American Family Mutual Insurance Company v. Deck et al
MEMORANDUM AND ORDER TO SHOW CAUSE. (See Full Order.) IT IS HEREBY ORDERED that not later than Friday, June 17, 2016the parties shall each file a brief addressing whether this declaratory judgment action presents a justiciable case or controversy as contemplated under Article III of the United States Constitution. In its brief, plaintiff American Family must show cause why this case should not be dismissed without prejudice for lack of a justiciable controversy. No additional briefing will be permitted. Signed by District Judge Catherine D. Perry on 6/8/2016. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AMERICAN FAMILY MUTUAL
CHRIS DECK, et al.,
No. 4:16CV315 CDP
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff American Family Mutual Insurance Company brings this declaratory
judgment action requesting that I determine “whether or not” a certain policy of
insurance provides coverage for a loss caused by fire and, further, declare its rights
and obligations under the policy as it relates to the defendants in this action. The
Clerk of Court has entered default against defendants Chris and Nichole Deck, as
well as against defendant Decks Auto & Transmission, Inc., given their failure to
timely answer or otherwise respond to the complaint. American Family has filed a
motion for judgment on the pleadings or, in the alternative, default judgment against
these defendants. Defendants Daniel J. and Barbara J. Evans have answered the
As discussed with counsel at the scheduling conference, there appears to be
no justiciable case or controversy in this action. American Family does not allege
in its complaint that coverage does not exist for the insurance claim, nor does it
allege that it denied any claim made under the policy. Indeed, it does not even
allege any conduct by the defendants that would render the policy inapplicable to the
claimed loss. Instead, it simply asks me to determine “whether or not” there is
coverage under the policy. To me, this appears to be a request that I give an
advisory opinion on an abstract, hypothetical, or contingent question – a power that I
do not have, even in a declaratory judgment action. Alabama State Fed’n of Labor,
Local Union No. 103, United Bhd. of Carpenters & Joiners of Am. v. McAdory, 325
U.S. 450, 461 (1945). Although plaintiff’s counsel referred me to Johnson v.
Allstate Indem. Co., 278 S.W.3d 228 (Mo. Ct. App. 2009), as its source for the
manner by which it is pursuing this action, my review of that case does not show it to
permit, encourage, or even suggest that advisory opinions be sought by way of
declaratory judgment actions in circumstances akin to those of this case.
Rather than dismiss the case at this time, I will give the parties the opportunity
to brief the issue of whether this case presents a justiciable case or controversy to
bring it within this Court’s jurisdiction under Article III of the United States
IT IS HEREBY ORDERED that not later than Friday, June 17, 2016¸the
parties shall each file a brief addressing whether this declaratory judgment action
presents a justiciable case or controversy as contemplated under Article III of the
United States Constitution. In its brief, plaintiff American Family must show cause
why this case should not be dismissed without prejudice for lack of a justiciable
No additional briefing will be permitted.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of June, 2016.
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