts." Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).7 In a 12(b)(1) motion, the party asserting jurisdiction (here, the Mississippi Plaintiffs) bears the burden of proof that jurisdiction does in fact exist. Id. "Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Id.

The United States as a sovereign "is immune from suit save as it consents to be sued," and without such consent, a district Court lacks subject matter jurisdiction over claims against it. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). In other words, the United States may not be sued without its consent under the doctrine of sovereign immunity. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the FTCA provides that "the United States shall be liable, respecting the provision of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674. Similarly, the FTCA provides that courts may only exercise jurisdiction over:

28 U.S.C. § 1346(b)(1). The "law of the place where the act or omission occurred" "refers exclusively to state law." Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981); see Leleux v. United States, 178 F.3d 750, 759 (5th Cir. 1999). Hence, the FTCA measures governmental liability in accordance with the law of the state where the act or omission at issue occurred. See Brown, 653 F.2d at 201.

Whether a private person in "like circumstances" would be subject to liability is a question of sovereign immunity and, thus, is ultimately a question of federal law. See Olson, 546 U.S. at 44, 126 S.Ct. 510; see also United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986). Therefore, if a private person under "like circumstances" would be shielded from liability pursuant to a state statute, the strict construction required by the Supreme Court dictates that lower courts decline to exercise subject-matter jurisdiction.

B. Analysis

As part of the FTCA's private analogous liability requirement, numerous courts have determined that the Government is entitled to raise any and all defenses that would potentially be available to a private citizen or entity under state law. See Starnes v. United States, 139 F.3d 540, 542 (5th Cir.1998); Banks v. United States, 623 F.Supp.2d 751, 752 (S.D.Miss.2009) ("Where the FTCA applies, the United States can assert the same defenses available to private citizens. . ."); Woods v. United States, 909 F.Supp. 437, 442 (W.D.La.1995) (dismissing an FTCA action based upon the private landowner immunity afforded by Louisiana's recreational use statute). Indeed, the United States Supreme Court has explained that the Government's sovereign immunity is only waived "where local law would make a `private person' liable in tort". Olson, 546 U.S. at 44, 126 S.Ct. 510. While the Court sees the meaning and purpose of Miss. Code § 33-15-21(b) to be unambiguous and clear on its face, if an interpretation is required, there is case law that interprets other sections of MEML, such as those pertaining to state liability, consistent with the interpretation of section 33-15-21(b), as advanced by the Government. For example, in Young v. Mississippi State Port, 06-966, 2007 WL 141906 (S.D. Miss. Jan. 12, 2007), the court interpreted MEML sections 33-15-21(a)8 and 33-15-5(c)9 to shield state agencies from liability for property damage resulting from their allegedly negligent preparation for and response to Hurricane Katrina. The Young Court noted that the state's "hurricane procedure, which Plaintiff describes as ill conceived, and the prestorm and post-storm actions that the Plaintiff alleges was [sic] negligently executed, is precisely the `emergency management' conduct the legislature intended to insulate from civil liability" through Mississippi Code Section 33-15-21. Young, 2007 WL 141906 at *2. See also Lindsey v. Mississippi State Port, et al., No. 06-656, 2006 U.S. Dist. Lexis 77872 (S.D.Miss. Oct. 23, 2006).

Through section 33-15-21(b), the State of Mississippi has abrogated the tort liability of private persons who, voluntarily and without compensation, allow their property or premises to be used as shelter in response to an emergency, such as a natural disaster.10 See Miss. Code 33-15-21(b). Here, the Mississippi Plaintiffs have alleged that the Government provided them with shelter because their residences were rendered uninhabitable and because they were left "homeless" as a result of Hurricanes Katrina and Rita. (Rec. Doc. 4486, ¶¶ 124, 128, 171). It is clear to this Court that Miss. Code § 33-15-21(b) shields the Government from FTCA liability because a private person in like circumstances would be shielded from such by the MEML.11 It seems clear to the Court that had a private person or entity provided thousands of emergency shelters to the victims of Hurricanes Katrina and Rita, Miss. Code § 33-15-21(b) plainly would preclude any negligence liability for injuries related to the occupants' use of these shelters. Thus, the Court finds that the Government, through FEMA, voluntarily provided FEMA-owned premises for use by disaster victims (including Mississippi Plaintiffs), at no cost, in connection with the real and ongoing exigencies created by Hurricanes Katrina and Rita.

(1) FEMA owned or controlled real estate or other premises, as required by Miss. Code § 33-15-21(b)

It is undisputed in this case that the Government, through FEMA, provided emergency housing units to thousands of homeless disaster victims across the Gulf Coast (including Mississippi Plaintiffs) following Hurricanes Katrina and Rita. (Rec. Doc. 4486, ¶¶ 124, 128, 135, 171). FEMA sheltered displaced residents through the use of FEMA-owned "premises".12 The EHUs, which were intended and used for habitation, fall within the "other premises" designation.

As the Government notes, the occupancy agreements entered into between FEMA and the Mississippi Plaintiffs specifically refer to the EHUs as "premises" and "temporary shelter" required by an emergency. (See Exhibits 5 and 6 to Rec. Doc. 7690). Further, Mississippi state law provides that EHUs such as travel trailers are among the types of shelter to be used by the state to house disaster victims, and that a "premises" means a "dwelling unit." See Miss. Code § 33-15-219 ("Description of temporary housing" under Mississippi's Individual Assistance and Emergency Temporary Housing Assistance Act); § 89-8-7 (definition of "premises" from the definitions Section of Mississippi's Residential Landlord and Tenant Act). Thus, the Court finds that the EHUs at issue in this case squarely qualify as the type of "premises" contemplated by the Mississippi Legislature in its enactment of Section 33-15-21(b).

(2) FEMA Acted Voluntarily And Without Compensation, as required by Miss. Code § 33-15-21(b)

Here, the Government, through FEMA, provided rent-free emergency housing to otherwise homeless displaced residents after Hurricanes Katrina and Rita.13 The Government provided these EHUs for over 44 months, without receiving any form of compensation in return. (See Exhibits 7 and 8 to Rec. Doc. 7690; see also Exhibit 16 to Rec. Doc. 6970, pp. 36-37 ("these units are provided at absolutely no cost to the disaster victims . . . Nothing came out of their pockets in terms of the requirements for this. They paid no out-of-pocket costs for this.")). Thus, all Plaintiffs, including the movants of this motion, were allowed to use FEMA's property as emergency shelters and FEMA received no direct monetary benefit.

Despite Plaintiffs' assertions to the contrary, the Government, through FEMA, was not contractually obligated to provide this emergency shelter, nor was it compelled to act in this way.14 In deciding to offer displaced residents rent-free EHUs, the Government acted on its own volition.15 Indeed, Plaintiffs have pointed to no law, mandate, contractual agreement, or other external provision that obligates the Government to provide free shelter to displaced residents.

As the Government notes, the Stafford Act and its related implementing regulations do not affirmatively require the provision of assistance. Further, the Stafford Act does not mandate if/when/how FEMA should provide housing assistance after disasters. For instance, 42 U.S.C. § 5174(c)(1)(B)(i) states that FEMA "may provide temporary housing units, acquired by purchase or lease, directly to individuals or households" (emphasis added)). Essentially, while FEMA is permitted by statute to provide emergency housing assistance, a displaced resident does not have an automatic right or entitlement to receive this particular type of housing assistance from FEMA.

While it is true that the Government formed FEMA and set forth various implementing regulations that charge the agency with the responsibility of responding to emergencies, such inherently governmental provisions cannot then be interpreted to vitiate state law protections and authorize suit where a private person would otherwise be shielded. Doing so would improperly place the Government "in a differently situated position than private parties . . . thereby undermining the conditions precedent to the United States' waiver of sovereign immunity in the FTCA." Hill v. SmithKline, 393 F.3d 1111, 1118 (10th Cir.2004). Plaintiffs' argument that a private person would never be expected to adhere to all of the policy objectives, regulations, and guidelines that they claim shaped the Government's provision of EHUs is not persuasive. This Court is tasked with looking past the inherent differences between the Government and a private person in order to find the most reasonable private person analogy. LaBarge v. County of Mariposa, 798 F.2d 364, 366-69 (9th Cir.1986). The Fifth Circuit mentioned in Ridgely v. FEMA, 512 F.3d 727, 736 (5th Cir.2008), that mandatory language is wholly absent from FEMA's implementing regulations that discuss the provision of assistance. The Ridgely Court discussed all of FEMA's implementing regulations, beyond just the rental assistance provision, and stated ("[t]here is simply no indication that the regulations constrain FEMA's discretion to the point that it is bound to provide assistance to all eligible individuals").16

Further, to address Plaintiffs' assertions that they had a vested property interest in FEMA-provided assistance, the Court finds additional support in a recent opinion which dealt specifically with EHUs and confirmed that "[b]ecause of its institutional discretion, FEMA's emergency housing assistance does not create an entitlement in the plaintiff to a property interest in that assistance." Johnson v. FEMA, 2009 WL 1208639, at *1 (E.D.La. May 1, 2009) (Feldman, J.) (denying a plaintiff's request for an injunction to stay in his Government-provided emergency shelter). Also, following Hurricane Andrew, the Court stated in Lockett v. FEMA, 836 F.Supp. 847, 854 (S.D.Fla.1993), that the Stafford Act "clearly shows that assistance is discretionary, not mandatory".

Based on the above, the Court agrees with the Government that when FEMA chose to provide emergency shelter to displaced residents following Hurricanes Katrina and Rita, it acted of its own volition. Even if the Government undertook the task of assisting the public in an emergency (and had an agency to do so), that fact does not make its decision to undertake that task mandatory, or in other words, non-voluntary. Further, even if it could be said that the Government was obligated to provide this assistance, the Government imposed such an obligation to provide assistance on itself, thereby rendering the obligation as one that was voluntarily undertaken by the Government.

(3) FEMA granted a "license or privilege" or otherwise permitted "the designation or use" of the premises, as required by Miss. Code § 33-15-21(b)

First, the Mississippi Plaintiffs do not appear to dispute that this element of the statute is satisfied. Indeed, Miss. Code § 33-15-21(b) immunizes an owner or controller of the premises who grants a license, privilege, or other permission for a disaster victim to have used such premises. Here, it is undisputed in this case that the Government, through FEMA, allowed thousands of homeless displaced residents (including Mississippi Plaintiffs) to use FEMA-owned EHUs in direct response to Hurricanes Katrina and Rita. (See Rec. Doc. 4486, ¶¶ 124, 135, 150). Indeed, Plaintiffs assert that their usage or occupancy of these same EHUs caused certain injuries. (See Rec. Doc. 4486, ¶¶ 179, 207).

(4) FEMA acted "for the purpose of sheltering persons or providing assistance" to them "during or in recovery from" a "natural disaster", as required by Miss. Code § 33-15-21(b)

The provisions of Miss. Code 33-15-21(b) apply to acts taken "for the purpose of sheltering persons or providing assistance" "during or in recovery from" a "natural disaster." Here, Plaintiffs allege that they were provided EHUs after what they describe as "the greatest natural disaster in the history of the United States." (Rec. Doc. 4486, ¶¶ 128, 171). As the Government notes, the MEML defines "disaster" as an emergency "that causes damage of sufficient severity and magnitude to result in a declaration of an emergency by a county or municipality, the Governor or the President of the United States." Miss. Code § 33-15-5(m). On August 27, 2005, the Governor of Mississippi requested that the President declare a State of Emergency in Mississippi as a result of Hurricane Katrina, noting that he had issued a State of Emergency for the entire state and had determined that the damage caused by Hurricane Katrina was "of such severity and magnitude that effective response [was] beyond the capabilities of the State and affected local governments, and that supplementary Federal assistance [was] necessary" for the health and safety of residents of Mississippi. (Exhibit 9 to Rec. Doc. 7690). Further, on August 29, 2005, the President, through FEMA, declared Hurricane Katrina a major disaster in Mississippi, authorizing FEMA to provide federal assistance to the state and its individuals under the Stafford Act and its implementing regulations. (Exhibit 10 to Rec. Doc. 7690).

In this case, Plaintiffs assert that they were provided EHUs because "[t]he residence of each Named Plaintiff was rendered unhabitable following Hurricanes Katrina and/or Rita" and each Plaintiff was left "homeless." (Rec. Doc. 4486, ¶¶ 128, 171). The emergency conditions of Hurricane Katrina, and its resulting housing shortage, continued to exist long after the Hurricane made landfall. For instance, in the winter of 2007, the Governor of Mississippi requested that FEMA extend its temporary housing assistance program for an additional year, to the winter of 2008. (Exhibit 11 to Rec. Doc. 7690). Indeed, as of the spring of 2008, over 2,000 households remained in FEMA-provided EHUs in Mississippi, and FEMA's temporary emergency housing program did not end in Mississippi until the spring of 2009. (Exhibits 7, 12, and 13 of Rec. Doc. 7690). Thus, the Court concludes that the EHUs17 at issue in this Motion were provided to the Mississippi Plaintiffs by FEMA "during or in recovery from" Hurricane Katrina, a natural disaster, and according to many, including Plaintiffs, "the greatest natural disaster in the History of the United States." (Rec. Doc. 4486, ¶ 171).

V. CONCLUSION

Thus, for all the reasons stated herein, because Miss. Code § 33-15-21(b) would apply to a private person under similar circumstances, the Government is shielded from all remaining FTCA liability. Accordingly,

IT IS ORDERED that Defendant United States' Motion to Dismiss the Remaining FTCA Claims of All "Mississippi Plaintiffs" for Lack of Subject-Matter Jurisdiction Based Upon No Analogous Private Liability (Rec. Doc. 7690) is GRANTED. Thus, all of Mississippi Plaintiffs' FTCA claims are dismissed for lack of subject matter jurisdiction.