Cunningham et al v. USAA Casualty Insurance Company

Filing 11

MEMORANDUM OPINION AND ORDER The undersigned to whom this case is assigned does not employ the "Uniform Initial Order" found on the court's website; see within for further instruction reminding the parties that the case is governed by the Federal Rules of Civil Procedure, including local rule variations. Also, due to the reasons noted within, Defendant's 5 withdrawal of its motion to dismiss or transfer is DENIED as moot. Signed by Judge William M Acker, Jr on 5/16/16. (SAC, )

FILED
2016 May-16 PM 01:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH LEE CUNNINGHAM,
deceased, et al.,
Plaintiffs,
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

}
}
}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:16-cv-325-WMA

MEMORANDUM OPINION AND ORDER
THE UNDERSIGNED TO WHOM THIS CASE IS ASSIGNED DOES NOT EMPLOY
THE “UNIFORM INITIAL ORDER” FOUND ON THE COURT’S WEBSITE.
On May 3, 2016, defendant filed a withdrawal of its motion to
dismiss or transfer (Doc. 5). That motion is accordingly DENIED as
moot.

Defendant

concurrently

filed

an

answer

to

plaintiffs’

complaint, asserting several affirmative defenses, including, inter
alia,

lack

of

subject-matter

jurisdiction,

lack

of

personal

jurisdiction, insufficient process, and insufficient service of
process. The court finds the latter three grounds waived because
defendant omitted them from its original motion asserting only
improper venue. See Fed. R. Civ. P. 12(h)(1)(A). As to lack of
subject-matter jurisdiction, defendant notes in its withdrawal of
its motion to dismiss that it contests plaintiffs’ allegation that
the deceased was an Alabama citizen, thus calling diversity of
citizenship into question. This constitutes a factual challenge to
subject-matter jurisdiction, which would require the court to weigh

the

evidence

and

factually

determine

the

citizenship

of

the

deceased. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990). In the absence of a formal motion or specific citations to
evidence, however, the court will not entertain this factual
challenge. Defendant of course may make such a motion at any time,
but, given the facial sufficiency of plaintiffs’ jurisdictional
allegations, the court will not undertake the inquiry sua sponte.
The parties are hereby reminded that the case is governed by
the

Federal

Rules

of

Civil

Procedure,

including

local

rule

variations. The parties should pay particular attention to Fed. R.
Civ. P. 26 and 16 and should with their initial report notify the
court if the case should be evaluated for proceeding upon any of
the tracks provided by the court's Alternative Dispute Resolution
Plan.
DONE this 16th day of May, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE