Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allstate Vehicle and Property Insurance Co. v. Encarnacion

United States District Court, M.D. Alabama, Northern Division

May 22, 2019

ALLSTATE VEHICLE AND PROPERTY INSURANCE COMPANY, Plaintiff,
v.
FRANK ENCARNACION, Defendant.

          MEMORANDUM OPINION AND ORDER

          TERRY F. MOORER UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff's Request for Appointment of Umpire. Doc. 1, filed August 9, 2018. Plaintiff requests the Court to appoint an umpire pursuant to an appraisal clause in an insurance policy. Id. at 1. Also pending before the Court is Defendant's Motion to Dismiss and Response to Request for Appointment of Umpire (Doc. 5, filed September 5, 2018), in which Defendant requests the Court to dismiss this matter, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, and appoint an umpire from the list of nominees provided by Defendant. Having considered the motions and relevant law, the Court finds the motion to dismiss is due to be denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff originally filed in this Court, on August 9, 2018, its Request for Appointment of Umpire. Doc. 1. Plaintiff requests the Court to appoint an umpire pursuant to the appraisal clause of an insurance policy issued by Plaintiff in favor of Defendant. Id. at 1. Defendant submitted a claim for policy benefits and a dispute arose between the parties as to the amount payable from the claimed loss. Id. Plaintiff valued the loss at $278, 598.60 and Defendant valued that loss at $454, 329.18. Id. at 2. Because the parties failed to agree on the amount of Defendant's loss, on May 9, 2018, Defendant invoked the appraisal clause of the policy, which is as follows:

Appraisal
If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand, each party must select a competent and impartial appraiser and notify the other of the appraiser's identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence premises is located to select an umpire.

         Doc. 1-2, at 3. The parties both appointed appraisers who attempted to agree on an umpire, but were unsuccessful. Doc. 1, at 1-2. Pursuant to the policy, Plaintiff filed this action for the Court to select an umpire. Id. at 2.

         On September 5, 2018, Defendant filed his Motion to Dismiss and Response to Request for Appointment of Umpire (Doc. 5), for which the Court filed a submission order (Doc. 7). Plaintiff filed on September 26, 2018, its response to the motion to dismiss (Doc. 11), and Defendant filed on October 10, 2018, his reply (Doc. 13). The motions are fully briefed and ripe for review, and the Court finds oral argument unnecessary.

         II. STANDARD OF REVIEW

         A Fed.R.Civ.P. 12(b)(1) motion directly challenges the district court's subject matter jurisdiction. McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007); Gilmore v. Day, 125 F.Supp.2d 468, 470 (M.D. Ala. 2000). The burden of proof on a Fed.R.Civ.P. 12(b)(1) motion is on the party averring jurisdiction. Gilmore, 125 F.Supp.2d at 471 (citing Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942)). A motion to dismiss for lack of subject matter jurisdiction may occur either facially or factually. Makro v. Capital of Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir. 2008) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)); Stalley v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (citing McElmurray, 501 F.3d at 1251).

         A “facial attack” is based solely on the pleadings and requires the court to assess whether the plaintiff has alleged a sufficient basis for subject matter jurisdiction. Stalley, 524 F.3d at 1232-33; Morrison, 323 F.3d at 925 n.5; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). “On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a [Fed. R. Civ. P.] 12(b)(6) motion -- the court must consider the allegations of the complaint to be true.” Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)); see also Houston v. Marod Supermarkets, 733 F.3d 1323, 1335 (11th Cir. 2013) (evaluating whether the plaintiff “has sufficiently alleged a basis of subject matter jurisdiction” in the complaint and employing standards similar to those that govern a Fed.R.Civ.P. 12(b)(6) review). The Court is “not required to accept mere conclusory allegations as true, nor are we required to accept as true allegations in the complaint that are contrary to factual details presented in the exhibits.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007). “[W]hen the exhibits contradict the general and conclusory allegations of the pleading, the exhibits govern.” Id. at 1206. When discussing exhibits on a facial attack, the Court may consider exhibits that are attached to the complaint as well as those attached to a motion to dismiss. Lawrence v. United States, 597 Fed.Appx. 599, 602 (11th Cir. 2015). Exhibits attached to the complaint are considered part of the complaint for all purposes. Id. Further, exhibits attached to a motion to dismiss may be considered for a facial attack if the documents are central to the plaintiff's claim and their authenticity is not disputed. Id.

         On the other hand, a “factual attack” challenges “subject matter jurisdiction in fact, irrespective of the pleadings.” Morrison, 323 F.3d at 925. On a Fed.R.Civ.P. 12(b)(1) factual attack, the court “may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Lawrence, 919 F.2d at 1529. Further, in resolving a factual attack, the court “may consider extrinsic evidence such as testimony and affidavits.” Makro, 543 F.3d at 1258 (quoting Morrison, 323 F.3d at 925 n.5); accord Stalley, 524 F.3d at 1233; Miccosukee Tribe of Indians of Fla. v. U.S., E.P.A., 105 F.3d 599, 603 (11th Cir. 1997) [hereinafter Miccosukee Tribe]. “[A] trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case without presuming the truthfulness of the plaintiff's allegations.” Makro, 543 F.3d at 1528 (citation and internal quotations omitted); see also Willett v. United States, 24 F.Supp.3d 1167, 1173 (M.D. Ala. 2014) (stating same). In other words, “the district court should apply a summary judgment standard when ruling on the motion to dismiss as a factual attack on subject matter jurisdiction.” Miccosukee Tribe, 105 F.3d at 603 (citing Lawrence, 919 F.2d at 1530).

         However, the Court is not at liberty to weigh the evidence when the factual attack “also implicates an element of the cause of action.” Lawrence, 919 F.2d at 1529. The Eleventh Circuit has specifically cautioned district courts “should only rely on [Fed. R. Civ. P.] 12(b)(1) if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.Morrison, 323 F.3d at 925 (quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997) (internal quotations omitted) (emphasis in original).

         III. DISCUSSI ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.