Thomas et al v. Aigen et al
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE 48 MOTION for Leave To Amend Complaint to Plaintiffs' right to refile their motion and propose a new second amended complaint that adequately addresses all the jurisdictional issues discussed herein. The deadline for Plaintiffs to file a new motion for leave to amend and accompanying jurisdictional/discretionary brief is no later than December 20, 2017. Signed by Judge Virginia Emerson Hopkins on 12/6/2017. (JLC)
2017 Dec-06 PM 03:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
T’NELL THOMAS, et al.,
DOUGLAS REED AIGEN, et al.,
) Case No.: 1:17-CV-0023-VEH
MEMORANDUM OPINION AND ORDER
Plaintiffs T’Nell Thomas and Clarence Joseph initiated this personal injury
action on January 5, 2017, against Defendants Douglas Reed Aigen (“Mr. Aigen”)
and Hi Mountain Trucking, Inc. (“Hi Mountain”). (Doc. 1). Pending before the Court
is Plaintiffs’ Motion for Leave To Amend Complaint (doc. 48) (the “Leave Motion”)
filed on December 1, 2017, pursuant to Rule 15 of the Federal Rules of Civil
In their Leave Motion, Plaintiffs seek to add 3 new defendants to this litigation:
Hi American Transportation, Inc. (“Hi American”), Dublin Logistics, Inc. (“Dublin”),
and Qualitas Insurance Company (“Qualitas”). (Doc. 48 at 1 ¶ 3). Plaintiffs also seek
The deadline for Plaintiffs to amend under the Scheduling Order expired on December
1, 2017. (Doc. 40 at 2 ¶ B).
to assert a declaratory judgment count relating to insurance coverage. (Doc. 48 at 2
¶ 5). Mr. Aigen and Hi Mountain do not oppose Plaintiffs’ Leave Motion. (Doc. 48
at 1 ¶ 1).
Attached to the Leave Motion is Plaintiffs’ proposed second amended
complaint. (Doc. 48-1). Count One is a negligence claim asserted against Mr. Aigen,
Hi Mountain, Hi American, and Dublin. (Doc. 48-1 at 4-5 ¶¶ 20-24). Count Two is
a wantonness claim asserted against this same set of parties. (Id. at 5-7 ¶¶ 25-29).
Count Three is a negligent and/or wanton hiring, training, and entrustment claim
asserted against Hi Mountain, Hi American, and Dublin. (Id. at 7-8 ¶¶ 30-33). Finally,
Count Four is a claim filed against Mr. Aigen, Hi Mountain, and Qualitas pursuant
to the Declaratory Judgment Act (the “Act”), 28 U.S.C. § 2201(a), regarding
insurance coverage for punitive damages. (Doc. 48-1 at 8-10 ¶¶ 34-39).
For those reasons explained below, the Leave Motion is DENIED WITHOUT
PREJUDICE to Plaintiffs’ right to refile their motion, propose a new second
amended complaint, and otherwise address the Court’s jurisdictional/discretionary
concerns as set out below.
General Principles Governing Subject Matter Jurisdiction
Unlike state courts, federal tribunals are bodies of limited jurisdiction, meaning
that the grounds for the Court’s jurisdiction over the claims asserted by the plaintiff
must be present at the time the complaint is filed and must be obvious on the face of
the complaint. FED. R. CIV. P. 8(a). The law is clear that Plaintiffs, the parties seeking
to invoke federal jurisdiction in this case, have the burden to demonstrate that the
Court has subject matter jurisdiction over each claim. See McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135
(1936) (“They are conditions which must be met by the party who seeks the exercise
of jurisdiction in his favor …. [and a]s he is seeking relief subject to this supervision,
it follows that he must carry throughout the litigation the burden of showing that he
is properly in court.”).
Further, “a federal court has an independent obligation to review its authority
to hear a case before it proceeds to the merits.” Mirage Resorts, Inc. v. Quiet Nacelle
Corp., 206 F.3d 1398, 1400-01 (11th Cir. 2000). Consequently, the Court cannot
ignore jurisdictional concerns even if the parties have none.
Relatedly, the parties can neither manufacture the existence nor waive a want
of subject matter jurisdiction. See, e.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6,
17-18, 71 S. Ct. 534, 542, 95 L. Ed. 702 (1951) (“The jurisdiction of the federal
courts is carefully guarded against expansion by judicial interpretation or by prior
action or consent of the parties.”); Sosna v. Iowa, 419 U.S. 393, 398, 95 S. Ct. 553,
556-57, 42 L. Ed. 2d 532 (1975) (“While the parties may be permitted to waive
nonjurisdictional defects, they may not by stipulation invoke the judicial power of the
United States in litigation which does not present an actual ‘case or controversy,’ and
. . . we feel obliged to address the question of mootness [or ripeness] before reaching
the merits of appellant’s claim.”) (citation omitted); Jackson v. Seaboard Coast Line
R.R. Co., 678 F.2d 992, 1000 (11th Cir. 1982) (“The jurisdiction of a court over the
subject matter of a claim involves the court’s competency to consider a given type of
case[,] and cannot be waived or otherwise conferred upon the court by the parties.”)
The Eleventh Circuit has explained that the doctrine of ripeness–one subset of
Article III’s framework for confirming the presence of a constitutionally-sound case
or controversy–involves both constitutional and prudential considerations:
When determining if a claim is ripe for judicial review, we
consider both constitutional and prudential concerns. In some
circumstances, although a claim may satisfy constitutional requirements,
prudential concerns “counsel judicial restraint.” See Digital, 121 F.3d
at 589 (quoting Action Alliance of Senior Citizens v. Heckler, 789 F.2d
931, 940 n.12 (D.C. Cir. 1986)). Our inquiry focuses on whether the
claim presented is “of sufficient concreteness to evidence a ripeness for
review.” Id. Strict application of the ripeness doctrine prevents federal
courts from rendering impermissible advisory opinions and wasting
resources through review of potential or abstract disputes. See id.
Our ripeness inquiry requires a two part “determination of (1) the
fitness of the issues for judicial decision and (2) the hardship to the
parties of withholding court consideration.” Id. (citing Abbott Lab. v.
Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 1515-16, 18 L. Ed. 2d
681 (1967)[, abrogated on other grounds by Califano v. Sanders, 430
U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192 (1977)]; Cheffer v.
Reno, 55 F.3d 1517, 1524 (11th Cir. 1995)). . . .
We have also recognized that the ripeness doctrine . . . protects
courts from abusing their role within the government and engaging in
speculative decision-making . . . .
Nat’l Advert. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005).
Further, if a claim is not ripe for review, the Eleventh Circuit has clarified that:
[T]he dismissal . . . [is one] without prejudice. Because the
general-access claim was not ripe for review, the district court did not
have subject matter jurisdiction over the claim. See Digital Properties,
Inc. v. City of Plantation, 121 F.3d 586, 591 (11th Cir. 1997) (“The
determination of ripeness ‘goes to whether the district court had subject
matter jurisdiction to hear the case.’” (citing Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.7 (11th Cir. 1989))). Thus, the district
court could not have adjudicated the merits of the general-access claim
or dismissed that claim with prejudice. See Crotwell v. Hockman–Lewis
Ltd., 734 F.2d 767, 769 (11th Cir. 1984) (changing a dismissal “with
prejudice” to a dismissal “without prejudice” on the basis that “the court
lacked subject matter jurisdiction over the action” and hence “had no
power to render a judgment on the merits”).
Georgia Advocacy Office, Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999)
Plaintiffs maintain that “[t]his Court has original jurisdiction over this action
under the provisions of 28 U.S.C. § 1332 because this action is between citizens of
different states and the amount in controversy exceeds the sum of $75,000.00,
exclusive of interests and costs.” (Doc. 48-1 at 2-3 ¶ 7).2 “Diversity jurisdiction exists
where the suit is between citizens of different states and the amount in controversy
exceeds the statutorily prescribed amount, in this case $75,000.” Williams v. Best Buy
Co., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. § 1332(a)).
Plaintiffs’ Personal Injury Counts
The Court first turns to a jurisdictional analysis of Plaintiffs’ personal injury
counts. The Court perceives no problems with the citizenship allegations made by
Plaintiffs. (Doc. 48-1 at 1-2 ¶¶ 1-7).
However, the amount-in-controversy allegation is flawed because Plaintiffs do
not clarify whether the claims of any individual plaintiff exceed the $75,000
threshold. Instead, Plaintiffs state generally that “[t]he amount in controversy exceeds
the sum of $75.000.00, exclusive of interest and costs.” (Doc. 48-1 at 3 ¶ 7). Section
1332(a)’s amount-in-controversy requirement does not allow the claims of multiple
plaintiffs to be aggregated to reach the jurisdictional threshold, see Zahn v. Int'l Paper
Co., 414 U.S. 291, 301, 94 S. Ct. 505, 512, 38 L. Ed. 2d 511 (1973), superseded by
Plaintiffs’ proposed second amended complaint has two paragraphs numbered “7”. This
reference is to the second one.
statute on other grounds as stated in Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 566-67, 125 S. Ct. 2611, 2625, 162 L. Ed. 2d 502 (2005), and the
claims of at least one of the individual plaintiffs must exceed the amount-incontroversy threshold for the Court to assert diversity jurisdiction. See Exxon Mobil,
545 U.S. at 559, 125 S. Ct. at 2620 (holding that if the claims of a single plaintiff
meet the jurisdictional threshold, the court may assert supplemental jurisdiction over
additional plaintiffs’ claims).
Additionally, to the extent that the personal injury claims of one of the
individual plaintiffs do potentially fall below the jurisdictional threshold to support
diversity jurisdiction, Plaintiffs’ proposed second amended complaint fails to properly
invoke 28 U.S.C. § 1367–the federal statute for supplemental jurisdiction–to permit
the exercise of subject matter jurisdiction over state law claims that could not
otherwise be brought originally in federal court. See 28 U.S.C. § 1367(a) (“[I]n any
civil action of which the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”).
Thus, Plaintiffs’ jurisdictional allegations are insufficient to invoke diversity
jurisdiction (and, if needed, supplemental jurisdiction) over Counts One, Two, and
Three of their proposed second amended complaint.
Plaintiffs’ Declaratory Judgment Count
In Count Four of their proposed second amended complaint (as mentioned
above), Plaintiffs seek a declaration that the policy of insurance provided by Qualitas
to its insureds, Mr. Aigen and Hi Mountain, is not subject to a punitive damages
exclusion. Plaintiffs indicate that a copy of the relevant policy of insurance is
attached to their proposed second amended complaint. (Doc. 48-1 at 8 ¶ 35).
However, no such exhibit appears with the CM/ECF version of the Leave Motion
filed with the Court.
The Act provides that “[i]n any case of actual controversy within its
jurisdiction . . . any court of the United States . . . may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not further
relief is or could be sought.” 28 U.S.C. § 2201(a) (emphasis added). Nonetheless,
“[e]ven if there is a case or controversy, ‘district courts possess discretion in
determining whether and when to entertain an action under the Declaratory Judgment
Act, even when the suit otherwise satisfies subject matter jurisdictional
prerequisites.’” 3M Co. v. Avery Dennison Corp., 673 F.3d 1372, 1376 (Fed. Cir.
2012) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S. Ct. 2137, 2140,
132 L. Ed. 2d 214 (1995)).
Constitutional Jurisdictional Concerns
As a general matter, the Court cannot exercise subject matter jurisdiction over
an unripe claim. The Court also cannot provide the parties with an advisory opinion
concerning coverage. Absent from Count Four–and running afoul of these commonly
understood principles–is an express allegation that Qualitas has taken a position
adverse to Plaintiffs regarding coverage of their potential punitive damages claim
against Mr. Aigen and Hi Mountain. Plaintiffs also do not allege whether Mr. Aigen
and Hi Mountain have taken any position regarding coverage for punitive damages
under the policy. A theoretical (only) dispute over coverage is insufficient to establish
subject matter jurisdiction.3
Moreover, as the underlying liability of Mr. Aigen and Hi Mountain is still
uncertain, the Court has questions about whether Plaintiffs’ declarative claim
concerning the punitive damages exclusion–a subset of the larger issue of Qualitas’s
duty to indemnity these two defendants–is ripe for adjudication even if an actual
dispute over whether Qualitas must cover the claim for punitive damages against its
insureds presently exists. Compare Am. Fid. & Cas. Co. v. Pennsylvania
In their Leave Motion, Plaintiffs assert that “there is a dispute whether the punitive
damage exclusion is effective, and, if so, whether it is trumped by the MCS-90 endorsement”
(doc. 48 at 2 ¶ 5), but similarly do not indicate the positions of Mr. Aigen, Hi Mountain, or
Threshermen & Farmers’ Mut. Cas. Ins. Co., 280 F.2d 453, 461 (5th Cir. 1960) (“The
District Court was careful to make his dismissal without prejudice to those further
rights, and it was well within its considered judicial discretion to decline to express
legal opinions on academic theoreticals which might never come to pass.”),4 and
Allstate Ins. Co. v. Employers Liab. Assur. Corp., 445 F.2d 1278, 1281 (5th Cir.
1971) (“We have held that no action for declaratory relief will lie to establish an
insurer’s liability in a policy clause contest . . . until a judgment has been rendered
against the insured since, until such judgment comes into being, the liabilities are
contingent and may never materialize.” (citing Am. Fidelity, 280 F.2d at 461)), and
Great N. Paper Co. v. Babcock & Wilcox Co., 46 F.R.D. 67, 70 (N.D. Ga. 1968)
(treating Am. Fidelity as a constitutional dismissal and finding that dispute over
indemnity “does not become a relevant ‘case or controversy’ for judicial purposes
until underlying liability is established”), with Maryland Casualty Co. v. Pacific Coal
& Oil Co., 312 U.S. 270, 274, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941) (concluding
that even though the underlying action was still pending, “[i]t is clear that there is an
actual controversy between the petitioner [i.e., the insurer] and the insured”), and
Edwards v. Sharkey, 747 F.2d 684, 686, 687 (11th Cir. 1984) (describing Am. Fidelity
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
as a discretionary dismissal, but alternatively indicating that “even if there was no
‘case or controversy’ before the district court because of the lack of a judgment
against the insured, the settlement of the tort actions provides the necessary
establishment of the insured’s liability”), and Alea London Ltd. v. Am. Home Servs.,
Inc., 638 F.3d 768, 775 n.10 (11th Cir. 2011) (rejecting ripeness challenge on the
basis of Maryland Casualty holding and distinguishing Am. Fidelity as an appeal
“involv[ing] how liability for unresolved claims should be apportioned between
several insurance companies”), and MacMillan-Bloedel, Inc. v. Firemen’s Ins. Co.
of Newark, N.J., 558 F. Supp. 596, 599, 600 (S.D. Ala. 1983) (characterizing Am.
Fidelity as a discretionary dismissal and concluding that “[e]ven if the plaintiff had
such standing, the court in the exercise of discretion would decline to entertain the
[indemnity] action at this time”), and Employers Mut. Cas. Co. v. All Seasons
Window & Door Mfg., Inc., 387 F. Supp. 2d 1205, 1210 (S.D. Ala. 2005) (“Based on
Maryland Casualty, the consistent approach of other circuits, and the absence of any
contrary Eleventh Circuit precedent, the Court concludes that the complaint presents
an ‘actual controversy’ under the Act despite the absence of a verdict or settlement
against the plaintiff’s insureds.”); cf. also Hartford Cas. Ins. Co. v. Merchants &
Farmers Bank, 928 So. 2d 1006, 1013 (Ala. 2005) (agreeing that a duty-to-indemnify
determination is “premature” because “[w]hether there is a duty to indemnify under
the policy will depend on the facts adduced at the trial . . . .”).
Further, this Court has recently held in an insurance coverage case (involving
both the duty to defend and the duty to indemnify) that it cannot retain jurisdiction
over an unripe indemnity claim. Instead, the Court must dismiss that claim without
prejudice for lack of subject matter jurisdiction–just as it would with any unripe claim
asserted outside of the insurance coverage context. See Penn-Star Ins. Co. v. Swords,
No. 4:17-CV-1041-VEH, 2017 WL 4180889, at *8-9 (N.D. Ala. Sept. 21, 2017)
(relying upon analysis in Canal Insurance Co. v. INA Trucking, LLC, No. 1:16-CV82-MHT-SRW, 2017 WL 1146984 (M.D. Ala. Mar. 10, 2017), to persuasively
support dismissal of unripe indemnity claim).5
Statutory Jurisdictional Concerns
Plaintiffs do not specifically address the statutory basis that they rely upon for
this Court’s exercise of subject matter jurisdiction over their proposed declaratory
count involving Mr. Aigen, Hi Mountain, and Qualitas. As stated above, Plaintiffs
generally assert that subject matter jurisdiction exists over the entire action pursuant
to 28 U.S.C. § 1332. However, verifying the existence of subject matter jurisdiction
is more precisely a claim-specific process. See, e.g., Santiago-Lugo v. Warden, 785
The parties in Swords agreed that the indemnity claim was not ripe. Swords, 2017 WL
4180889, at *7.
F.3d 467, 471 (11th Cir. 2015) (“This Court and the district court must have subject
matter jurisdiction over a claim in order to decide it on the merits.” (citing Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 93-102, 118 S. Ct. 1003, 1012-16, 140 L.
Ed. 2d 210 (1998))); FED. R. CIV. P. 8(a)(1) (“A pleading that states a claim for relief
must contain: (1) a short and plain statement of the grounds for the court's
jurisdiction, unless the court already has jurisdiction and the claim needs no new
In repleading, Plaintiffs must clarify which statute(s) they rely upon to support
subject matter jurisdiction (i.e., diversity jurisdiction, supplemental jurisdiction, or
both) and explain in their accompanying brief with supporting case authority why
such statute or statutes give this Court subject matter jurisdiction over this declaratory
To the extent that Plaintiffs rely upon § 1332, then they must also address
whether a realignment of the parties is appropriate for Plaintiffs’ declaratory count.
For example, if Mr. Aigen and Hi Mountain agree with Plaintiffs’ position that the
punitive damages exclusion does not apply to Plaintiffs’ underlying personal injury
claims (and Qualitas disagrees with Plaintiffs, Mr. Aigen, and Hi Mountain), then a
realignment of the parties would mean that diversity of citizenship no longer exists,
as Hi Mountain and Qualitas are both allegedly citizens of California.
If relying upon § 1332, Plaintiffs must also address why the amount-incontroversy component is satisfied. “The fact that the plaintiffs seek declaratory relief
under 28 U.S.C. § 2201, does not absolve them of the necessity of bringing
themselves within a jurisdictional statute.” Appling Cty. v. Mun. Elec. Auth. of
Georgia, 621 F.2d 1301, 1303 (5th Cir. 1980). When a plaintiff is seeking declaratory
relief under an insurance policy, the “jurisdiction is based on a claim for
indeterminate damages . . . and 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.” Federated Mut. Ins. Co. v.
McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (citing Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1356–57 (11th Cir. 1996), abrogated on other
grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072-77 (11th Cir. 2000)).
In their current proposed second amended complaint, Plaintiffs do not quantify
the value of their declaratory claim. Plaintiffs also do not address whether this Court
may even consider the value of an unripe indemnity claim when evaluating
satisfaction of the amount-in-controversy prong. These omissions leave any reliance
upon § 1332 as a basis for subject matter jurisdiction over this new count lacking.
Accordingly, the Leave Motion is DENIED WITHOUT PREJUDICE to
Plaintiffs’ right to refile their motion and propose a new second amended complaint
that adequately addresses all the jurisdictional issues discussed above.
Additionally, if Plaintiffs choose to reassert their declaratory count, then they
must attach a copy of the relevant insurance policy. Plaintiffs further must brief the
Court on the following issues related to their proposed declaratory judgment claim:6
(i) the reasons why they contend this Court should find that their declarative claim is
both constitutionally and prudentially ripe; (ii) to what extent the Court (because
diversity has been invoked as the basis for original jurisdiction) must (or should) rely
upon Alabama law regarding “premature” indemnity claims (or the laws of another
jurisdiction) to inform its determination concerning constitutional and prudential
ripeness;7 (iii) if invoking § 1367, the reasons why Plaintiffs contend that their
insurance coverage claim is “so related” to their personal injury claims (which
provide original jurisdiction) “that [it] form[s] part of the same case or controversy”;8
Plaintiffs must use pinpoint citations to all authorities included in their brief.
“‘Under the Erie doctrine, a federal court adjudicating state law claims applies the
substantive law of the state.’” Sphinx Intern., Inc. v. National Union Fire Ins. Co. of Pittsburgh,
Pa., 412 F.3d 1224, 1227 (11th Cir. 2005) (quoting Ungaro-Benages v. Dresdner Bank AG, 379
F.3d 1227, 1232 (11th Cir. 2004) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817,
82 L. Ed. 1188 (1938))). Additionally, the insurance policy may have a choice-of-law provision
that could impact this analysis.
Cf. Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1242 (11th Cir. 2007)
(“The Title VII claim was properly before the district court, and the state law claims were part of
the same nucleus of operative facts that allows the district court to assert supplemental
jurisdiction over them in accord with 28 U.S.C. § 1367.” (citing United Mine Workers v. Gibbs,
(iv) if invoking § 1332, to what extent a realignment of the parties is necessary to
evaluate the existence of diverse citizenship; (v) if invoking § 1332, to what extent
the Court can consider the value of an unripe declarative claim concerning coverage
for punitive damages to substantiate the amount-in-controversy component;9 and (vi)
to what extent the Court may discretionarily decline to exercise jurisdiction over the
coverage count on judicial-resource grounds (and assuming that subject matter
jurisdiction over it does exist) given that Plaintiffs are not are seeking a coverage
383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966))).
If Plaintiffs take the position that this Court can consider the value of an unripe policy
exclusion claim when evaluating the amount in controversy, they must identify authority that
adopts such an approach and also must address the reasoning utilized in the following cases that
hold differently in the context of an unripe bad-faith claim (arising under Florida law). Cf. Brown
v. Safeco Ins. Co. of Illinois, No. 6:13-CV-1982-ORL-31, 2014 WL 1478833, at *1 (M.D. Fla.
Apr. 14, 2014) (“[T]he Court abated Plaintiff’s bad faith claim as premature, and a non-ripe bad
faith claim has zero value with regard to the amount in controversy.”); Marquez v. State Farm
Mut. Auto. Ins. Co., No. 6:14-CV-241-ORL-36, 2014 WL 2968452, at *2 (M.D. Fla. June 30,
2014) (rejecting insurer’s argument that “the Brown decision was based upon the bad faith claim
being abated” and concluding instead that, “the value of Plaintiff's bad faith claim is not
contingent on that claim being dismissed or abated”) (emphasis in original); Wallace v. Geico
Gen. Ins. Co., No. 8:14-CV-1755-T-30AEP, 2014 WL 4540328, at *1 (M.D. Fla. Sept. 11, 2014)
(concluding that in the absence of “a final determination as to liability and damages” with respect
to the underlying claim, “this Court cannot determine that the value of the bad faith claim meets
the jurisdictional threshold of $75,000”); Warner v. Safeco Ins. Co. of Illinois, No.
8:14-CV-2652-T-36TGW, 2014 WL 12614501, at *2 (M.D. Fla. Dec. 15, 2014) (rejecting
“suggesti[on] that the allegations in the bad faith claim may be used to establish the amount in
controversy for the coverage claim”); Montanez v. Integon Indem. Corp., No.
6:15-CV-25-ORL-22KRS, 2015 WL 12839272, at *2 (M.D. Fla. Apr. 1, 2015) (“The Court
agrees with the authorities from within this District finding that a premature bad faith claim has
no present value for purposes of determining the amount of controversy.”); Berg v. Cigna Life
Ins. Co. of New York, No. 2:15-CV-270-FTM-38CM, 2015 WL 12843197, at *1 (M.D. Fla. May
6, 2015) (ordering plaintiff to show cause regarding subject matter jurisdiction given her reliance
upon “her non-ripe bad faith claim to meet the amount in controversy prong”).
determination in the capacity of insureds under their own policies, but rather as
inchoate third-party beneficiaries of a policy covering Mr. Aigen and Hi Mountain.10
The deadline for Plaintiffs to file a new motion for leave to amend and
accompanying jurisdictional/discretionary brief is no later than December 20, 2017.
DONE and ORDERED this 6th day of December, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
See Wilton, 515 U.S. at 290, 115 S. Ct. at 2144 (“We do not attempt at this time to
delineate the outer boundaries of that discretion in other cases, for example, cases raising issues
of federal law or cases in which there are no parallel state proceedings.”) (emphasis added); see
also Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d 994, 999 (8th Cir. 2005) (“We agree with
our sister circuits[, i.e., the Fourth, Sixth, and Tenth] that a federal district court is afforded
greater discretion in determining whether to exercise jurisdiction over a declaratory judgment
action than in other circumstances.”); id. (“We also agree that the district court’s discretion is
limited when no parallel proceedings are pending in state court, because in those circumstances
there are less-pressing interests of practicality and wise judicial administration.”). In Ameritas
Variable Life Ins. Co. v. Roach, 411 F.3d 1328 (11th Cir. 2005), the Eleventh Circuit adopted a
non-exhaustive list of abstention factors for a district court to consider when a parallel case is
pending in state court, id. at 1330-31, “in furtherance of the Supreme Court’s admonitions in
Brillhart [v. Excess Ins. Co. of America, 316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942)]
and Wilton.” Ameritas, 411 F.3d at 1331. What remains less clear within the Eleventh Circuit is
the level of discretion and/or framework applicable when a parallel proceeding is absent from the
discretionary equation. Cf. Swords, 2017 WL 4180889, at *6 (“The Court does not need to
analyze the Ameritas factors because this [is] not a case of parallel litigation.”).
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