Cunningham et al v. USAA Casualty Insurance Company

Filing 6

MEMORANDUM OPINION AND ORDER re 5 MOTION to Dismiss- The parties are permitted to conduct limited discovery regarding the proper venue of this action. Plaintiffs' response to the motion shall be submitted by May 9, 2016. Defendant's reply shall be submitted by May 16, 2016. Signed by Judge William M Acker, Jr on 4/11/16. (SAC )

FILED
2016 Apr-11 PM 04:25
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.,

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Plaintiffs,
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

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

MEMORANDUM OPINION AND ORDER
In this action, plaintiffs assert a claim for underinsured
motorist

benefits

against

defendant

arising

out

of

a

fatal

automobile accident in Georgia. Plaintiffs allege that Joseph Lee
Cunningham, the deceased, was an Alabama citizen before his death.
Defendant has moved to dismiss the action for improper venue under
Fed. R. Civ. P. 12(b)(3) or for transfer under 28 U.S.C. § 1404(a).
Defendant

argues

that

the

insurance

policy

contains

a

forum

selection clause that requires any related legal action to be
brought in the state of the insured’s residence and that Cunningham
actually last lived in Kansas and Georgia, not Alabama. Defendant
thus seeks dismissal of the action or transfer to a Kansas or
Georgia court. It attached to the motion a copy of the insurance
policy

and

an

affidavit

regarding

Cunningham’s

last

known

residence.
Defendant’s motion presents two problems. First, the court has
scoured the insurance policy submitted but cannot locate the forum

selection clause purportedly quoted by defendant. Defendant’s vague
citation to “Exhibit A,” a forty-four page document, as the source
of the quotation is unhelpful.
Second, defendant’s assertion of Cunningham’s citizenship is
directly contrary to the allegations of the complaint, and it
relies on a submitted affidavit to support that assertion. When
reviewing a Rule 12(b)(3) motion, the court accepts the allegations
of the complaint as true, but “only ‘to the extent they are
uncontroverted by defendant[’s] affidavits.’” Estate of Myhra v.
Royal Carribean Cruises, Ltd., 695 F.3d 1233, 1239 (11th Cir. 2012)
(quoting Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355
(11th Cir. 1990)). When the parties submit conflicting affidavits,
the court “is inclined to give greater weight to the plaintiff’s
version of the jurisdictional facts and to construe such facts in
the

light

most

favorable

to

the

plaintiff.”

Id.

Plaintiffs,

therefore, must be provided an opportunity to submit evidence of
their own. Accordingly, the parties are permitted to conduct
limited discovery regarding the proper venue of this action.
Plaintiffs’ response to the motion shall be submitted by May 9,
2016. Defendant’s reply shall be submitted by May 16, 2016.
DONE this 11th day of April, 2016.

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