United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE.
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
FACTUAL AND PROCEDURAL BACKGROUND
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:
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.
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.
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.
STANDARD OF REVIEW
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).
“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.
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).
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