United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion to Dismiss
(Doc. # 4), Defendants' Motion to Dismiss Amended
Complaint (Doc. # 13), and Defendants' Buttram &
Mamucud Motion to Dismiss or, in the Alternative, Motion for
Judgment on the Pleadings (Doc. # 14). The parties have fully
briefed Defendants' initial Motion to
Dismiss. (Docs. # 7, 8). The court directed the
parties to brief the final Motion to Dismiss in accordance
with Exhibit B. (Doc. # 15). Yet, Plaintiff has not responded
to the motions filed after it submitted the Amended
Complaint. Accordingly, the court finds that the motions are
under submission and due to be ruled upon. After careful
review, the court concludes that Plaintiff's claims for
declaratory relief are due to be dismissed without prejudice
for lack of subject matter jurisdiction.
issued a commercial general liability policy to Defendant
Mays Auto Service, Inc., in January 2015. (Doc. # 10 at
¶ 11). In August 2016, Defendants Jennifer Mamucud and
Jane Buttram, who represent the estates of two deceased
individuals, filed a wrongful-death suit against Mays Auto
Service in Alabama state court for claims arising from an
accident that occurred in February 2015. (Id. at
¶ 13). In October 2016, Defendants Mamucud and Buttram
amended their state-court complaint to include Defendants
Scott Mays, David Mays, and Brian Tucker as defendants.
(Id. at ¶¶ 15-16). Plaintiff is currently
providing a defense to Defendants Mays Auto Service, Scott
Mays, David Mays, and Brian Tucker (hereinafter “the
Mays Auto Defendants”) in the state-court action.
(Id. at ¶ 17).
Count I of the Amended Complaint, Plaintiff alleges that the
commercial insurance policy it issued to Mays Auto covered
bodily injury and property damages arising from the
maintenance or use of a “hired auto” or a
“non-owned auto.” (Id. at ¶ 20).
But, it alleges that the commercial insurance policy does not
cover damages arising from the February 2015 accident because
the vehicle involved in the accident was not being used by
the insured individuals and company. (Id. at ¶
23). In the alternative, it alleges that the policy does not
cover damages arising from the accident because the vehicle
was not being used “in the business of Mays Auto
Service.” (Id. at ¶ 24). Plaintiff seeks
a declaratory judgment that (1) it has no duty to pay a
judgment from the state-court action against any of the Mays
Auto Defendants, and (2) it has no duty to defend them in the
state-court action. (Id. at p. 9-10).
Standards of Review
have requested dismissal of this action arguing that the
court lacks subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “A federal district court is under a
mandatory duty to dismiss a suit over which it has no
jurisdiction.” Se. Bank, N.A. v. Gold Coast
Graphics Grp. Partners, 149 F.R.D. 681, 683 (S.D. Fla.
1993) (citing Stanley v. Cent. Intelligence Agency,
639 F.2d 1146, 1157 (5th Cir. 1981); 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 a factual
attack. Willett v. United States, 24 F.Supp.3d 1167,
1173 (M.D. Ala. 2014) (citing McElmurray v. Consol.
Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251
(11th Cir. 2007)). “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, 1529 (11th Cir.
1990)) (other citations omitted and alterations adopted). On
the other hand, “factual attacks” challenge
“the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside of the
pleadings, such as testimony and affidavits, are
considered.” Id. (quotation marks omitted). 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).
the 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
plaintiff's 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 (quoting Williamson
v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).
reasons explained below, both of Plaintiff's declaratory
relief claims are due to be dismissed for lack of subject