United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE
Russ Walker United States Magistrate Judge.
Canal Insurance Company ("plaintiff or
"Canal") commenced this lawsuit against defendants
INA Trucking, LLC ("INA Trucking"); Joshua Allen
Davis; and M.B.P., a minor, by and through her father, Huey
Atlas Pittman. (Doc. 1). The plaintiff seeks a declaratory
judgment pursuant to the Declaratory Judgment Act, 28 U.S.C.
§ 2201 et seq., regarding its duties under an insurance
policy to provide defense or indemnity to defendants INA
Trucking and Davis in a separate lawsuit that is pending in
the Circuit Court of Crenshaw County, Alabama styled as
M.B., a minor who sues by and through her father, Huey Alan
Pittman v. INA Trucking, LLC and Joshua Allen Davis,
Civil Action Number 24-CV-2015-900052.00 ("the
underlying action"). In the instant case, defendant
M.B.P. filed a counterclaim for declaratory judgment against
the plaintiff; specifically, M.B.P. requests a declaration
that plaintiff "is required to satisfy any judgment
obtained by M.B.P." in the underlying action. (Doc. 13
at 8). In other words, M.B.P. brings a duty to indemnify
counterclaim against Canal.
matter is before the court on (1) a motion to dismiss
M.B.P.'s counterclaim filed by the plaintiff (Doc. 19);
(2) a motion to dismiss plaintiffs complaint and M.B.P.
's counterclaim or, in the alternative, to stay these
proceedings filed by M.B.P. (Doc. 33 at 2); (3) a motion to
dismiss filed by defendant Davis (Doc. 28); and (4) a motion
to stay as to plaintiffs duty to indemnify claim filed by
Canal (Doc. 40). M.B.P. 's motion to dismiss is
analyzed under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). The remaining motions to dismiss are brought
pursuant to Federal Rule of Civil Procedure 12(b)(6). By
order entered on April 19, 2016, U.S. District Judge Myron H.
Thompson referred this case to the undersigned for action or
recommendation on all pretrial matters. (Doc. 32).
See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). For
the reasons discussed below, the undersigned Magistrate Judge
recommends that plaintiffs motion to dismiss is due to be
granted, plaintiffs motion to stay its duty to indemnify
claim is due to be denied as moot, M.B.P. 's motions are
due to be denied except that the motion to dismiss is due to
be granted as to plaintiffs duty to indemnify claim, and
defendant Davis' motion to dismiss is due to be denied.
Federal Rule of Civil Procedure 12(b)(6)
12(b)(6) motion to dismiss tests the sufficiency of the
Complaint against the legal standard set forth in Rule 8:
"a short and plain statement of the claim showing that
the pleader is entitled to relief" Fed.R.Civ.P. 8(a)(2).
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the
court must take "the factual allegations in the
complaint as true and construe them in the light most
favorable to the plaintiff." Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
However, "the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions." Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). "[A] plaintiffs obligation to
provide the 'grounds' of his ' entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." BellAtl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). "Determining whether a complaint
states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 663 (alteration in original) (citation
omitted). "[F]acial plausibility" exists "when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citing
Twombly, 550 U.S. at 556). The standard also
"calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence" of the
claim. Twombly, 550 U.S. at 556. While the complaint
need not set out "detailed factual allegations, "
it must provide sufficient factual amplification "to
raise a right to relief above the speculative level."
Id. at 555.
when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief, 'this basic
deficiency should ... be exposed at the point of minimum
expenditure of time and money by the parties and the
court.'" Twombly, 550 U.S. 558 (quoting 5
Wight & Miller § 1216, at 233-34 (quoting, in turn,
Daves v. Hawaiian Dredging Co., 114 F.Supp.
643, 645 (D. Haw. 1953)). "[O]nly a complaint that
states a plausible claim for relief survives a motion to
dismiss." Iqbal, 556 U.S. at 679 (citing
Twombly, 550 U.S. at 556).
In keeping with these principles a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled
to the assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be supported
by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
Iqbal, 556 U.S. at 679.
Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) standard of review was summarized in
Greenwell v. University of Alabama Bd. of Trustees,
2012 WL 3637768 (N.D. Ala. Aug. 22, 2012). The court
Challenges to subject-matter jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure can exist in two
substantially different forms: facial attacks and factual
attacks. Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1260 (11th Cir. 2009). When presented with a facial
attack on the complaint, the court determines whether the
complaint has sufficiently alleged subject-matter
jurisdiction. Sinaltrainal, 578 F.3d at 1260. The
court proceeds as if it were evaluating a Rule 12(b)(6)
motion; that is, it views the complaint in the light most
favorable to the plaintiff and accepts all well-pled facts
alleged in the complaint as true. Id.
On the other hand, factual attacks question "the
existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are
considered." Id. (citing Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). When a
court is confronted with a factual attack, the standard of
review diverges considerably:
[T]he trial court may proceed as it never could under
12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual
12(b)(1) motion is the trial court's jurisdiction-its
very power to hear the case-there is substantial authority
that the trial court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case. In short, no presumptive truthfulness attaches to
plaintiffs allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
Lawrence, 919 F.2d at 1529 (citing Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir.), cert,
denied, 454 U.S. 897 (1981)). When a district court has
pending before it both a 12(b)(1) motion and a 12(b)(6)
motion, the generally preferable approach, if the 12(b)(1)
motion essentially challenges the existence of a federal
cause of action, is for the court to find jurisdiction and
then decide the 12(b)(6) motion. Jones v. State of
Ga., 725 F.2d 622, 623 (11th Cir. 1984).
Greenwell at *5 (alterations in original); see
also McCoy v. Mallinckrodt Pharm., Inc., 2016 WL
1544732, at *2 (M.D. Ala. Mar. 23, 2016), report and
recommendation adopted, 2016 WL 1465967 (M.D. Ala. Apr.
14, 2016) (quoting Greenwell standard of review).
challenge before the court is a facial challenge - i.e.,
M.B.P. challenges the ripeness of plaintiff s duty to
indemnify claim based on the allegations of the complaint.
(Doc. 1 at 3 (plaintiff asserts that the underlying action is
ongoing and that the matter of indemnity is
AND PROCEDURAL HISTORY
Pittman, acting on behalf of M.B.P., commenced the underlying
action against INA Trucking and Mr. Davis on September 8,
2015. (Doc. 1 at 3; Doc. 1-1). In that action, Pittman
alleges, inter alia, that, "[o]n or about July
12, 2015, " his daughter, M.B.P., "was a front seat
passenger of a tractor trailer truck operated by ... Joshua
Allen Davis" and owned by INA Trucking. (Doc. 1-1 at 3).
Pittman asserts that Davis, while acting as an agent or
employee of INA Trucking, "caused the vehicle he was
operating to leave the roadway and strike a culvert."
(Id.). After the collision, Davis allegedly
"left the scene." (Id.). Pittman avers
that M.B.P. "sustained a skull fracture and various
other injuries ...