United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF DECISION
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE
action is before the court on Defendant Rami Achdut's
(“Defendant” or “Achdut”) Motion to
Dismiss (Doc. # 10), filed on April 27, 2017. Defendant's
motion is fully briefed. (Docs. # 14, 18, 19). For the
following reasons, Defendant's Motion to Dismiss (Doc. #
10) is due to be denied.
an insurance company incorporated in the state of Iowa,
brought this action against Defendants, residents of the
state of Alabama and an Alabama corporation, by filing its
Complaint for Declaratory Judgment on March 21, 2017. (Doc. #
1). On April 10, 2017, Plaintiff filed its Amended Complaint
for Declaratory Judgment. (Doc. # 7). Plaintiff's
declaratory judgment action requests that the court determine
whether it has a duty to defend and indemnify Defendants
Achdut and Mo's Paint and Body Shop, Inc. f/k/a,
Highline Imports (“Highline”) in the underlying
action Jeff Huff v. Highline Imports, Inc., et al.
(“Underlying Action”) -- Alabama docket number
CV-2015-903124 -- filed on August 12, 2015 in the Circuit
Court of Jefferson County. (Doc. # 7 at 2). The Underlying
Action alleges breach of contract, deceit, and fraud claims
arising from an alleged employment contract. (Id.).
contends that subject matter jurisdiction exists pursuant to
28 U.S.C. § 1332. “Under § 1332, a district
court has jurisdiction over any civil case if (1) the parties
are ‘citizens of different States' and (2)
‘the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interests and costs.'”
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261
(11th Cir. 2000) (citing 28 U.S.C. § 1332). Here,
Defendant contests the amount in controversy.
Complaint, Plaintiff alleges that the amount in controversy
exceeds the sum of $75, 000. (Doc. # 7 at 3). While
Plaintiff's Amended Complaint does not include an ad
damnum clause, it alleges the amount in controversy,
exclusive of interest and costs, is comprised of salary and
benefits owed to defendant Jeff Huff (“Huff”), in
addition to the cost of separate defenses for Defendants
Achdut and Highline. (Id.)
motion to dismiss, Defendant contends that the amount in
controversy is not met. (Doc. # 10 at 1). Specifically,
Achdut argues the amount in controversy stated on the face of
the Amended Complaint is conclusory and not supported by a
preponderance of the evidence. (Id. at 5).
Defendant's motion includes exhibits which purport to
show that the amount in controversy is less than $75, 000.
(Doc. # 10-1)
attached an affidavit as an exhibit to its response brief,
which details the current budget for the defense of Achdut
and Highline and the amount it had paid for the cost of
defense as of May 15, 2017 (“Exhibit 1”). (Doc. #
14-1 at 3). Additionally, Plaintiff provided redacted
attorney correspondence in which counsel for Huff attested
Huff had made a demand in the amount of $175, 000 and that he
believed “[Huff] will be able to blackboard at least
$100, 000 in damages” (“Exhibit 2”). (Doc.
# 14 at 7, Doc. # 14-1 at 6). Defendant filed an objection to
Exhibit 2 on May 18, 2017. (Doc. # 19).
Legal Standards For 12(b)(1) Motions
“The party seeking to invoke federal jurisdiction bears
the burden of proving by a preponderance of the evidence that
the claim on which it is basing jurisdiction meets the
jurisdictional minimum.” SUA Ins. Co. v. Classic
Home Builders, LLC, 751 F.Supp.2d 1245, 1248 (S.D. Ala.
2010) (citing Federal Mutial Ins. Co. v. McKinnon Motors,
LLC, 329 F.3d 805, 807 (11th Cir. 2003)). “A
federal district court is under a mandatory duty to dismiss a
suit over which it has no jurisdiction.” Southeast
Bank, N.A. v. Gold Coats Graphics Grp. Partners, 149
F.R.D. 681, 683 (S.D. Fla. 1993) (citing Stanley v.
Central Intelligence Agency, 639 F.2d 1146, 1157 (5th
Cir. 1991); Marshall v. Gibson's Prods., Inc. of
Plano, 584 F.2d 668, 671-72 (5th Cir. 1978)).
12(b)(1) motion may present a facial attack or factual
attack. Willet v. United States, 24 F.Supp.3d 1167,
1173 (M.D. Ala. 2014) (citing McElmurray v. Consol. Govt.
of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir.
2011)). “Facial attacks on the complaint
‘require the court merely to look and see if [the]
plaintiff has sufficiently alleged a basis of subject-matter
jurisdiction, and the allegations in his complaint are taken
as true for the purposes of the motion.'”
Garcia v. Copenhaver, Bell & Assocs., M.D.'s,
P.A., 104 F.3d 1256, 1261 (11th Cir. 1997) (quoting
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th
Cir. 1990)) (other citations omitted). On the other hand,
“factual attacks” challenge “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.
In other words, when a party raises a factual attack to
subject-matter jurisdiction, the court is not obligated to
take the allegations in the complaint as true, but may
consider extrinsic evidence such as affidavits. Odyssey
Marine Exploration, Inc. v.Unidentified Shipwrecked
Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011) (citations
court is confronted with a factual attack:
[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
[P]laintiff's allegations, and the existence of ...