Wesco Insurance Company v. Archer Landscape Group, LLC et al
MEMORANDUM OPINION re 17 Order on Motion to Dismiss/Lack of Jurisdiction. Signed by District Judge Sharion Aycock on 8/25/2017. (adm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
WESCO INSURANCE COMPANY
CIVIL ACTION NO.: 1:16-cv-00165-SA-DAS
ARCHER LANDSCAPE GROUP, LLC,
RICHARD STRACHAN, and
This declaratory judgment action is before the Court on Defendant Timothy Brasfield’s
Motion to Dismiss for Lack of Jurisdiction . Plaintiff responded, but Defendant Brasfield
declined to file a timely reply.
Factual and Procedural History
Wesco Insurance Company filed its Complaint for Declaratory Judgment against
Defendants on September 9, 2016. Plaintiff Wesco’s request for declaratory judgment relates to a
policy of insurance it issued to Defendant Archer Landscape Group, LLC, concerning a claim
asserted by Brasfield against Archer Landscape Group, LLC, Sellers and Strachan, which was
filed in the Circuit Court of Alcorn County, Mississippi. In that underlying state suit, Brasfield
alleges general negligence and “special acts of negligence” related to injuries he suffered while
working with Archer Landscape Group, LLC. Brasfield alleges that while working to repair a
broken post on a shed, he suffered serious and permanent injuries when his arm was caught in an
auger. The incident resulted in amputation of his left arm, removal of his spleen and a hole in his
diaphragm. Wesco asserts that the policy issued by Wesco to Archer Landscape Group, LLC
contains an exclusion for employer’s liability, which would bar Brasfield’s claim from policy
coverage. Brasfield filed its Motion to Dismiss, arguing that jurisdiction has vested in the state
court, leaving the federal district court unable to entertain Wesco’s action.
Motion to Dismiss Standard
Defendant argues that it is entitled to dismissal for lack of subject-matter jurisdiction and
a lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and (2). “A
case is properly dismissed for lack of subject matter jurisdiction when the court lacks the
statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v.
City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quotation omitted). When the Court’s
subject-matter jurisdiction is challenged, the party asserting jurisdiction bears the burden of
establishing it. King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 413 (5th Cir. 2013). The
party who seeks to invoke the jurisdiction of the federal court “must prove by a preponderance of
the evidence that the court has jurisdiction based on the complaint and evidence.” Ballew v.
Cont’l Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012).
Regarding personal jurisdiction, the plaintiff need not establish jurisdiction by a
preponderance of the evidence; a prima facie showing suffices. Luv N’ Care, Ltd. v. Insta–Mix,
Inc., 438 F.3d 465, 469 (5th Cir. 2006) (quoting Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir.
1982)). When determining whether a prima facie case for jurisdiction exists, “[t]he district court
is not obligated to consult only the assertions in the plaintiff’s complaint . . . [r]ather, the district
court may consider the contents of the record at the time of the motion . . . .” Paz v. Brush
Engineered Materials, Inc., 445 F.3d 809, 812 (5th Cir. 2006). In this regard, all “uncontroverted
allegations in the plaintiff’s complaint must be taken as true, and conflicts between the facts
contained in the parties’ affidavits must be resolved in the plaintiff’s favor.” Gatte v. Dohm, 574
F. App’x. 327, 330 (5th Cir. 2014) (quoting D.J. Investments Inc. v. Metzeler Motorcycle Tire
Agent Gregg, Inc., 754 F.2d 542, 546 (5th Cir. 1985)).
Discussion and Analysis
Defendant fails to articulate its argument regarding the purported lack of personal
jurisdiction. In any event, Plaintiff properly alleged personal jurisdiction in its Complaint and
Response to Defendant’s Motion. All Defendants in this matter are purportedly residents of
Alcorn County, Mississippi, and all Defendants were properly served in Mississippi.
Furthermore, this Court has subject matter jurisdiction over Plaintiff’s claims. Diversity
jurisdiction, as prescribed by 28 U.S.C. Section 1332, requires that “all persons on one side of
the controversy be citizens of different states than all persons on the other side.” Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (internal quotation marks omitted). For
purposes of diversity jurisdiction, the citizenship of an LLC “is determined by the citizenship of
all its members.” Id. at 1079-80.
According to Plaintiff’s Complaint and Response to the Motion to Dismiss, Plaintiff is a
corporation organized and existing under the laws of the state of Delaware, with its principal
place of business in New York, New York. Defendant Archer Landscape Group, LLC, is a
Mississippi limited liability company organized and existing under the laws of the state of
Mississippi, with Mississippi residents as its sole members, purportedly Gerald Sellers and his
wife. Further, all individual defendants are adult resident citizens of the state of Mississippi.
Accordingly, because there is complete diversity of citizenship between the Plaintiff and the
Defendants, and the amount in controversy exceeds the sum or value of seventy-five thousand
dollars, Plaintiff has met its burden of alleging subject matter jurisdiction pursuant to 28 U.S.C. §
However, without providing any precedent or legal justification, Defendant moves the
Court to enter an order dismissing the action due to a lack of jurisdiction, because jurisdiction
was “vested in state court prior to filing in federal court.” Indeed, “[a] case is properly dismissed
for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power
to adjudicate the case.” Home Builders, 143 F.3d at 1010 (internal quotation marks omitted).
Motions to dismiss under Rule 12(b)(1) challenge a court’s “very power to hear the case,” and
the court may therefore “weigh the evidence and satisfy itself” that subject matter jurisdiction
exists. MDPhysicians & Assocs., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.
1992) (internal quotation marks omitted).
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202, 63 L. Ed.
2d 479 (1980). Subject-matter jurisdiction to issue a declaratory judgment exists only when there
is an “actual controversy” between the parties. See 28 U.S.C. § 2201(a) (2012); see also Texas v.
West Publ’g. Co., 882 F.2d 171, 175 (5th Cir. 1989). The “actual controversy” requirement
under the Declaratory Judgment Act is identical to the “case or controversy” requirement of
Article III of the Constitution. West Publ’g. Co., 882 F.2d at 175. “Whether particular facts are
sufficiently immediate to establish an actual controversy is a question that must be addressed on
a case-by-case basis.” Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 896 (5th Cir. 2000).
“[T]he Declaratory Judgment Act has been understood to confer on federal courts unique
and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven
Falls Co., 515 U.S. 277, 286, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). “In the declaratory
judgment context, the normal principle that federal courts should adjudicate claims within their
jurisdiction yields to considerations of practicality and wise judicial administration.” Id. at 289,
115 S. Ct. 2137.
When determining whether to adjudicate a declaratory judgment action, a district court
should ask “(1) whether the declaratory action is justiciable; (2) whether the court has the
authority to grant declaratory relief; and (3) whether to exercise its discretion to decide or
dismiss the action.” Sherwin–Williams Co. v. Holmes County, 343 F.3d 383, 387 (5th Cir.
2003) (reversing dismissal on abstention grounds) (citing Orix, 212 F.3d at 895); see also
Allstate Ins. Co. v. Melton, 482 F. Supp. 2d 775, 779 (S.D. Miss. 2007). As there is an actual
controversy among the parties regarding coverage under the policy, this action is justiciable.
Furthermore, this court has authority1 to decide this declaratory judgment because diversity
jurisdiction is present and the Anti-Injunction Act does not apply because there is no pending
state court action between the parties. Sherwin–Williams, 343 F.3d 387–88. However, though not
explicitly proposing that the Court abstain, Defendant seems to move the Court to examine
whether it should exercise its authority over this suit.
The final Orix step, whether the Court should exercise its discretion to decide or dismiss
the case, requires consideration of the seven non-exclusive factors announced by the Fifth Circuit
in St. Paul Insurance Co. v. Trejo:
(1) whether there is a pending state action in which all of the matters in
controversy may be fully litigated;
(2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the
A district court does not have authority to consider the merits of a declaratory judgment action when: (1) the
declaratory defendant previously filed a cause of action in state court; (2) the state case involved the same issues as
those in the federal court; and (3) the district court is prohibited from enjoining the state proceedings under section
2283. Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, Inc., 996 F.2d 774, 776 (5th Cir. 1993) (citing Texas
Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 506 (5th Cir. 1988)). Section 2283 provides: “A court of the United
States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
(3) whether the plaintiff engaged in forum shopping in bringing the suit;
(4) whether possible inequities in allowing the declaratory plaintiff to gain
precedence in time or to change forums exist;
(5) whether the federal court is a convenient forum for the parties and
(6) whether retaining the lawsuit would serve the purposes of judicial
(7) whether the federal court is being called on to construe a state judicial
decree involving the same parties and entered by the court before whom
the parallel state suit between the same parties is pending.
39 F.3d 585, 590-91 (5th Cir. 1994). These considerations have been generally grouped into
considerations of federalism/comity, fairness, and efficiency. See Sherwin–Williams Co., 343
F.3d at 390-91.
The central issue in this matter concerns whether the insurance policy issued by Wesco to
Archer Landscape Group, LLC provides coverage for Brasfield’s injuries. That is not the issue
before the state court, as Wesco is not a party in the state court action. Additionally, Defendant
Brasfield has indicated that he intends to amend his complaint in the underlying suit, but the
proposed amended complaint does not name Wesco as a party. Therefore, comity does not
require abstention because there is no pending state action in which all of the matters in
controversy may be fully litigated. Next, there are no clear issues regarding fairness, as
articulated by the second, third, and fourth Trejo factors.
Plaintiff has sought declaratory
judgment on an insurance coverage issue, invoking “standard diversity jurisdiction to resolve
issues traditionally resolved in declaratory judgment actions.” Id. at 398. The Court finds that
Plaintiff did not improperly file in anticipation of suit or engage in improper forum shopping,
and there exist no possible inequities related to precedence in time or forums in allowing the
Plaintiff to proceed. See Union Ins. Co. v. Nunnery, No. 3:08CV693-DPJ, 2009 WL 1421055, at
*3 (S.D. Miss. May 19, 2009) (citing Sherwin–Williams Co., 343 F.3d at 389) (“Merely filing a
declaratory judgment action in a federal court with jurisdiction to hear it, in anticipation of state
court litigation, is not in itself improper anticipatory litigation or otherwise abusive ‘forum
The remaining factors address efficiency considerations. The fifth Trejo factor, whether
the Court is a convenient forum for the parties and witnesses, weighs only slightly in favor of
abstention. This Court, though not in Defendants’ hometown, lies in the Defendants’ federal
district, and is therefore a minimally less convenient forum than the Circuit Court of Alcorn
County, Mississippi. See Sherwin-Williams, 343 F.3d at 400 (“The fact that it would not be as
convenient for all the declaratory judgment defendants to litigate in federal district court as it
would be for them to litigate in the nearest state courthouse does not mean that it is unduly
burdensome for them to do so); see also Dow Agrosciences v. Bates, 332 F.3d 323, 328 (5th Cir.
2003). The sixth Trejo factor, whether retaining the lawsuit would serve the purposes of judicial
economy, weighs against abstention. The coverage issues have not been presented in state court,
nor could they be adjudicated without Plaintiff’s presence. Finally, the seventh Trejo factor,
whether the federal court is being called upon to construe a state judicial decree involving the
same parties and entered by the court before whom the parallel state suit between the same
parties is pending, is currently inapplicable.
Indeed, the considerations of federalism/comity, fairness, and efficiency mostly weigh
against abstention. Therefore, the Court concludes that it has the authority to decide the
declaratory judgment action under the Orix factors and that it should retain jurisdiction for the
reasons stated in Trejo.
Plaintiff successfully alleged both personal jurisdiction and subject matter jurisdiction.
To the extent that Defendant argues that the Court should choose to abstain from exercising that
jurisdiction, the Defendant’s request is denied. Accordingly, Defendant Brasfield’s Motion to
Dismiss is DENIED.
SO ORDERED this the 25th day of August, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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